Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 435

In order to understand the arguments advanced in support of, and in opposition to, the tender, some background matters should be mentioned. The applicant has sued the respondent for damages for breach of contract for the alleged uniawful termination of the "Coastwatch" contract. In its Defence, the respondent says that its termination was justified on several grounds. In its Reply, the applicant says that the respondent was not entitled to terminate because the respondent was not

itself then ready and willing to perform the agreement (see

Carter, Breach of Contract (1984) at pp.347-350). The applicant

gives further particulars of its Reply to the effect that, prior to its termination of the "Coastwatch" contract, the respondent had entered into an agreement with Skywest Aviation Pty. Ltd. ("Skywest") that Skywest would provide the services agreed to be provided by the applicant; that, shortly prior to the termination of the applicant's contract, Sir Peter Abeles, a director of Skywest, suggested to Senator Evans, the Minister administering the Department responsible for the coastwatch arrangements, that the respondent should grant no concessions to the applicant in the performance of its contract; and that the Minister then decided to insist upon full compliance by the applicant with every requirement of its contract.

The applicant seeks to tender part of a question put to the Minister in the Senate on 16 December 1987 together with part of the Minister's answer. Hansard records the following (the

material sought to be tendered has been emphasised):

Senator MESSNER My question is -addressed to the Minister for Transport and Communications. Did the Minister have a tate hone conversation with Sir Peter Abeles on or about 2 September 1987, or on any other occasion, concerning the Coastwatch contract? What was the nature and purpose of that or any other such

Senator GARETH EVANS I simply cannot recall. I did have one conversation which touched on that in the aftermath of the acquisition by Ansett Airlines of Australia of Skywest Aviation Pty Ltd, the substance of which was that Ansett had no particular interest in the matter one way or another and that I should resolve it as I saw fit, based on the contractual merits of the occasion, without the need to be concerned that there would be any litigation

initiated of the kind that I think was _ being threatened in a roundabout way, or more directly by

the Skywest management at the time. I have no recollection of when that conversation was. I think that it was the only conversation I have ever had on the subject. Certainly 1t was one that does not give any encouragement to those conspiracy theorists around the place who have seen all along some mysterious third party or some other hand lying behind the course of events. That is absolute nonsense. It is particular nonsense in the context of Ansett's interest in this, which was minimal."

As has been noted, the tender is said by the respondent to be prohibited by s.16(3) of the Parliamentary Privileges Act 1987. In order to understand the mischief sought to be remedied by its provisions some reference should be made to the case law

In Rv. Turnbull [1958] Tas. S.R. 80, on the trial of charges of official corruption, the Crown sought to lead evidence of statements made in the Tasmanian House of Assembly by the prisoner in his capacity as Treasurer of the State of Tasmania. Gibson J. upheld an objection to the tender. He referred (at p.84) to the declaration in the Bill of Rights 1688 (s.1, art. 9) that "the freedom of speech and debates on proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament". He then said that "[t]he necessity for protection in relation to statements in Parliament applies with particular force to those of the responsible Ministers of

the Crown." (See also the discussion by Professor Enid Campbell,

Parliamentary Privilege in Australia (1966) at pp.36-7).

In Turnbull, the Crown also sought to lead evidence of

the times of certain proceedings in the House. Gibson J.

disallowed the objection, saying (at p.84) that there was no need

In Dingle v. Associated Newspapers Ltd. [1960] 2 Q.B.

405, in an action for damages for libel, questions of parliamentary privilege arose as a result of an indication that the plaintiff would attack a report of a select committee of the House of Commons. Pearson J. held that no such attempt could properly be made outside Parliament. He relied on the reasoning

in Bradlaugh v. Gossett [1884] 12 Q.B.D. 271, per Stephen J. at

pp.278-9, that what is said or done within the walls of the House

of Commons cannot be inquired into in a court of law.

In Church of Scientology of Californi v. dJohnson-Smith {1972} 1 Q.B. 522, another libel action, the plaintiffs sought to refute the defendant's plea of fair comment by reading extracts from Hansard in order to establish malice. Excluding the evidence, Browne J. stated (at pp.529-530}) that what is said or done in the House "cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House." Browne J. also accepted, as another basis for the privilege, that a member of Parliament must have a complete right of free speech in the House "without any fear that his motives or intentions or reasoning will be questioned or held against him thereafter" (at p.530). Referring to a submission put by the Attorney-General that Hansard could be read only for a limited purpose, Browne J.

"[The Attorney-General] said [Hansard] could be read simply as evidence of fact, what was in fact said in the House, on a particular day by a particular person. But, he said, the use of Hansard must' stop there and that counsel was not entitled to comment upon what had been said in Hansard or to ask the jury to draw any inferences from it....But the general principle is quite clear, I think, and that is. that these extracts from Hansard...must not be used in any way which might involve questioning, in a wide sense, what was said in the House..."

Art. 9 of the Bill of Rights was considered by Gibbs A.C.J. in Sankey v. Whitlam (1978) 142 C.L.R. 1 at pp.35-7. The Acting Chief Justice said (at p.37) that the English authorities established that -

",..a member of Parliament, even if he has not obtained the permission of the House, cannot object to giving evidence of facts that occurred in the course of a sitting of Parliament, such as that a particular member spoke (without disclosing what he said) or was present and acted in*a particular capacity (for example as Speaker, or as a peer). The fact that documents were tabled (without disclosing who tabled them) seems to be evidence of the same kind, i.e., merely of an event which happened, and must be divulged by a member called as a_ witness, even without the consent of the House."

In Finnane v. Australian Consolidated Press Ltd. [1978]

2 N.S.W.L.R. 435, an action to restrain the further publication of material said to be confidential, counsel for a defendant sought to cross-examine the plaintiff concerning statements made in the Federal Parliament. Needham J. rejected the question, saying (at p.438-9) that, although Hansard could be used for the limited purpose of proving what was said, "{iJf anything further were to be adventured, for example, comments on the material by counsel or, no doubt, by the court, that would be a matter in which it would be likely that the House would exercise its

In Uren v. John Fairfax & Sons Ltd. [1979] 2 N.S.W.L.R.

287, the defendant sought to interrogate the plaintiff with a view to seeking admissions that the plaintiff, then a Minister, made certain speeches in the Commonwealth Parliament. Begg J. allowed the interrogatories on the footing (at p.289) that by this means the defendant was "merely seek[ing] to prove, as a matter of fact, that the plaintiff and others had made certain speeches in the House - not in any way to criticise them, nor to call them in question in these proceedings, but to prove them as facts upon which the defendants allege comments were made in the

In Mundey v. Askin [1982] 2 N.S.W.L.Re 369, a defamation action arising from an election speech, Hansard was admitted into evidence to prove, as a fact, that certain things had been said in the course of a debate in the Legislative Assembly. The Court of Appeal said (at p.373) that ""[{t]here was no question of any further examination of the circumstances in which the debate had taken place or the motives of the participants, or of anything

Mundey v. Askin was followed by Hunt J. in Henning v.

Australian Consolidated Press Ltd. [1982] 2 N.S.W.L.R. 374. It was held that Hansard could be used to prove what was stated in Parliament but it was accepted (at p.375) that the "privilege is properly invoked to prevent any inquiry into the motives and intentions of Members of Parliament in relation to anything they

Australian Broadcasting Corporation (1983) 50 A.C.T.R. 1 where,

in an action for defamation, Blackburn C.J. allowed the tender of

Hansard. Disagreeing with the decision in Finnane's Case,

",..the way in which the court complies with Art 9.... and with the law of the privileges of Parliament, is not by refusing to admit evidence of what was said in Parliament, but by refusing to allow the substance of what was said in Parliament to be the subject of any submission or inference. The court upholds the privileges of Parliament, not by a rule as to the admissibility of evidence, but by its control over the pleadings and the proceedings in court."

The Church of Scientology Case was followed in R v.

Secretary of State for Trade; Ex parte Anderson Strathclyde

ple [1983] 2 All E.R. 233. In an application for judicial review, it was heid that the report in Hansard could not be used to seek relief in respect of something which occurred

",..there is no distinction between using a report in Hansard for the purpose of supporting a cause of action arising out of something which occurred outside the House, and using a report for the purpose of supporting a ground for relief in proceedings for judicial review in respect of something which occurred outside the House. In both cases the court would have to do more than take note of the fact that a certain statement was made in the House on a certain date. It would have to consider the statement or statements with a view to determining what was the true meaning of them, and what were the proper inferences to be drawn from them. This, in my judgment, would be contrary to art 9 of the Bill of Rights. It would be doing what Blackstone said was not to be done, namely to examine, discuss and adjudge on a matter which was being considered in Parliament. Moreover, it would be an invasion by the court of the right of every member of Parliament to free speech in the House with the possible adverse effects referred to by Browne J."

In Rv. Murphy (1986) 5 N.S.W.L.R. 18 a question arose as to the use which could be made of evidence given before a Select Committee to the Senate. It was accepted by the parties that the proceedings of such a committee are included within the phrase "proceedings in parliament" in art. 9 of the Bill of Rights. Hunt J. ruled, in advance of the trial, that, without breach of privilege, witnesses could be cross-examined in relation to the evidence which they had given before a Senate Select Committee; and that this evidence could be the subject of comment or used to draw inferences or conclusions. Hunt J., following Cantor J., who gave a similar ruling at the first trial, held (at p.38) that the only protection given by art. 9 is to prevent court or similar proceedings having legal consequences against a member of parliament or a witness before a parliamentary committee where those legal consequences have the effect of preventing that member {or committee -witness) exercising his freedom of speech in parliament (or before a

Finally, in R v. Jackson (1987) 8 N.S.W.L.R. 116, Carruthers J., following the English authorities and not following Hunt J., rejected the tender of Hansard by the prosecution in a criminal trial. In support of the tender, the prosecution had argued that the evidence was admissible in that the statements made by the accused, then a Minister, in the House related to material issues in the trial and were, by reference to the other evidence in the trial, "patently untrue" (at p.117).

After referring to Anderson Strathclyde, supra, Carruthers J.

"T am in general agreement with the views expressed by Dunn L.J. with regard to the purpose for which Hansard may be used in court, whilst at the same time acknowledging the difficulty of defining with precision the ambit of art 9.

The present case is clearly distinguishable from Mundey. Here the prosecution sought to do far more than merely prove what Jackson said in the House. It sought in support of its case to establish that Jackson told lies in the House in relation to matters which were material issues in the trial, namely the nature of his relationship with his co-accused Harris and the circumstances under which certain identifiable prisoners were released under licences granted pursuant to the Crimes Act 1900, s.463.

The prosecution sought to prove, as I have said, that the sole motive for such alleged lies was a realisation of guilt by Jackson anda fear of the truth.

If I were to have allowed the tender of Hansard for these purposes against Jackson this would necessarily

Such an inquiry would, in my view, contravene art 9. It would necessarily have involved an impeaching or questioning in this Court of debates or proceedings in Parliament."

By s.49 of the Constitution, it is provided that the powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the 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. (See R v. Richards; Ex parte Fitzpatrick and Browne (1955) 92 C.L.R. 157.)

The Parliamentary Privileges Act 1987 ("the Act") 1s, as

its long title indicates, a statute declaring the powers,

privileges and immunities of each House of Parliament and of the

members and committees of each House, and for related purposes. Except to the extent that the Act expressly provides otherwise, the powers, privileges and immunities of each House, and of the members and the committees of each House, as in force under section 49 of the Constitution immediately before the commencement of the Act, continue in force. Parliamentary privilege in court proceedings is dealt with by s.16: "[flor the avoidance of doubt, it is...declared and enacted that the provisions of art. 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 [s.16]" (s.16({1)). "Proceedings in Parliament" includes "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" (s.16(2)). Section 16(3), the provision now relied on by the

"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."

In relation to proceedings in a court so far as' they

relate to the interpretation of an Act, neither s.16 nor the Bill

of Rights, 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

In explaining the Bill for the Act in his second reading speech, the President of the Senate said (Hansard, proceedings in

"The main purpose of this Bill is 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 of the Supreme Court of New South Wales in each trial in R v Murphy."

' After discussing "some of the authorities, including

"The narrow reading down of article 9 contained in the judgments of Hunt, J would, if followed, pose a serious threat to the freedom of speech of members of parliament, to whom it applies, as well as _ to witnesses before parliamentary committees....If a member were called as a witness in a civil or criminal action it would be open to counsel to cross-examine the member on the member's contribution to parliamentary proceedings for the purpose of discrediting the member's evidence.

It is clear, therefore, that the judgment of Hunt, J would allow a member's participation in parliamentary proceedings to be used against the member in court proceedings in a way not thought possible hitherto. Such a situation is clearly a serious inroad on the freedom of speech in Parliament and ought not to be countenanced....

The Bill proceeds from the starting point that article 9 is part of the law of Australia under section 49 of the Constitution, and then indicates that it is to be given the broad and previously- established interpretation. There are two reasons for framing the B11l in this fashion: First, because

the Bill must start with a general declaration of the immunity of parliamentary proceedings from question or examination, and the language of article 9 is difficult to improve upon; and secondly, to make clear the Parliament's belief that article 9 should properly be interpreted, as the Bill provides, and always should have been interpreted that way." A similar explanation was given to the House of Representatives by the Speaker in the second reading speech in that House (See Hansard proceedings in the House of

In the explanatory memorandum accompanying the Bill, there is an explanation of the objectives sought to be achieved by cl.16 of the Bill. There is a discussion of the English and Australian cases. It is said (at p.9) that the purpose of the

clause "is to avoid the consequences of the*interpretation of article 9 of the Bill of Rights 1688 by the judgments of Mr Justice Cantor and Mr Justice Hunt of the Supreme Court of New

Referring to sub-cl. 3 of cl.16, the memorandum contains

paragraphs: (a) calling into question parliamentary proceedings

This is the most obvious and clear prohibition contained in article 9. It prevents, for example, a statement in debate by a member of Parliament or the evidence of - a parliamentary witness being directly attacked for the purpose of court proceedings, or the motives of the member or the witness in speaking in Parliament or giving evidence being attacked. Thus, it cannot be submitted that a member's

statements in Parliament were not true, or reckless, to support a submission that the member is an untruthful, or reckless, person.

attacking the credibility, motives, etc. of a person on the basis of proceedings in Parliament

This would prevent, for example, a member's speech in debate or a parliamentary witness's evidence being used to establish their motives or intention for the purpose of supporting a criminal or civil action against them, or against another person. Thus a member's statements outside Parliament cannot be shown to be motivated by malice by reference to alleged malice in the member's statements in Parliament.

drawing inferences or conclusions to support a criminal or civil action

This would prevent, for example, a jury being invited to infer matters from speeches in debate by members of Parliament or from evidence of parliamentary witnesses in the course of a criminal or civil action against them or another person. Thus a member's speech in Parliament cannot be used to support an inference that the member's conduct outside Parliament was part of some illegal activity. This would not prevent the proving of a material fact by reference to a record of proceedings in Parliament which establishes that fact, e.g., the tendering of the Journals of the Senate to prove that a Senator was present in the Senate on a particular day. These prohibitions express the limitations on the use of parliamentary proceedings which were held to flow from article 9 in the earlier court judgments. Basically, what they

used against" a person in the broad sense, that is, not only being made the subject of a criminal or civil action, such as where a member is sued for words spoken in debate,

but also being used to support a civil or criminal action against a person."

because it is for the limited purpose of proving that the Senator

made a statement in Parliament in which he admitted having the conversation alleged. It is true that, before the enactment of s.16, it was permissible to use Hansard for the limited, but non- contentious, purpose of proving that a member of Parliament was present in the House ona particular day. According to the memorandum explaining the operation of s.16(3)(c), this is still a legitimate approach. This would accord with the language of s.16 and with its apparent purpose, that is to say, that a member of Parliament shovld be able to speak in Parliament "with impunity and without any fear of the consequences" (per Gibbs A.C.J. in Sankey v. Whitlam, supra, at p.35). Where, as here, the subject matter of the passage from Hansard is contentious in that 1t is sought to be used to impugn the conduct of the Senator, in the context of a denial by the respondent of any impropriety, it is almost inevitable that the! tender of Hansard would lead to an examination of the circumstances in which the Senator came to make the statement and that this would further lead to an attempt to assess the credibility of this evidence and to compare it with other evidence already given. Such an examination, in a contentious area, cannot be reconciled with the complete freedom of speech envisaged by the Bill of Rights and the Act. It would be otherwise if the tender were for a non-contentious purpose, for instance, to prove that certain documents were tabled in Parliament, without disclosing who tabled them (see Sankey v. Whitlam, supra, at pp.35-37); or, as in Turnbull, to prove the time of proceedings. If what is involved in a tender of evidence from Hansard is simply not capable of being contentious, it is difficult to see how the

But what is sought to be done here is to use Hansard to justify an inference that Senator Evans was influenced by Sir Peter Abeles in the context of the respondent's decision to terminate the applicant's contract. This is a highly contentious matter. In my view, the present tender is by way of or for the purpose of questioning the motive, intention or good faith of the Senator and is thus proscribed by s.16(3)(b). Also, in my opinion, the tender is by way of, or for the purpose of, inviting the drawing of inferences or conclusions from what was said in the Senate and is thus made unlawful by s.16(3)(c). The tender

It was further submitted on behalf of the applicant that s.16(3) was beyond power and unconstitutional 'because it involved an impermissible interference with the judicial function. In my view, subject to one possible qualification, to which reference will be made shortly, there is no substance in the argument. Section 49 of the Constitution contemplates that the Parliament shall have the power to declare the powers, privileges and immunities of the Senate and of the House of Representatives (see Rv. Richards; Ex parte Fitzpatrick and Browne, supra). The purpose and effect of s.16 of the Act is, as s.16(1) states, to avoid any doubts which might otherwise have arisen. The provisions of s.16(3), in my view, are, in substance, declaratory of the position both in England and in Australia before the enactment of the Act. Since s.16 has as its intended operation the clarification of doubts which may have arisen from the

decision in R v. Murphy, supra, it is, I think, impossible to

suggest that this provision travels beyond s.49. Further, in my view, it cannot be said that the Act involves any impermissible interference with the judicial function. In Rv. Richards; Ex

parte Fitzpatrick and Browne, supra, it was held that it is for

the courts to judge of the existence in either House of Parliament of a privilege but, given an undoubted privilege, 1t is for the House to judge of the occasion and of the manner of its exercise (see at pp. 162, 166). There is nothing in s.16, in its terms or by any process of implication, which purports to take away the power of the courts in these respects. The Act proceeds upon the footing that it is open to, and no doubt, the duty of, the courts to construe the provisions of the Act and to apply them in a particular case. The actual occasion for exercise of a privilege is another matter. In my opinion, s.16

When senior counsel for the applicant sought to tender the extract from Hansard, senior counsel for the respondent opposed the production of the material to the court on the ground that even to read it would be a breach of s.16(3). In my view, it is open to the court, without any breach of s.16(3), to look at the extract from Hansard on a de bene esse basis, that is to say, to receive it provisionally for the purpose of a_ temporary and conditional examination in order to enable the court to inquire whether the reception of the extract into evidence is, or is not, prohibited by s.16(3) as properly construed. In this way, there can be no suggestion of any impairment of the judicial function. The document can be looked at by the court for the

purpose of ascertaining whether its reception into evidence would

or would not amount to a breach of Parliamentary privilege. If, on the other hand, s.16 should be construed in the manner contended for by senior counsel for the respondent, that is to say, if the court were not able to even look at the extract ona provisional basis without offending s.16(3), then a question of constitutional invalidity might have arisen. However, as has been said, in my view, s.16(3) should not be construed in this

way. It is open to the court to consider the document de_ bene

esse as was done in the Anderson Strathclyde Case, supra, at

The applicant also seeks to tender part of a newspaper report of proceedings in the Senate. The report, in the "Sydney

Morning Herald" dated 17 December 1987, is as follows (the

CANBERRA: The Minister for Transport and Communications, Senator Evans, confirmed esterda that rominent businessman Sir Peter Abeles haw honed him about the contract for surveillance of Australia's northern coastline.

But Senator Evans [said] there was nothing improper about the call and stood by his statement to the Senate in September that neither Sir Peter nor anyone acting on his behalf had exerted pressure of any kind on the Government to cancel the contract to Amann Aviation.

Skywest lost the contract to Amann in March. But it was asked to continue the operation after the Amann contract was terminated.

Under Opposition questioning, Senator Evans said he did have one conversation with Sir Peter "which

• touched upon that in the aftermath of the acquisition by Ansett of Skywest".

The substance was that Ansett had no particular interest in the matter one way or the other, and that I should resolve it as I saw fit..."he told Parliament.

Sir Peter had assured him that he could consider the matter "without need to be concerned" that there would be any legal action by Skywest.

The Opposition Leader in the Senate, Senator Chaney, said Skywest had threatened to withdraw its services from the coastwatch program. He tabled a report to the minister from the associate secretary in the Transport Department, Mr Roger Beale, which warned

that the Government would be forced to bear "much of the odium" if the threat was carried out.

In my opinion, the tender of this material should be rejected for two reasons. First, its reception would infringe the provisions of s.16(3) for the reasons given in dealing with the tender of the extract from Hansard, that is to say, the purpose of the tender is just as much a proscribed purpose as the tender of Hansard itself. The tender is thus made unlawful by virtue of s.16(3). Secondly, in any event, the material is bad in form, being hearsay only. It is tendered to prove that a statement was made in the Senate by Senator Evans. Even 1f it were permissible to treat this as an admission of fact made by the Senator as the responsible Minister, thus falling within one of the exceptions to the hearsay rule, it is not possible to prove the fact of this alleged admission by the tender of a

I certify that this and the preceding SEVENTEEN (SF) pages are a true copy of the Reasons for Judgment herein of Mr. Justice Beaumont.

L.C. Gruzman Q.C., D.A. Cowdroy and A.M. Gruzman instructed by Owen D. Hodge & Son.

D.E. Grieve Q.C., P. Comans instructed by Australian Government Solicitor 2,3,4,9 August, 1988