In the matter of the Board of Inquiry into Disability Services [2002] ACTSC 28 (10 April 2002)

Last Updated: 17 April 2002

IN THE MATTER OF THE BOARD OF INQUIRY INTO DISABILITY SERVICES [2002] ACTSC 28 (10 April 2002)

CATCHWORDS

PARLIAMENTARY PRIVILEGE - whether applicable to report of Board of Inquiry conducted under Inquiries Act 1991 submitted to Chief Minister - whether retention of report by Chief Minister for tabling in Legislative Assembly - whether retention for such purpose would prevent copy from being admitted into evidence on proceedings for declaratory relief in relation to findings and recommendations.

Inquiries Act 1991, s 5

Bill of Rights 1688 (UK), article 9

Parliamentary Privileges Act 1987 (Cth), s 16

Australian Capital Territory (Self Government) Act 1988 (Cth), s 24

O'Chee v Rowley [1997] QCA 401; (1997) 150 ALR 199

Egan v Willis & Anor [1998] HCA 71; (1998) 195 CLR 424

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564

Commonwealth of Australia v Northern Land Council & Anor [1993] HCA 24; (1993) 176 CLR 604

Hall v Jones (1942) 42 SR (NSW) 203

No. SC of 847 of 2001

Judge: Crispin J

Supreme Court of the ACT

Date: 10 April 2002

IN THE SUPREME COURT OF THE )

AUSTRALIAN CAPITAL TERRITORY ) No. SC 847 of 2001

BETWEEN:

MICHAEL SZWARCBORD

First Plaintiff

AND

LYNNE GRAYSON

Second Plaintiff

AND

THE HON JOHN FOSTER GALLOP

First Defendant

ATTORNEY-GENERAL OF THE ACT

Intervenor

REASONS FOR RULING

Judge: Crispin J

Date: 10 April 2002

Place: Canberra

1. The present proceedings concern applications for declaratory relief in relation to findings and recommendations made by the first defendant in a report concerning the inquiry he had conducted following his appointment as a Board of Inquiry under s 5 of the Inquiries Act 1991.

2. At the commencement of the hearing of the applications yesterday morning, Mr Erskine of counsel sought leave to appear as amicus curiae for the purpose of making submissions on behalf of the Speaker of the ACT Legislative Assembly (`the Speaker') as to the possible application of parliamentary privilege to the report. A person appearing in that capacity does not usually adopt an adversarial position in relation to the proceedings but seeks to assist the court by raising potentially important issues and presenting legal argument as to their implications and the manner in which the might be resolved. After hearing brief argument on the application, I granted leave for him to appear in that capacity.

3. As Mr Erskine duly pointed out, parliamentary privilege was established by the provisions of article 9 of the Bill of Rights 1688 (UK). There had been some controversy as to the precise extent of the privilege and the Commonwealth Parliament apparently sought to clarify the position by the enactment of the Parliamentary Privileges Act 1987 (Cth). The relevant portions of that Act effectively govern the privilege of the ACT Legislative Assembly by virtue of s 24 of the Australian Capital Territory (Self Government) Act 1988 (Cth) which provides that until the Assembly makes provisions to the contrary it shall have the same privileges as those enjoyed by the House of Representatives.

4. Mr Erskine drew my attention to the following provisions of s 16 of the Parliamentary Privileges Act:

(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying to the Parliament, and for the purposes of this section, proceedings in Parliament, means all words spoken and acts done in the course of or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality thereof, includes:

(a) the giving of evidence before a House or a committee, and evidence so given;

(b) the presentation or submission of a document to a House or a committee;

(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purposes of:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

5. The issue raised on behalf of the Speaker was whether parliamentary privilege would effectively prevent the court from receiving in evidence the copy of the report that Mr Rayment QC, who appeared for the plaintiffs with Mr Mossop, tendered on his clients' behalf.

6. The resolution of this issue was attended by some difficulty because no evidence has yet been adduced and the only factual basis upon which I could rely was provided by means of a few agreed statements from the bar table. Yet an immediate decision is required. It would be difficult to envisage any manner in which the present application could be effectively litigated without reference to the report in which the findings and recommendations the applicants seek to impugn are contained. It has even been suggested that counsel for the plaintiffs would be unable to open the case without infringing the provisions of s 16. Furthermore, as Mr Erskine pointed out, the basis of any ruling I might make on this issue might have implications for the further conduct of the proceedings. Hence, it would be inappropriate for me to defer giving reasons for my decision.

7. The same issue arises in similar proceedings commenced by the Community Advocate, Ms McGregor, and by Ms Grayson which, whilst not consolidated with the present proceedings, are being heard with them. Accordingly, I also agreed to hear Mr Howe, who appeared on their behalf with Ms Walker, in relation to this issue.

8. Quite apart from the interests of the parties, however, the issue is of fundamental importance to the free and effective conduct of parliamentary business in the Legislative Assembly. It was, in my opinion, entirely appropriate for the Speaker to seek to have the issue raised by counsel briefed to seek leave to appear as amicus curiae and I am grateful for the assistance which has been provided to me in this manner.

9. Despite the heartening optimism expressed in the opening words of subs 16(1), Mr Erskine acknowledged that considerable doubt had been expressed as to the precise ambit of the privilege. In the course of his submissions, Mr Erskine pointed to what he described as the extraordinary breadth of the provisions contained in subss 16(2) and 16(3). The privilege applied, inter alia, to "all words spoken . . . in the course of, or for the purposes of or incidental to, the transacting of business" of the Assembly, and the breadth of even that description was effectively expanded by the provisions of the ensuing paragraphs. He also referred to the decision of the Queensland Court of Appeal in O'Chee v Rowley [1997] QCA 401; (1997) 150 ALR 199 in which McPherson JA said that acts of bringing documents into existence for such purpose or collecting, assembling or even coming into possession of documents for such a purpose were capable of amounting to "proceedings in Parliament". Mr Erskine submitted that no matter how or in what circumstances a member may have received a document, once he or she had decided to retain possession of it with a view to using it in connection with the business of the Assembly, or in anticipation of doing so, privilege was attracted. In the present case, whilst there was no direct evidence that the Chief Minister had retained the report for such a purpose or in anticipation of using it for such a purpose, an inference could be drawn from such circumstances as the provision in s 14 of the Inquiries Act authorising him to table the report, the importance of the matters to which the report related, and the fact that it was tabled as soon as an interlocutory injunction restraining him from doing so was discharged.

10. The Parliamentary Privileges Act contained no provision for privilege to be waived at least by an individual member, even a Chief Minister, and, in any event, such a waiver could not be implied by the provision of copies of the reports to the plaintiffs on a confidential basis. Indeed, the provision of copies to senior officers in relation whom adverse findings and recommendations had been made should be seen as further acts for the purpose of the business of the Assembly.

11. If privilege attached to the report the provisions contained in subs 16(3) made it unlawful for it to be tendered or received in evidence for purposes which included questioning anything contained therein and drawing inferences or conclusions from any part of it. Consequently, for all practical purposes, reliance on the report would be effectively precluded and the plaintiffs would be prevented from maintaining the present proceedings unless they could find some way to restructure them in a manner that would make reliance upon the terms of the report unnecessary.

12. In answer to these contentions, Mr Rayment QC submitted that, whilst the Legislative Assembly undoubtedly enjoyed the same privilege as that conferred upon the House of Representatives by the Parliamentary Privileges Act, that privilege had no application to the copy of the report that he had tendered. He maintained that the copy provided to his clients had never been tabled in the Assembly and that there was no evidence to suggest that at the time it had been made available to his clients the Chief Minister had intended to table the original. He also made the point that the Inquiries Act provided for appointments such as that of the first respondent to be made by the Executive and for the report to be submitted to the Chief Minister who would presumably receive it as a Member of the Executive. There could be no question of one copy of a report falling within the concept of "proceedings in Parliament" merely because another copy was in the possession of the Chief Minister and he might wish to table it.

13. Mr Rayment's submissions were supported by Mr Howe who presented a lengthy and substantial argument on his client's behalf. Mr Howe pointed out, in my view correctly, that, whilst pars (a) and (b) of subs 16(2) made it clear that the concept of "proceedings in Parliament" extended to evidence given and documents submitted to the Assembly, neither of these provisions captured any anterior events such as the antecedent provision of a proof of any such evidence or a copy of the documents to be submitted. He also submitted that, whilst par (c) made it clear that the concept extended to the preparation of documents "for purposes of or incidental to the transacting of any such business", a report which had been neither commissioned nor prepared for such a purpose did not meet this description even if it was subsequently tabled. He argued that there was no other basis upon which either the original of the report or copies provided to the plaintiffs could be regarded as falling with the concept defined by subs 16(2). The provisions of subs 16(3) applied only to evidence, questions, statements, submissions or comments "concerning proceedings in Parliament". Hence, they had no application to the copy of the report tendered by Mr Rayment.

14. Mr Howe also pointed to the prevalence of inquiries conducted pursuant to statutory provisions similar to that contained in s 5 of the Inquiries Act and suggested that it was significant that the authorities failed to reveal any principle that the reports of such inquiries became inadmissible upon receipt by the relevant minister or even upon being tabled in the parliament of the state or territory in question.

15. He emphasised the important role played by judicial review and cited passages from the judgment of the High Court in Egan v Willis & Anor [1998] HCA 71; (1998) 195 CLR 424 at 451 and 476. He submitted that there were passages in the High Court's judgment in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 which suggested that parliamentary privilege had offered no answer to the application for declaratory relief in relation to a report which the relevant legislation required be tabled in parliament. It was true that there was no Queensland provision equivalent to s 16 of the Parliamentary Privileges Act but the provisions of article 9 of the Bill of Rights 1688 no doubt applied and, he maintained, s 16 was merely declaratory of the meaning of those provisions. He also submitted that if the High Court had recognised that parliamentary privilege had such a broad scope the decision in Commonwealth of Australia v Northern Land Council & Anor [1993] HCA 24; (1993) 176 CLR 604 rejecting access to cabinet note books would have been based on that privilege rather than on considerations of public interest immunity.

16. Ultimately, he submitted, a document could not be said to concern proceedings in Parliament unless it had been produced for that purpose. If, contrary to his forceful submissions, the terms of the section appeared to be wide enough to embrace a privilege of the breadth suggested by Mr Erskine then a literal construction should be hastily jettisoned in favour of the so called "mischief" rule referred to by Jordan CJ in Hall v Jones (1942) 42 SR (NSW) 203.

17. Mr Walker, who appeared for the Attorney-General, supported Mr Howe's submissions. He also stressed the fact that there was no evidence that, at the time he made copies available to the plaintiffs, the Chief Minister had formed any intention to table the report. He informed me that since notice of the Speaker's submissions had been received only late on the afternoon of 9 April 2002, time had not permitted the preparation of any supplementary affidavits, but that he had been instructed that the Chief Minister, who was also the Attorney-General, had not formed such an intention by that time and would call evidence to that effect if necessary.

18. Mr Clynes, who appeared for the first defendant, reminded me that his client had, in essence, filed a consenting appearance and said that he did not wish to be heard on any aspect of the applications.

19. This brief outline of the competing arguments has not done justice to the extensive submissions which counsel presented on short notice over the course of a full and, in fact, somewhat extended hearing day. However, whilst time does not permit a more detailed excursus of those submissions, I am nonetheless grateful for the assistance so provided and have given due consideration to all of the matters raised in argument and to the numerous authorities cited.

20. In addition, my own researches overnight revealed a briefing paper which may provide some limited support for some aspects of Mr Erskine's argument. In the paper entitled "Copyright, Privilege and Members of Parliament", Briefing Paper 13/2000 <<http://www.parliament.nsw.gov.au>>, the author, Gareth Griffin, refers to the observations of MacPherson J in O'Chee v Rowley and adds:

This indicates that any document that comes into the possession of a Federal MP at this preparatory stage, which the Member then chooses to keep for the purpose of transacting parliamentary business, would be protected by the doctrine of parliamentary privilege. Moreover, anything copied or reproduced for this purpose would be protected in the same way and therefore shielded from the operation of the copyright law.

21. Nonetheless, I am not satisfied that privilege has been established. The decisive question is, of course, whether the copy of the report tendered by Mr Rayment falls within the description "proceedings in Parliament" as defined in subs 16(2) and that concept plainly extends to acts done for purposes of transacting the business of the Parliament including the preparation of documents for such purposes. However, the evidence does not establish that the report of the first defendant was prepared for any such purpose. On the contrary, it seems clear that the report was prepared in fulfilment of a statutory duty which the first defendant acquired upon accepting the appointment by the Executive pursuant to s 5 of the Act.

22. Privilege may be attracted by the retention of document for a relevant purpose, but that is because the retention for such a purpose is itself an act forming part of the proceedings. The privilege thereby created does not attach to the document and any copies for all purposes. It applies only to the words used and acts done in the course of, or for purposes of or incidental to, the transaction of business of the Assembly including the retention of a document for a purpose of that kind. Hence, if a Member obtains a document that has been prepared for some reason unrelated to the business of the Assembly but elects to retain it for such a purpose, subs 16(3) would prevent the admission of any evidence of that retention or any subsequent use for such a purpose. As Mr Griffin has suggested, it would also apply to any copies brought into existence for such a purpose. That is because the creation and use of the copies for such purposes would also be acts forming part of the proceedings of the Parliament. However, privilege would not attach to copies of the document which were not prepared or used for such a purpose. It is for this reason that the tabling or retention of copy of a newspaper can not prevent the continued circulation of the paper or the receipt in evidence of another copy. Similarly, whilst, as O'Chee v Rawley demonstrates, a document containing allegedly defamatory statements retained by a Member for a relevant purpose can not be obtained on discovery and used to prove such possession, the Member's possession for that purpose would not give rise to a wholesale application of privilege to other copies. If copies had also been supplied to newspapers for publication, the fact that the Member had decided to keep the copy in his or her possession for a relevant purpose would not prevent the copies supplied to the newspapers from being tendered in defamation proceedings against others.

23. Furthermore, privilege may not prevent even documents that have been tabled from being admitted into evidence if they were not prepared for purposes of or incidental to business of the Parliament and their subsequent production would not reveal words used or acts done that might fairly be regarded as falling within the concept of "proceedings in Parliament". For example, a Member of Parliament sued for defamation in respect of the publication of a letter for purposes unrelated to Parliamentary business could not effectively prevent the maintenance of the proceedings against him by the simple expedient of tabling the only copy of the offending letter. Nor do I accept that a court would be precluded from relying upon figures published in the annual report of a statutory authority which had been tabled, though it would be precluded from receiving any evidence as to the use to which it had been put in Parliament. However, for present purposes it is unnecessary to determine the precise extent of the privilege.

24. Whilst it is possible that the copy of the report tendered by Mr Rayment was produced for purposes of or incidental to the transaction of business of the Assembly, there is simply no evidence to that effect. In my opinion, privilege has not been established.

25. For these reasons the copy of the report will be admitted into evidence in both matters.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 10 April 2002

Counsel for the plaintiffs: Mr B W Rayment QC and Mr D Mossop

Solicitor for the plaintiffs: Abbott Tout

Counsel for the first defendant: Mr R Clynes

Solicitor for the first defendant: Minter Ellison

Counsel for the intervenor Mr P Walker

(Attorney-General):

Solicitor for the intervenor ACT Government Solicitor

(Attorney-General):

Counsel for the Speaker Mr P Erskine

of the Legislative Assembly:

Solicitor for the Speaker Clayton Utz

of the Legislative Assembly:

Date of hearing: 9 April 2002

Date of judgment: 10 April 2002