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Federal Court of Australia |
Last Updated: 22 February 2000
Crane v Gething [2000] FCA 45
CONSTITUTIONAL LAW - parliamentary privilege - seizure of Parliamentary and Electorate office documents - power of court to determine extent and existence of parliamentary privilege.
ADMINISTRATIVE LAW - judicial review - issue and execution of search warrants - warrants relating to alleged imposition in connection with reimbursement and payment for use of charter air services by Senator - claim for declaration that applicant entitled to benefits - declaratory judgment - criminal conduct.
CRIMINAL LAW -search warrants - judicial review - declaratory judgments - relating to criminal conduct - reluctance of courts to grant such relief.
Crimes Act 1914 (Cth) s 3E, s 79B
Parliamentary Privileges Act 1987 s 5, s 16
York Corporation v Pilkington (1794) 2 Atk 302 cited
Thames Launches Ltd v Trinity House Corporation (Deptford Strond) [1961] 1 Ch 197 cited
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 followed
Imperial Tobacco Ltd v Attorney-General [1981] AC 718 followed
Commissioner for Corporate Affairs v Sansom [1981] WAR 32 discussed
Commonwealth v Sterling Nicholas Duty Free Pty Limited [1972] HCA 19; (1972) 126 CLR 297 discussed
Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1980] UKHL 10; [1981] AC 800 discussed
Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789 discussed
Inglis v Moore (1979) 24 ALR 411 cited
Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435 cited
Attorney-General v Able [1984] QB 795 cited
Attorney-General (NSW) v Australian Fixed Trusts Ltd [1974] 1 NSWLR 110 cited
Corporate Affairs Commission v MG Securities (Australasia) Limited (1975) 1 ACLR 157 cited
Biggs v DPP (1997) 17 WAR 534 discussed
Kunakool v Boys (1987) 14 FCR 489 cited
Flanagan v Commissioner of Australian Federal Police (1995) 60 FCR 149 cited
R v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157
R v Murphy (1986) 5 NSWLR 18
O'Chee v Rowley (1997) 150 ALR 199
Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 followed
Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572
Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604
Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 at 446
Halden v Marks (1995) 17 WLR 447
De Smith Woolf and Jowell, Judicial Review of Administrative Action (5th Edition, Sweet & Maxwell, 1995)
Aronson and Dyer, Judicial Review of Administrative Action (LBC 1996)
Young, Declaratory Orders (2nd Edition, Butterworths (1984)
Zamir & Woolf, The Declaratory Judgment (Sweet & Maxwell, 1993)
Lock, Parliamentary Privilege and the Courts: The Avoidance of Conflict, Public Law, Spring 1985
Harders, Parliamentary Privilege - Parliament versus the Court: Cross-examination of Committee Witnesses (1993) 67 ALJ 109
ARTHUR WINSTON CRANE v RONALD JOHN GETHING, PHILIP RAYMOND THOMPSON and THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE
W5 of 1999
FRENCH J
18 FEBRUARY 2000
PERTH
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The Applicant is to pay the Third Respondent's costs of the application.
3. The documents for which parliamentary privilege is claimed and which are presently in the custody of the Court are to be delivered to the Clerk of the Senate to be dealt with in accordance with the directions of the President of the Senate.
4. There be liberty to apply within fourteen days to vary orders 2 and 3.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
WESTERN AUSTRALIA DISTRICT REGISTRY |
BETWEEN: |
ARTHUR WINSTON CRANE Applicant |
AND: |
RONALD JOHN GETHING First Respondent PHILIP RAYMOND THOMPSON Second Respondent THE COMMISSIONER OF AUSTRALIAN FEDERAL POLICE Third Respondent |
JUDGE: |
FRENCH |
DATE: |
18 FEBRUARY 2000 |
PLACE: |
PERTH |
Introduction
1 Arthur Winston Crane is a member of the Senate of the Parliament of the Commonwealth. In December 1998, his Parliamentary and Electorate offices and his home were searched pursuant to search warrants issued under the Crimes Act 1914 (Cth). The warrants were issued in aid of an investigation into payments made in respect of charter flights taken by Senator Crane between 1995 and 1998. Senator Crane brought to the Court what was initially a challenge to the validity of the warrants and a claim for parliamentary privilege in respect of documents seized. The challenge to the validity of the warrants was abandoned. However he now seeks a declaration as to his entitlement to the payments made in respect of charter services used. He also maintains his claim for parliamentary privilege in respect of certain of the documents seized from his Parliamentary and Electorate offices. The claim is not maintained in respect of the bulk of the documents seized which were released to the Australian Federal Police at the time of the hearing to enable them to continue their investigation.
2 The case raises important issues concerning the proper role of the Court in dealing with allegations of criminal conduct in the context of civil proceedings and the proper role of the Court in determining questions of parliamentary privilege which arise between the Executive and the Parliament and not in the course of judicial proceedings.
3 On 18 December 1998, at Perth, Ronald John Gething, a Stipendiary Magistrate issued two search warrants pursuant to s 3E of the Crimes Act 1914. The warrants related to the home and the electorate office of Arthur Winston Crane, a member of the Senate of the Commonwealth Parliament. Senator Crane's home address referred to in the relevant warrant is Oldfield Location 800 (located at the intersection of Fence Road and Jerdacuttup North Road, Jerdacuttup). The electorate office is 890 Albany Highway, East Victoria Park. Each warrant authorised the officer to whom it was issued to enter and search the premises described, to search for and record finger prints found at the premises, take samples of things found at the premises for forensic purposes and to search the premises for any evidential material that satisfied all of three conditions specified in the warrant and to seize any such evidential material that might be found. The warrant also authorised the executing officer to:
"- seize any other thing found at the premises in the course of the search that the executing officer or the constable assisting believes on reasonable grounds to be:- evidential material in relation to an offence to which this warrant relates; or
- anything that is relevant to another offence that is an indictable offence against a law of the Commonwealth in that it is evidential material in relation to that offence;
if the executing officer or the constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence;"
The three conditions referred to were in the following terms:
"FIRST CONDITIONthings which are:
. originals or copies of any one or more of the following including any of them which are stored on magnetic or electronic storage medium:
. Record books
. Invoices,
. Receipts,
. Cash Books,
. Ledgers,
. Journals,
. Sales receipts,
. Balance sheets,
. Spreadsheets,
. Accounts,
. Note books,
. Notations of flight details,
. Correspondence, notes and letters (not being letters of a private or confidential nature either related to Senator Crane, his staff or his constituents),
. Employment records,
. Travel claims,
. Electorate expense claims,
. Diaries,
. Appointment books,
. Parliamentary Guidelines,
. Remuneration Tribunal Decisions and Reports,
. the acquittal of air charter entitlements,
. Claims for air charter entitlements,
. Travel itineraries,
. Banking records,
. Passenger ticketing and passenger movements records, and
. Handwritten records detailing flights purporting to have been undertaken by Senator Winston Crane.
SECOND CONDITION
things which relate to any one or more of the following:
. Arthur Winston Crane, also known as Winston Crane, Liberal Senator for Western Australia,
. The electorate office of Senator Arthur Winston Crane
. 890 Albany Highway, East Victoria Park, Western Australia
. The Department of Finance and Administration, formerly known as Department of Administrative Services
. AD-Astral Aviation
. R.P.M. Management Pty Ltd
. Aircraft registration number VH-AHY
. Aircraft registration number VH-MNI
. Aircraft registration number VH-AHK
. Aircraft registration number VH-BLW
. Aircraft serial number TH-936
. Aircraft serial number ME-187
. Aircraft serial number TH-911
. Aircraft serial number TH-940
. Lisa
. Lyn
. Pasdonnay Pty Ltd
. Oldfield location 800, (located at the intersection of Fence Road and Jerdacuttup North Road), Jerdacuttup, Western Australia
. Unit 1, Number 97 Ashburton Street, East Victoria Park, Western Australia
THIRD CONDITION
Things as to which there are reasonable grounds for suspecting that they will afford evidence as to the commission of the following offence(s) against the laws of the Commonwealth:
1. That between 28 December 1994 and 14 July 1996 Arthur Winston Crane imposed upon the Commonwealth contrary to Section 29B of the Crimes Act 1914 by an untrue representation in that he forwarded to the (then) Department of Administrative Services (DAS), invoices showing air charter flights between Perth and places in rural Western Australia with the view to obtaining a benefit, namely payment for charter flights between Perth-Ravensthorpe, Western Australia-Perth.
And as an example that:
A. On the 26 April 1995 Arthur Winston Crane imposed upon the Commonwealth by an untrue representation, in that he forwarded to DAS an invoice for air charter travel between Perth-Kalgoorlie Western Australia-Perth to the value of $1118. In doing so Mr Crane received the benefit of an air charter flight between Perth-Ravensthorpe-Perth.
B. On the 4 June 1995 Arthur Winston Crane imposed upon the Commonwealth by an untrue representation, in that he forwarded to DAS an invoice for air charter travel between Perth-Mullewa, Western Australia-Perth to the value of $1248. In doing so Mr Crane received the benefit of an air charter flight between Perth-Ravensthorpe-Perth.
C. On the 14 July 1996 Arthur Winston Crane imposed upon the Commonwealth by an untrue representation, in that he forwarded to DAS an invoice for air charter travel between Perth-Albany, Western Australia-Perth to the value of $1521. In doing so Mr Crane received the benefit of an air charter flight between Perth-Ravensthorpe-Perth.
2. That between 28 December 1994 and 14 July 1996, person or persons unknown from R.P.M. Management Pty Ltd trading as AD-Astral Aviation were knowingly concerned in the commission of an offence by Arthur Winston Crane, to wit imposing upon the Commonwealth contrary to Section 29B of the Crimes Act 1914.
3. That between the 14 July 1996 and the 3 October 1998 Arthur Winston Crane imposed upon the Commonwealth contrary to Section 29B of the Crimes Act 1914 by an untrue representation in that he forwarded to DAS and DoFA invoices showing air charter flights between Perth and places in rural Western Australia with the view to obtaining a benefit namely payment for charter flights between Perth-Ravensthorpe, Western Australia-Perth.
4. That between the 14 July 1996 and the 3 October 1998, person or persons unknown from R.P.M. Management Pty Ltd trading as AD-Astral Aviation were knowingly concerned in the commission of an offence by Arthur Winston Crane, to wit imposing upon the Commonwealth contrary to Section 29B of the Crimes Act 1914."
A third warrant issued on 17 December 1998 in Canberra was directed to premises described as:
"The Parliamentary Office of Senator Arthur Winston Crane located at the Senate Wing, Ground Floor, Suite 117, Parliament House, Canberra, Australian Capital Territory."
The issuing officer was Phillip Raymond Thompson, a Stipendiary Magistrate. The terms of the warrant were virtually identical to those of the two warrants issued in Western Australia.
4 The warrants were executed at or about the dates of their issue. A quantity of documents was seized from each of the premises. Senator Crane made contact with the Clerk of the Senate who wrote to him on 21 December 1998 confirming oral advice which he had given telephonically in relation to the question of parliamentary privilege. In his letter the Clerk of the Senate indicated that he had been advised by the Australian Federal Police that material taken from "your office" - evidently a reference to both the Parliamentary office and the Electorate office - had been placed in sealed containers and delivered to the Registrar of the Supreme Court in Canberra and the issuing magistrate in Perth. The Clerk of the Senate advised Senator Crane that he had three options for determining whether any of the material was the subject of parliamentary privilege:
1. To allow the police to have access to the material, wait to see whether any of it is proposed to be used in any legal proceedings and then contest the use of it in those legal proceedings in the court in which they are to take place.
2. Bring an action in a court to seek a judgment that all or some of the material is protected by parliamentary privilege and therefore immune from seizure.
3. Agree with the Australian Federal Police to the procedure whereby a neutral third party examine the material and determine whether any of it is the subject of parliamentary privilege.
A description of material apparently seized from the Parliamentary office was attached to the letter. It was as follows:
1. Document entitled "Extract from the Remuneration Tribunal 1989 Review".
2. Document described as "Page 2 of a telephone message Tuesday, 11 November".
3. Two x Verbatim brand backup tapes, one titled "Julie Canberra 22/5/98", and one titled "CBR".
4. Three Sony Magnets Optical Disks (AFP) containing images of hard disk drive of computers in Senator Crane's suite, Parliament House.
5 On 22 December Senator Crane's solicitors wrote to the Australian Federal Police and in particular to Officer Girling, who was named as the relevant officer in one of the warrants issued by Mr Gething. The letter referred to a claim of parliamentary privilege having been "recognised in respect of documents located at our client's parliamentary office and the same are now in the custody of the President of the Senate". The letter raised the question of the grounds upon which the warrant had issued and sought particulars of those grounds so far as they related to alleged offences. The Office of the Commonwealth Director of Public Prosecutions responded to that letter observing that when the warrant was executed Senator Crane had claimed parliamentary privilege over all seized documents. The executing officers had followed a protocol in accordance with guidelines agreed between the Australian Federal Police and the Law Council of Australia as to execution of warrants on lawyers' premises where a claim of legal professional privilege is made. Senator Crane was invited to enforce his claim for parliamentary privilege in the appropriate forum. His lawyers were advised that should such action be not taken by Monday, 18 January the seized documents would be recovered by the Australian Federal Police and treated as if a claim for parliamentary privilege had not been made. The request for particulars of the charges was denied.
6 On 28 January 1999 an application was filed in the Western Australia District Registry of this Court whereby Senator Crane, naming as respondents, the Magistrate at the Court of Petty Sessions held at Perth, the Director of Public Prosecutions of the Commonwealth of Australia and the Commissioner of Australian Federal Police, sought judicial review under the Administrative Decisions (Judicial Review) Act 1975 (Cth). The decision for which he sought review was that of the Magistrate at Perth "...to grant search warrants...to Scott Horace Girling and Others of the Australian Federal Police to conduct a search of the residence of the applicant at Ravensthorpe and of the premises at 890 Albany Highway, East Victoria Park, Western Australia being the electorate office of the applicant who is a Senator for the State of Western Australia."
7 The application set out various grounds for review which were in the following terms:
"1. The Warrants are imprecise as to time (date of creation of documents), scope, and description of the things searched for;2. The things to be searched for are ambiguous;
3. The alleged offences which have grounded the Warrants are imprecise and the Second Respondent has refused to supply particulars thereof;
4. The Warrants amount to a general warrant."
Relief claimed in the application was by way of order that the warrants be set aside.
8 The proceedings came on for directions before Nicholson J on 4 February 1999 and leave was given to Senator Crane to issue further proceedings or to amend the existing proceedings to enjoin a challenge to the warrant issued in Canberra. He was also required to file an affidavit within fourteen days deposing to facts and circumstances providing the grounds and identifying which, if any, documents were subject to a claim for parliamentary privilege.
9 At a further directions hearing on 9 March 1999 orders were made removing the Director of Public Prosecutions as second respondent and joining the Magistrate's Court of the Australian Capital Territory at Canberra as second respondent. Senator Crane was given leave to amend the proceedings in terms of a minute of proposed substituted application. It was also directed that a copy of all process filed to date be served by the District Registrar on the Clerk of the Senate so the Senate could determine whether it wished to appear or make submissions by counsel on any matter concerning the claim for alleged privilege or the procedure which the Court should follow in determining a disputed claim of privilege. On 18 May 1999 the application was further amended by a new amended substituted application and statement of claim. Directions were made for the filing of affidavits and the directions hearing was otherwise adjourned to a date to be fixed.
10 On 26 July 1999 further directions were made changing the designation of the first and second respondents to Ronald John Gething and Philip Raymond Thompson respectively. The Clerk of the Perth Court of Petty Sessions was to produce to the District Registrar of the Federal Court all documents held by him at the request of the applicant and the third respondent which had been seized by the third respondent pursuant to search warrants executed on Senator Crane's premises. The Registrar of the Supreme Court of the Australian Capital Territory was requested to produce to the District Registrar of the Federal Court in Perth all documents held by the Supreme Court Registrar at the request of Senator Crane and the third respondent.
The Amended Application and Statement of Claim
11 The amended application as it stood at the hearing of these proceedings sought declarations that each of the warrants was invalid on somewhat expanded grounds going to the ambiguity, want of precision and particularity in various respects and the "impossibility" for those reasons of making a claim for parliamentary privilege on any item which the police might seek to seize. In addition to the declarations as to invalidity of the warrants, the application also sought:
"2. An order that the Warrants in each instance be set aside;
3. An order that documents seized pursuant to the Warrants be returned to the place from which they were seized;
4. A declaration that the Applicant was entitled to be paid an allowance by the Commonwealth for each of the Charter Flights;
5. Such further or other orders as the Court shall think fit;
6. Costs."
12 By the amended substituted statement of claim Senator Crane raises questions relevant only to the claim for a declaration that he was entitled to be paid an allowance by the Commonwealth for each of the charter flights referred to in the warrants. It is pleaded that he was at all material times entitled, pursuant to s 4 of the Parliamentary Allowances Act 1952 (as amended), to the Salary and Allowances to be paid to him from the Public Moneys of the Commonwealth:
"(i) prescribed in section 48 of the Constitution, and;(ii) determined from time to time by the Remuneration Tribunal pursuant to subsections 7(1) and (4) of Remuneration Tribunal Act 1973 (as amended)."
The statement of claim then goes on to refer to determinations of the Remuneration Tribunal relating to reimbursement of members of the Commonwealth parliament for the use of charter transport, including the charter of aircraft. It is said that pursuant to these determinations for each of specified charter flights listed in a schedule to the statement of claim Senator Crane claimed and was provided an allowance by the Commonwealth. Each of the flights, it is said, was reasonable in the circumstances and within and for the service of the electorate. So Senator Crane says he was entitled to be paid an allowance by the Commonwealth for each of the charter flights under the Remuneration Tribunal determinations and on that basis seeks the relevant declaration.
13 By way of defence, the Commissioner of the Australian Federal Police does not admit the entitlement to be paid, says that he and his officers are presently engaged in an investigation into the very question of whether or not the applicant was entitled to be paid the allowances as alleged and if not, whether he may have committed an offence against the law of the Commonwealth. The Commissioner asserts that the search warrants, the subject of these proceedings, have been issued and are to be executed in pursuance of that investigation. He says it will not be possible for him to reach a decision about whether or not there was an entitlement to payment for any or all of the charter flights until the investigation has been completed, including the execution of the warrants and the consideration of material evidence, if any, obtained as a result of that execution. He does not admit that each of the charter flights was reasonable or within and for the service of the electorate and says he will not be in a position to address that contention without first completing the investigation. As to the general claim of entitlement made in the statement of claim, the Commissioner says it is premature to adjudicate upon or attempt to determine it in these or other proceedings until the investigation presently being conducted has been completed and contends, as a matter of law, that this Court should decline to grant declaratory relief on the question presently under investigation which could possibly lead to the laying of criminal charges in due course.
The Trial of the Action
14 Upon the hearing of the application, the attack upon the validity of the warrants was abandoned. There were two issues remaining before the Court. The first was raised by Senator Crane's contention that he was entitled to the payments the subject of the investigation in aid of which the warrants were issued. The second, albeit not formally raised on the amended application or the statement of claim, was whether and to what extent parliamentary privilege attached to certain documents seized from his Parliamentary and Electorate offices. The claim for privilege was not maintained in relation to the great bulk of documents seized and orders were made by consent releasing those documents to the third respondent so that the investigation could continue.
Statutory Framework Relating to Search Warrants and Imposition
15 Search warrants, in respect of suspected offences against laws of the Commonwealth, can be issued under s 3E of the Crimes Act 1914. The power to issue is conferred by subs 3E(1):
"An issuing officer may issue a warrant to search premises if the officer is satisfied by information on oath that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises."
Subsections 3E(5) and 3E(6) prescribe respectively what must be set out in all search warrants and what must be set out in warrants relating to premises. The things authorised by a search warrant, including entry on to premise and the search for and seizure of evidential material, are set out in s 3F. Various ancillary powers, not relevant for present purposes, are set out in ss 3G to 3L respectively. The occupier of the premises being searched, if present, must be given a copy of the warrant (s 3H). "Evidential material" is defined in s 3C(1) as:
""evidential Material" means a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form;"
That section also defines "offence" as follows:
""offence" means:
(a) an offence against a law of the Commonwealth (other than the Defence Force Discipline Act 1982); or
(b) an offence against a law of a Territory other than the Australian Capital Territory."
The term "issuing officer" in relation to a warrant to search premises means:
"(a) a magistrate; or
(b) a justice of the peace or other person employed in a court of State or Territory who is authorised to issue search warrants or warrants for arrest, as the case may be."
16 Section 29B of the Crimes Act which is referred to in the warrants is in the following terms:
"29B. Any person who imposes or endeavours to impose upon the Commonwealth or any public authority under the Commonwealth by any untrue representation, made in any manner whatsoever, with a view to obtaining money or any other benefit or advantage, shall be guilty of an offence."
17 The question of parliamentary privilege is regulated by the Parliamentary Privileges Act 1987 (Cth) which is referred to in more detail later in these reasons.
Claim of Entitlement
18 In support of a contention that he was entitled to the payments and benefits which are the subject of investigation, Senator Crane filed an affidavit in which he described the system of determining and administering allowances for charter aircraft hire for Senators and Members of the House of Representatives. The scheme of allowances is established by the Parliamentary Allowances Act 1952. Annual entitlements are determined by the Remuneration Tribunal. Senator Crane relied upon a determination of the Tribunal, No 17 of 1989, made pursuant to s 7(4)(a) and (b) of the Remuneration Tribunal Act 1973. The relevant parts of the determination were as follows:
"TRAVEL ENTITLEMENTS - SCHEDULED COMMERCIAL TRANSPORTSenators and Members
1.1 A senator or member when travelling within Australia on parliamentary or electorate business (but excluding party business) shall be entitled to travel at government expense on scheduled commercial/commuter air services, main line rail services or by motor coach and other vehicles operating as regular carriers.
.
.
.
CHARTER AIRCRAFT/DRIVE YOURSELF VEHICLES
5.1 "Charter transport" includes charter aircraft and such other modes of transport as may be reasonable in the circumstances within and for the service of the electorate. This entitlement does not extend to the use of taxis or hire cars in the metropolitan areas of capital cities or to the use by any person other than the senator or member except when another senator or member or the spouse or member of the staff of the senator or member is accompanying the senator or member.
5.2 A senator or member to whom one of the following criteria applies shall be entitled, at government expense, to use charter transport within and for the service of his or her State, Territory or electorate to the limit specified:-
(a) Senator Maximum Reimbursement per annum
.
.
.
(ii) representing Queensland
or Western Australia $12,363
.
.
.
5.3 A senator or member entitled by this determination to use charter transport within and for the service of their electorate, State or Territory shall be entitled to engage or dismiss the charter transport at a place outside his or her electorate, State or Territory adjacent to the point of departure or destination.
5.4 The Minister for Administrative Services shall have a discretion to approve the use of charter aircraft within Australia at government expense in special cases, other than for the service of the electorate, including such use by the Leader of a recognised party of at least 5 members and circumstances where a senator or member would be unduly delayed by the use of scheduled services."
19 Senator Crane resides at Jerdacuttup which is about 60 kilometres south east of Ravensthorpe by road and 150 kilometres west of Esperance. Since his election in 1990 he has experienced difficulties in travel arrangements between his home and Perth and Canberra which are related to the distance from his home to Esperance airport and the scheduling of flights out of that airport. Following discussions which he had in 1993 with the then Minister for Finance and Administrative Services, Senator Crane formed the view that he was entitled to make use of his charter aircraft allowance for the purpose of travel between Perth and his home at Jerdacuttup where there was no reasonable alternative commercial flight. This was for travel to Perth for the purpose of carrying out his duties as a senator which included parliamentary and electoral work. According to his affidavit evidence, charter invoices raised in respect of such flights were paid by the Department of Administrative Services on presentation. According to Senator Crane, his entitlement was confirmed by the new Minister for Administrative Services in 1996.
20 In his affidavit Senator Crane set out a list of the charter flights he took between 25 December 1994 and 8 December 1995, each of which ran between Ravensthorpe and Perth and was said to be for the purpose of attending electorate office business and, in some cases, to connect with travel between Perth and Canberra.
21 What all this amounted to was the contention that all of the charter travel taken at the expense of the Commonwealth between December 1994 and December 1995 was within Senator Crane's entitlement. The question is, assuming that the entitlement could be made out, is Senator Crane able to seek a declaration to that effect and thus in a practical although not legal sense, pre-empt the ongoing police investigation.
A Declaration of Innocence
22 Senator Crane's desire to obtain a declaration from this Court of his entitlement to receive the charter allowances under investigation is understandable. It is a fact of public life today that the making of an accusation or the initiation of an investigation is enough in the minds of some to seal the fate and reputation of the person under investigation. The general question which must be answered in the circumstances of this particular case is whether this Court can and should accede to an application for declaratory relief on an issue of fact where there are no pending proceedings but an investigative process into those issues has been initiated.
23 Courts from time to time grant declaratory relief and other remedies by way of judicial review in relation to matters which are or could be the subject of criminal proceedings. Applications for such relief usually face a substantial threshold the extent of which depends upon whether they concern matters involving past or future conduct and according to whether there are proceedings arising out of the conduct in question, pending in a criminal court:
"... the civil courts are reluctant to grant declaratory relief when this involves determining whether particular conduct amounts to a crime because the grant of a declaration could result in conflict between the civil and criminal courts, with the civil courts usurping the proper role of the criminal courts." - De Smith Woolf and Jowell - Judicial Review of Administrative Action (5th Edition, Sweet & Maxwell, 1995)
Nevertheless, as Aronson and Dyer say in Judicial Review of Administrative Action (LBC 1996) at 886:
"However, the generalised judicial expressions of reluctance to use the declaration in the area of criminal law ought to be read and applied in context. One should always ask questions such as: Who is bringing these proceedings; the accuser, the accused or a stranger? Are the criminal courts presently seised of the matter? Are they better equipped to deal with it? Would it be efficient to hear this case?"
See also Young, Declaratory Orders (2nd Edition, Butterworths (1984) pars 1701-1709 et ff) and Zamir & Woolf, The Declaratory Judgment (Sweet & Maxwell, 1993) pars 4162-4181.
24 The categories of case in which declarations may be sought in a civil court concerning conduct which could attract the sanctions of the criminal law include the following:
1. A declaration is sought in relation to past conduct and proceedings are instituted in a criminal court while the civil application is pending.
2. A declaration is sought in relation to past conduct while prior proceedings are pending in connection with that conduct in a court exercising criminal jurisdiction.
3. A declaration is sought in relation to past conduct and there is no conflict with either prior or subsequently instituted criminal proceedings.
4. A declaration is sought to determine whether a proposed course of conduct will contravene the criminal law.
Each of these categories can be subdivided into categories where the question upon which the declaration is sought is a question of law or fact or mixed law and fact.
25 Where matters arising in civil proceedings were the subject of subsequently instituted criminal proceedings, Chancery could restrain the prosecution pending the outcome of the civil litigation - York Corporation v Pilkington (1794) 2 Atk 302 and like cases referred to in Thames Launches Ltd v Trinity House Corporation (Deptford Strond) [1961] 1 Ch 197. In the latter case there were originating summonses pending in the Chancery Division of the High Court which involved the construction of the Pilotage Act 1913. The defendants were restrained from proceeding against the plaintiff on prosecutions subsequently commenced in the Magistrates Court alleging the commission of offences under the Act and raising substantially the same questions of law as were raised by the originating summonses. Nevertheless, Buckley J accepted that jurisdiction to grant declaratory relief in such a case was to be exercised with the greatest care. The Court would be slow to interfere with the course of criminal proceedings unless it was clear that the civil proceedings and the criminal proceedings were really about the same issue and that if the civil proceedings succeeded the criminal proceedings must necessarily fail (at 204).
26 Declaratory relief impinging on criminal proceedings already commenced will only be granted in exceptional circumstances. As Gibbs ACJ said in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 26:
"...a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order."
There were exceptional reasons to warrant the granting of a declaratory order in that case which turned on a question of law crucial to the private prosecution then pending by way of committal proceeding in the Magistrates Court of the Australian Capital Territory. But the caution against the grant of declaratory relief where criminal proceedings have been properly instituted was reinforced by the House of Lords in Imperial Tobacco Ltd v Attorney General [1981] AC 718. Viscount Dilhorne put it succinctly at 741:
"I think that the administration of justice would become chaotic if, after the start of a prosecution, declarations of innocence could be obtained from a civil court."
See also at 746 (Lord Fraser and Lord Scarman) and at 752 (Lord Lane).
27 There is a distinction to be drawn between the case in which declaratory relief is sought in relation to past conduct, whether or not the subject of pending criminal proceedings and that in which declaratory relief is sought in relation to proposed or apprehended conduct - Commissioner for Corporate Affairs v Sansom [1981] WAR 32 at 36 (Burt CJ). Reservations have been expressed even in the latter category of case. But it has been accepted that the capacity of courts to declare that conduct which has not yet taken place will not be in breach of a contract or a law "contributes enormously to the utility of the jurisdiction" - Commonwealth v Sterling Nicholas Duty Free Pty Limited [1972] HCA 19; (1972) 126 CLR 297 at 305 (Barwick CJ). This is notwithstanding, as Menzies J observed (McTiernan J agreeing) that the court, in exercising its discretion, would "take into account in an appropriate case, the principle that, in general, matters of criminal law should be dealt with at trial for alleged offences" (at 311). Viscount Dilhorne in Imperial Tobacco could "well see the advantages of persons being able to obtain rulings on whether or not certain conduct on which they proposed to embark will be criminal" although he observed that "it may be a defect in our present system that it does not provide for that" (at 741). But the system does so provide to some extent. In Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1980] UKHL 10; [1981] AC 800, a declaration was granted that departmental advice relating to termination of pregnancy by medical induction did not involve the commission by hospital staff implementing it of any offence against the Abortion Act 1967. There was, no discussion in the House of Lords, of the desirability of the relief sought. It was accepted sub silentio. There was such discussion in Airedale NHS Trust v Bland [1992] UKHL 5; [1993] AC 789 in which a declaration was sought that the Trust and attending responsible physicians could lawfully discontinue life sustaining treatment and medical support for a young patient in a permanent vegetative state resulting from injuries sustained in a sporting accident three and a half years previously. Lord Goff recognised "that strong warnings have been given against the civil courts usurping the function of the criminal courts" and referred to statements in the Imperial Tobacco case that a declaration as to the lawfulness or otherwise of future conduct would be "no bar to a criminal prosecution, no matter the authority of the court which grants it". The jurisdiction existed to grant such a declaration and it would be a deplorable state of affairs if no authoritative guidance could be given to the medical profession in a case such as that before the court (at 862). See also Lord Browne-Wilkinson at 880, Lord Mustill at 888.
28 Attempts to establish by declaration, other than upon the application of the Attorney General or statutory regulators, that past conduct amounts to a criminal offence have been given short shrift - Inglis v Moore (1979) 24 ALR 411 at 414 (St John J) and 421 (Brennan and Davies JJ). See also Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435; Attorney-General v Able [1984] QB 795.
29 In matters relating to the regulation of corporate behaviour, applications for such relief have been entertained at the instance of the Attorney-General or the regulator - Attorney-General (NSW) v Australian Fixed Trusts Ltd [1974] 1 NSWLR 110; Corporate Affairs Commission v MG Securities (Australasia) Limited (1975) 1 ACLR 157. In the latter case, Reynolds JA (Moffitt P agreeing) expressed reservations as to whether any declaration should be made noting that:
"...the utility thereof by way of res judicata or otherwise would be open to question and it might do no more than embarrass the parties if a prosecution were launched." (at 163)
Mahoney JA described the procedure as "a beneficial one and .. apt for cases such as the present" (at 178). Each case will turn on its own circumstances. So in Biggs v DPP (1997) 17 WAR 534 a declaration was made in the Full Court of the Supreme Court of Western Australia that a verdict of acquittal given by a jury in the District Court entitled the accused to plead autrefois acquit in subsequent proceedings for the same offences even though the trial judge in the District Court had set aside the verdict on the basis of answers to questions she put to the jury after it had been delivered. Kennedy J accepted that while the jurisdiction to grant declaratory relief in relation to criminal proceedings can only be exercised in exceptional cases, it does exist. The case before the Full Court was one in which it was desirable to determine the questions raised. The grant of relief would not interrupt any criminal proceedings and could obviate the need for a new trial if the plea autrefois acquit were otherwise to fail in light of the ruling of the judge at first instance (at 544).
30 Other circumstances in which civil proceedings especially by way of judicial review have involved suspected criminal behaviour as their subject matter, include applications for review of committal decisions for federal offences and applications challenging the validity of the issue of search warrants or telephonic interception warrants and the like. In both categories of case relief, including declaratory relief, may be available but only in exceptional circumstances. As to committal proceedings see Kunakool v Boys (1987) 14 FCR 489 at 498-499 and the cases reviewed therein. In Flanagan v Commissioner of Australian Federal Police (1995) 60 FCR 149, the Full Court referred to the well established principle that:
"...criminal proceedings should not be fragmented by other courts' entertaining, except in exceptional or extraordinary circumstances, applications of various kinds by or against one or more of the participants in the criminal trial." (at 187)
If, however, a claim for relief involves a precise question of law emerging from a context of undisputed fact, especially a question the resolution of which may clarify the law for other cases, then prima facie there is much to be said in favour of courts hearing and determining such a claim (at 188). Where the facts are few and simple and the point is one of law, a claim may as an exception to the fragmentation principle be entertained on an application for judicial review (at 188).
31 What emerges from the case law generally is a spectrum of responses to claims for declaratory or consequential relief where such relief is based upon the proposition that the conduct at issue is or is not a contravention of the criminal law. At one end of the spectrum is the case involving a claim for a declaration based upon undisputed facts and a question of law such as the construction or validity of a statute or delegated legislation or a statutory instrument. Where there are no pending criminal proceedings the probability of such a claim being entertained is at its highest, albeit subject to discretion informed by the well-established reluctance of civil courts to enter into criminal jurisdiction. Where a prosecution is pending the prospect of obtaining relief is less. Where the claim is sought during a trial the prospect of obtaining relief are probably negligible. Where the claim is made after a trial it will ordinarily be seen as subverting established appeal processes albeit it may be entertained in exceptional circumstances - Biggs v DPP (supra).
32 Where, as in this case, a claim for relief is made after an investigation has commenced and collateral to an attack on a search warrant issued in connection with that investigation and where, as here, the claim for relief depends upon findings by the Court on the very matters of fact under investigation, the claim involves an unproductive interference with the normal processes of investigation and prosecution of criminal offences. On the parameters generally established by the authorities already referred to, this is not a case in which the relief claimed can be entertained. The factual matters asserted by Senator Crane in aid of his claim are not conceded by the third respondent. Nor could they be, for those very matters are the subject of investigation. In my opinion this case is well outside the range of cases in which the Court could properly entertain an application for declaratory relief. That element of Senator Crane's application fails.
The Claim for Parliamentary Privilege
33 The issue of parliamentary privilege has not been raised with any precision in the amended substituted application except indirectly in the grounds for relief where it is asserted against the validity of the warrants that:
"In their present form it is impossible to determine the scope of the warrants and therefore impossible to bring forward the claim for Parliamentary Privilege on any item which the police might seek to seize."
Nevertheless the President of the Senate, on behalf of the Senate, appeared by counsel. The President was not joined as a respondent to these proceedings. Counsel explained that his appearance was for a limited purpose only "to respond if necessary to any submissions that might be put in relation to a proper interpretation of the Parliamentary Privileges Act...". How precisely on the application before the Court it could enter upon a consideration of Senator Crane's claim of parliamentary privilege was not at all clear. Nevertheless I heard argument on the question. No doubt it would be a matter which could be cured by further amendment of the claims for relief if it were open to the Court to deal with the issue at all.
34 In the event, the documents in respect of which the claim for parliamentary privilege was maintained were set out in the consent order made on 6 October, which was in the following terms:
"1. The documents identified by the parties and contained in envelopes labelled respectively "Item No 5", "Item No 6", "Item No 7" and "Item No 8" be made available for inspection by the Court for the purpose of determination of a claim for parliamentary privilege.2. The electronic data storage media contained in the envelope marked "Electronic Media WAG5 of 1999" be released to the third respondent's solicitor for preparation for Court inspection by appropriate electronic means for the purpose of determination of a claim for parliamentary privilege.
3. The other documents held in the registry in the action be released to the third respondent."
35
The optical disks which were the electronically stored data required decryption by a technician following the hearing of the application before they could be examined. This took some time.
36 The electronically stored data seized from Senator Crane's Parliament House office was transferred on to two CD Roms which I have inspected so far as possible using a Court laptop computer. Some documents required the downloading of separate programs before they could be read and I have not inspected those. Generally speaking the stored documents comprised a miscellany including records, memoranda and the like relating to the administration of the Senator's parliamentary office. Other contents related to constituent and interest group and other organisational communications. Others related directly to parliamentary chamber work. For example a draft bill was included on the disk and standard form questions of the kind which might be asked in parliamentary committee proceedings were set out in another document. There was one document which contained in chart form, Sky West flights to and from Esperance.
37 The four envelopes numbered 5, 6, 7 and 8 were print outs of documents held electronically at Senator Crane's electoral office. They showed for each of the years 1995 to 1998 respectively detailed monthly sheets in a form of itineraries but including meetings and other functions for which written or telephoned apologies were to be tendered. With each monthly bundle was a calendar sheet for the month showing whether Senator Crane was or was to be in Esperance, Perth or Canberra. The running sheets plainly referred to his work as a parliamentarian with his constituents, his party organisation, special interest groups and so on. It included the names of people with whom the Senator would be meeting from time to time.
38 Both sets of documents included materials relating to the wide range of activities associated with being a Member of Parliament.
Parliamentary Privilege - Scope and Application
39 The constitutional base for the privileges of the Commonwealth Parliament is to be found in s 49 of the Constitution, which provides:
"The powers, privileges and immunities of the Senate and of the House of Representatives, and of the members and committees of each House shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom and of its members and committees, at the establishment of the Commonwealth."
From this section the Senate and House of Representatives derive the full powers, privileges and immunities of the House of Commons as at the foundation of the Commonwealth. Those powers, privileges and immunities are not subject to restriction by implication from the constitutional separation of judicial and legislative powers. As the High Court said in R v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157 at 167:
"...a general view of the Constitution and the separation of powers is not a sufficient reason for giving to these words, which appear to us to be so clear, a restrictive or secondary meaning which they do not properly bear."
The privileges and immunities of the House of Commons at the time of foundation of the Australian Federation included the freedom conferred by Article 9 of the Bill of Rights 1688:
"That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of the parliament."
This was a parliamentary response to the prosecution of a former speaker of the House of Commons for authorising publication, as a parliamentary paper, of a libel on the Duke of York - Lock, Parliamentary Privilege and the Courts: The Avoidance of Conflict, Public Law, Spring 1985 pp 64-95. Its immediate purpose was to provide protection for members of parliament against proceedings by the King in courts under his control for what they had said or done in proceedings in parliament - Harders, Parliamentary Privilege - Parliament versus the Court: Cross-examination of Committee Witnesses (1993) 67 ALJ 109 at 115 and references there cited.
40 The Australian parliament's declaration of the powers, privileges and immunities of the Senate and the House of Representatives pursuant to s 49 of the Constitution was not made until the passage of the Parliamentary Privileges Act 1987 (Cth). Like the enactment of Article 9 of the Bill of Rights, it was a response to a prosecution, namely that of the late High Court Judge and former Attorney-General, Lionel Murphy. The purpose of the Bill as described by the Senate President in introducing it was:
"To avoid the consequences of the very narrow interpretation and reading down of Article 9 of the Bill of Rights 1688 in its application to the Australian Parliament in the judgments of Mr Justice Cantor and Mr Justice Hunt in the Supreme Court of New South Wales in each trial in R v Murphy." - Sen Deb 7/10/86 p 892
The judgments referred to by the President of the Senate were rulings of Justices Cantor and Hunt, in the two trials of the late Justice Murphy, that prosecution witnesses could be cross-examined on evidence they had given in earlier Senate Select Committee proceedings. The ruling of Hunt J is reported in R v Murphy (1986) 5 NSWLR 18. That of Cantor J, given on 5 June 1985 is unreported. In each case the ruling was over the objection of the President of the Senate. The parliament set up a Joint Select Committee on Parliamentary Privilege which reported, in October 1984 - Parliamentary Paper No 219-1984. The Act gives effect to various of its recommendations.
41 The Parliamentary Privileges Act 1987 is described in its long title as:
"An act to declare the powers, privileges and immunities of each House of the Parliament and of the members and committees of each House, and for related purposes."
In s 5 of the Act it is provided that:
"Except to the extent that this Act expressly provides otherwise, the powers, privileges and immunities of each House, and of the members and committees of each House, as in force under section 49 of the Constitution immediately before the commencement of this Act, continue in force."
The Act therefore does not constitute an exhaustive code of parliamentary privilege. Specific provision is made in s 13 relating to unauthorised disclosure of in-camera evidence and submissions made to a House or a committee. Section 14 provides for immunities from arrest or detention in civil causes and attendance before courts or tribunals on any day on which the House or a committee of which that person is a member meets and for a period five days before and five days after any such meeting day. Section 16 provides for parliamentary privilege in court proceedings and is in the following terms:
"16(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 in relation 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 of the foregoing, 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 purpose 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.
(4) A court or tribunal shall not:
(a) require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or
(b) admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence, unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence.
(5) In relation to proceedings in a court or tribunal so far as they relate to:
(a) a question arising under section 57 of the Constitution; or
(b) the interpretation of an Act;
neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission in evidence of a record of proceedings in Parliament published by or with the authority of a House or a committee or the making of statements, submissions or comments based on that record.
(6) In relation to a prosecution for an offence against this Act or an Act establishing a committee, neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments, in relation to proceedings in Parliament to which the offence relates.
(7) Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act."
It may be seen from the opening words of s 16 that it engrafts the provisions of Article 9 and declares their effect to extend to that of the subsequent provisions of s 16. That does not codify or limit the operation of Article 9 in Australia for its declared effect is "in addition to any other operation".
42 In a written submission the President of the Senate, through the Clerk of the Senate, contended that the relevant law of parliamentary privilege is largely codified in s 16. It was said of the section:
"It restricts the use to which evidence of parliamentary proceedings may be put in proceedings before a court or tribunal."
Reference was made to 16(2) and the extended definition of "proceedings" therein. The decision of the Queensland Court of Appeal in O'Chee v Rowley (1997) 150 ALR 199 was cited. That case concerned defamation proceedings against a member of the Senate who had been ordered, in the Supreme Court, to produce certain documents for inspection. His claim for parliamentary privilege raised in respect of those documents was rejected at first instance. The Court of Appeal set aside the order for inspection. McPherson JA, with whom Moynihan J agreed, held that documents said by the Senator to have been created, prepared or brought into existence for purposes of or incidental to the transacting of Senate business were within the scope of parliamentary privilege derived from s 16. In so concluding McPherson JA looked for a connection with the then current business in the Senate Chamber. He compared the dates and descriptions of the relevant documents with extracts from the Weekly Senate Hansards which were in evidence. He observed:
"...it is in my opinion enough to say that recording and compiling notes of information supplied and writing letters on a particular subject in anticipation of imminent discussion or debate on the same subject in the Senate is what one would ordinarily expect a member of parliament to do before speaking on that topic in the House."(at 208-209)
Other documents in issue consisted principally, if not exclusively, of letters sent by or documents received from other persons or sources. The mere receipt by a parliamentarian of such documents would not, of course, confer parliamentary privilege on them. McPherson JA said at 209:
"The privilege is not attracted to a document by s 16(2) until at earliest the parliamentary member or his or her agent does some act with respect to it for purposes of transacting business in the House."
McPherson JA also considered the question whether production of a document covered by s 16(2) under compulsory process of the Court, amounted to impeaching or questioning in any court proceedings in parliament within the meaning of Article 9 of the Bill of Rights which has to be read in conjunction with s 16. This is consistent with the approach taken in the submission lodged on behalf of the President of the Senate where it is said that:
"In order to invoke the immunity against production of documents, the documents in question would have to be closely related to proceedings in parliament such that they would fall within the expression used in the Parliamentary Privileges Act, "for purposes of or incidental to" proceedings in Parliament."
43 It may confidently be supposed that most, if not all of the documents seized from Senator Crane's Parliamentary and Electorate offices would be recognisable by parliamentarians as typical of the myriad of papers that are produced as an incident of work as a parliamentarian. But that work and the papers it generates extend well beyond what could be described as "in the course of, or for purposes of or incidental to, the transacting of the business of a House or a committee". I would not have regarded the itineraries as falling within the protected class. The fact that they may include names of constituents who have made representations or have had meetings with the Senator and which neither they nor the Senator would want to make public does not of itself raise an issue of parliamentary privilege. The documents do not otherwise answer the description in s 16.
44 The documents on the disks, to a substantial degree, comprise internal office communications and standard documents which will have little, if any, relevance to the proper objects of the search warrants. On the other hand, some which might relate to the Senator's movements during the relevant period, may be of relevance. Like the itineraries, any such documents would seem unlikely to attract parliamentary privilege by reference to the criteria in s 16.
45 In the end however while these observations may be of assistance to the parties in reviewing their respective positions, they are academic. That is because in my opinion it does not fall to this Court to determine the exercise of parliamentary privilege here. Indeed it does not seem to me that the relevant privilege, if it exists, arises under s 16 at all. The documents in question have been seized pursuant to a search warrant issued under s 3E of the Crimes Act 1914. The issue of the warrants, albeit done in each case by an issuing officer who was a magistrate, was an administrative and not a judicial act:
"The power to issue a warrant to enter, search and seize must be exercised judicially. But these indicia do not stamp the power to issue a search warrant with the character of the judicial power of the Commonwealth. The issuing of a warrant can be described as a judicial act but not in the sense of an adjudication to determine the rights of parties. Although judicial review is available to review an exercise of the power to issue a warrant, it is available whether the power be classified as judicial or as administrative in nature. And although the duty to exercise the power to issue a warrant must be exercised judicially, that means only that the power must be exercised without bias and fairly weighing the competing considerations of privacy and private property on the one hand and law enforcement on the other. In Love v Attorney-General (NSW), this Court held that the power conferred by a State law on the Supreme Court of New South Wales to issue a warrant authorising the use of a listening device was an administrative not a judicial power, though it was a power to be exercised judicially. Nor was the act of exercising the power a judicial act in the sense of an adjudication to determine the rights of parties." Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348 at 359-360
The former s 10 of the Crimes Act 1914 was the statutory predecessor of s 3E. The latter provision was substituted for s 10 by the Crimes (Search Warrants and Powers of Arrest) Amendment Act 1994. In the joint majority judgment of the High Court in Jacobsen v Rogers [1995] HCA 6; (1995) 182 CLR 572, it was said of s 10:
"The section is concerned with the investigation and prosecution of crime. That is a function of the executive government and the section operates in aid of that function." (at 587)
The issue of a search warrant therefore differs fundamentally from the issue of a subpoena or the making by a court of an order for the production and inspection of documents or the requirement that a person answer questions. Those are coercive processes of a court. The court can be asked, in connection with those processes, to determine questions of parliamentary privilege that may arise pursuant to s 16 of the Parliamentary Privileges Act and Article 9 of the Bill of Rights which are essentially concerned with the interaction between parliamentary and judicial proceedings. The issue of a search warrant is an executive act in aid of an executive investigation. The investigation may lead to the initiation of criminal proceedings. It may clear the person concerned or yield insufficient evidence to justify the initiation of a prosecution. The issue of a search warrant itself does not commence any judicial proceeding. The production of the documents for which privilege was claimed in this case to the Registrar of the ACT Supreme Court and subsequently to the District Registrar of this Court, does not change the character of the seizure. Whether privilege is to be asserted by the Senate must therefore be resolved between the investigating authorities and the parliament.
46 It might be thought that the approach outlined above runs counter to the proposition, for which Jacobsen v Rogers is authority, that a claim of public interest immunity raised by a State agency against seizure of documents under a Federal search warrant can be dealt with on judicial review of that warrant. The majority in their joint judgment said in that case:
"As is demonstrated by Baker v Campbell [(1983) [1983] HCA 39; 153 CLR 52] and by this case, if a dispute arises as to the existence of the immunity, means are available to obtain a judicial determination of the issue. In any event, practical difficulties in giving effect to the immunity in the context of the execution of a search warrant would seem to us to be an inadequate reason for holding the doctrine to be inapplicable." (at 589)
The proposition that a court, on judicial review of the issue or execution of a search warrant, can determine claims of executive privilege or public interest immunity in relation to seized documents, does not translate to the case in which a claim of parliamentary privilege is made in respect of the seizure. This is because there is a fundamental difference between public interest immunity and parliamentary privilege. The immunity from production that courts will concede to some official documents is the expression of a self imposed judicial restraint. It involves a balancing exercise between the interests of the executive in the confidentiality of certain documents and the competing interest in the administration of justice. This may be subject to principles conferring near absolute immunity on cabinet papers - Commonwealth v Northern Land Council [1993] HCA 24; (1993) 176 CLR 604.
47 The sources of parliamentary privilege in the Commonwealth parliament are the Constitution, the Bill of Rights and the Parliamentary Privileges Act. Those sources, while partly codifying the privilege through s 16 leave in place other elements of the powers, privileges and immunities of the House of Commons of the United Kingdom at the establishment of the Commonwealth. But whatever the full content of parliamentary privilege it does not derive from judge made rules nor does it depend for its application upon any exercise of judicial discretion. While the law of parliamentary privilege may properly be applied by the court in judicial proceedings where the privilege impacts upon the exercise of the court's jurisdiction and powers, it is not, in the ordinary course, for the courts to decide questions of privilege as between the Executive and the Parliament in litigation between the subject and the executive. That is not to say that such questions may not arise in litigation in which, for example, the presiding officer of the House is a party, eg Egan v Willis [1998] HCA 71; (1998) 195 CLR 424.
48 The question of parliamentary privilege against executive action arose for consideration in the Full Court of the Supreme Court of Western Australia in Halden v Marks (1995) 17 WAR 447. There the court was asked, in proceedings between a Royal Commissioner and a member of parliament, whether the Commissioner could proceed under his terms of reference, which related to the presentation of a petition to the Legislative Council, without breaching the privileges and immunities of parliament. The Full Court, like the judge at first instance, declined to adjudicate upon the point. It accepted as a "settled principle" the proposition that "the courts will not intrude on the role of Parliament and will endeavour to regulate their own proceedings so as to avoid doing so" (at 462). As was pointed out in the judgment, the cases in which courts have adjudicated upon parliamentary privilege fall into two main categories:
1. Where a question of parliamentary privilege is raised in a case already before the court, as for example, where a party seeks to rely on something said to done in parliament.
2. Where the court has been asked to review action by parliament to enforce its proceedings, most commonly where parliament has by warrant sought to subject a citizen to restraint by arrest. (462)
Their Honours said:
"In this case, the appellants seek to have judicially determined both what is the application of the privilege defined in Art 9 to the proceedings and the proposed proceedings in the Commission, and whether the conduct of those proceedings will be a breach of that privilege. We cannot see how that can be done without intruding into the exclusive domain of parliament to "determine for itself, without review, what is contempt": see Victoria Legislative Assembly Speaker v Glass (1871) LR 3, PC App 560 at 573."
49 As senior counsel for the third respondent said, there are few occasions when any person comes to the court simply seeking to vindicate a privilege of parliament where it is not incidental to some pending cause before the court. Counsel characterised this application, insofar as it related to parliamentary privilege, as an attempt to enforce through the court a claim for privilege, a course not done or permitted in the past. Counsel submitted that if the claim is to be advanced or vindicated then it should be done by the parliament and in the parliament. Counsel for the President of the Senate had no instructions on the question whether the court was an appropriate forum for the ventilation of the privilege issue, but submitted that that was really for the court to decide. No submission was made on behalf of the Senate on the question whether parliamentary privilege under s 16 of the Act could be invoked in relation to the search and seizure of documents pursuant to a search warrant. As is apparent, I agree with the thrust of the submission made by counsel for the third respondent. Where documents the subject of a claim of privilege on the part of a House of Parliament are tendered in a court in the context of a prosecution or other proceeding the court may have to decide the question for itself, applying the provisions of s 16. But the subject documents, being seized in aid of a lawful administrative investigation, the claim for privilege in respect of them does not arise under s 16 and does not otherwise fall for determination by the court in this litigation.
Conclusion
50 For the above reasons, the application will be dismissed. I will make an order that the applicant pay the third respondent's costs of the application, but will allow liberty to apply to vary that order within fourteen days. In respect of the documents which were retained in the custody of the Court and which I have examined, I will direct that they be delivered to the Clerk of the Senate to be dealt with in accordance with the directions of the President of the Senate. As to that order I will also allow the parties, within fourteen days, to make submissions to vary its terms if an alternative disposition can be agreed.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. |
Associate:
Dated: 18 February 2000
Counsel for the Applicant: |
Mr P W Nichols and Mr J L Davies |
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Solicitor for the Applicant: |
Davies & Co |
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Counsel for the Third Respondent: |
Mr E M Heenan QC |
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Solicitor for the Third Respondent: |
Australian Government Solicitor |
Counsel for the Senate of the Commonwealth of Australia |
Mr G A Flynn |
Date of Hearing: |
6 October 1999 |
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Date of Judgment: |
18 February 2000 |
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