Issue (2): Assuming there is a conflict between s 16(3) of the PP Act and s 24 of the PID Act, are the terms of s 24 such as to exclude the operation of s 16(3)?
54 It is convenient to deal with these two issues together, because, while they are different, and the second issue involves an assumption that is addressed by consideration of the third issue, the arguments advanced and their resolution are intertwined and closely related.
55 During the course of the first appeal hearing, the Court raised a question about the requirements imposed by s 49 of the Constitution in relation to altering the operation of parliamentary privilege once it has been provided for by Parliament. Section 49 of the Constitution is reproduced at [18] above. The issue raised went to the interpretation of s 16(3) of the PP Act in the context of s 49 of the Constitution, not to the validity of s 16(3) per se. The s 78B notices to which reference was made at the outset were then served. As noted, none of the attorneys-general intervened.
56 The competing arguments as to the effect of s 24 of the PID Act in relation to s 16(3) of the PP Act involve the interpretation of the reference in s 49 of the Constitution to powers, privileges and immunities of both houses of parliament being "such as are declared" by Parliament, as well as the terms of s 16(1) of the PP Act referring to "declared and enacted". It is a question of statutory interpretation. No question of constitutional validity of any provision of either the PP Act or the PID Act arose in the appeal.
57 The ABC raised for the consideration of the Court whether this question of interpretation required determination, citing a long line of High Court authorities, commencing with Lambert v Weichelt (1954) 28 ALJR 282 at 283, to the effect that it is not the practice of the Court to investigate and decide a constitutional question unless there exists a state of facts which make it necessary in order to do justice to the case and to the parties: see also LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18; 95 ALJR 490 at [90], [116] and [125] and the cases cited; and CMU16 v Minister for Immigration and Border Protection [2020] FCAFC 104; 277 FCR 201 at [64]-[65] (noting that in CMU16 this was a secondary reason for declining to determine the constitutional question in light of the tenuous factual basis for it arising at all).
58 The restraint identified in Lambert is of particular importance when the question involves not just the interpretation of the Constitution, but also the validity of the legislation in question, not least because a finding of invalidity may have wider and more serious implications than a determination confined to interpretation: see LibertyWorks at [90]; and Knight v Victoria [2017] HCA 29; 261 CLR 306 at [33]. That greater reason for restraint is absent given the lack of any question of invalidity.
59 The question as to constitutional interpretation arose on an undisputed aspect of the facts of this case, and was able to be fully ventilated in both written and oral submissions. The facts in this case involve an attempt to sue upon the basis of material said to give rise to a PID that it is accepted involves, and plainly does involve, proceedings in Parliament in the extended sense provided for by s 16(2) of the PP Act. The only way to avoid the question of constitutional interpretation in the present appeal is to confine the Court's consideration to the contested third issue as to whether a conflict arises between s 16(3) of the PP Act and s 24 of the PID Act, and whether the latter is confined to the provisions to which it expressly refers. There is possible scope for a different conclusion to be reached on that point, which if wrongly decided could leave the dispute unresolved and lead to a further appeal. The determination of the first two issues, involving the interpretation of s 49 of the Constitution, is arguably less contestable and capable of determining the outcome of the appeal irrespective of the conclusion reached on the issue of whether there is a conflict between s 16(3) and s 24. It is therefore desirable, and arguably also necessary, to decide the constitutional question, as well as the conflict question as a secondary issue, in order to do justice and determine the rights of the parties as to any limits on the case that the appellant is entitled to bring.
60 The difference between the parties lies in the continuing effect of s 49 on what is required to change the operation of parliamentary privilege, and whether that requirement has been met.
61 The appellant contends that s 24 of the PID Act displaces s 16(3) of the PP Act from having any application at all. The substance of the appellant's argument is that once the legislative power to state what constitutes parliamentary privilege provided for by s 49 of the Constitution has been exercised, the product of that exercise of power, being the PP Act, is like any ordinary Commonwealth statute, with its operation able to be changed by amendment or by the operation of another Commonwealth statute, whether directly and expressly, indirectly, or by implication. The appellant submits that the constitutional conception of a "declaration", properly understood, does not support any special rule of construction or especially strong presumption requiring clear words to override it. The appellant submits that a "declaration" is an ordinary enactment subject to ordinary principles of statutory construction. On this argument, the reference to "declared" in s 49 of the Constitution and the use of the word "declare" in the long title of the PP Act, and of the phrase "declared and enacted" in s 16(1), do not render the PP Act as being somehow constitutionally entrenched so as to displace s 24 of the PID Act. The substance of the argument is that nothing is needed beyond what appears in s 24 of the PID Act in order to exclude altogether the operation of s 16(3) of the PP Act upon the provisions of the PID Act referred to therein.
62 The ABC contends that s 24 of the PID Act does not displace s 16(3) of the PP Act because:
(a) in order for such displacement to take place, s 24 had to constitute, in substance, a "declaration" for the purposes of s 49 of the Constitution, which it does not;
(b) alternatively, given what is submitted to be the "constitutional significance" of s 16 of the PP Act, clear words or a necessary implication is required to displace the operation of s 16(3), and s 24 of the PID is insufficient on both counts; and
(c) in any event, there is no conflict between the two provisions which accordingly can, and do, co-exist (this argument is addressed as Issue (3) below).
63 The appellant submits that the distinction between the ABC's first two arguments arising from s 49 of the Constitution is somewhat illusory. There is some force to that submission. However, there is a subtle distinction, rather than a bright line, between what is in substance a declaration, and a necessary implication or clear words falling short of being in substance a declaration. Even so, the ABC's s 49 arguments tend to overlap rather than being mutually exclusive.
64 The appellant further argues that the enactment of the PP Act, and the enactment of s 24 of the PID Act if it does exclude the operation of the PP Act, is an exercise of the legislative power bestowed upon Parliament by s 51(xxxvi) of the Constitution, rather than the exercise of any power bestowed by s 49 itself. Section 51(xxxvi) provides:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - …
…
(xxxvi) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:
…
65 The ABC contends to the contrary that the relevant power to legislate resides in s 49 itself, without any need to resort to s 51(xxxvi), but also contends that this difference does not matter for present purposes. The appellant's argument does not appear to sit well with the reasoning of Dixon CJ in R v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; 92 CLR 157 at 168-169, discussed below. However, it is not necessary to decide whether the appellant's argument is correct or not in order to decide this appeal and it is therefore preferable not to do so.
66 Until the enactment of the PP Act, parliamentary privilege was, by virtue of s 49 of the Constitution, provided by Art 9. Article 9 is extracted at [19] above.
67 It is not in dispute that the PP Act was a declaration of the powers, privileges and immunities of the Senate and the House of Representatives pursuant to s 49. That overt declaration, and enactment, by statute, was a response to a criminal prosecution in which cross-examination of prosecution witnesses on evidence they had given in an earlier Senate Select Committee proceeding had been permitted, over the objection of the President of the Senate: see the discussion of this history by French J, then a member of this Court, in Crane v Gething [2000] FCA 45; 97 FCR 9 at [40]. After noting the long title of the PP Act and s 5, his Honour at [41] observed that it does not constitute an exhaustive code of parliamentary privilege. In relation to s 16, his Honour said that 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": [41].
68 No suggestion has been made by the appellant that s 24 of the PID Act effects any change to s 5 of the PP Act. Rather, it is contended that s 5 does not, or alternatively cannot validly, confine the means of changing the scope of parliamentary privilege to amendment of the PP Act in exclusion to all other means, because that would amount to an impermissible entrenchment of that Act. The ABC only relies upon s 5 as a further indication in support of its alternative argument, if it be needed, that the Parliament intended any changes to parliamentary privilege be by clear words or necessary implication.
69 Section 5 of the PP Act is not needed at all for the ABC's primary argument that s 24 of the PID Act does not meet the imperative in s 49 of the Constitution of being a declaration. In all the circumstances, resorting to s 5 does not assist in relation to the second issue either, because it is not necessary if the ABC's argument otherwise prevails, and will not remedy the situation if that argument does not prevail. It follows that s 5 of the PP Act does not need to be considered further.
70 In relation to the use of the word "enacted" in s 16(1) of the PP Act, in the phrase "declared and enacted", the ABC suggests that the reference to "enacted" may have been to make it clear that s 16 was supported not just by s 49 of the Constitution, but perhaps, if necessary, also by s 51(xxxvi) ("matters in respect of which this Constitution makes provision") and by s 51(xxxix) ("matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof"). That kind of reasoning is adverted to in Fitzpatrick and Browne at 168-169, discussed at [88]-[91] below. By way of example, the ABC points out that s 16(5) of the PP Act is not just a declaration of privileges, but an enactment of what does not constitute a breach, such as the use of Hansard (or, it may be added, other authorised publications) to construe an enactment. This explanation for the reference to "enacted" in s 16(1) is logical, but again does not need to be decided. It is, however, consistent with s 16 constituting both an express declaration for the purposes of articulating the powers, privileges and immunities, and as well an ordinary enactment in the exercise of legislative powers in relation to matters that do not fall directly within s 49 of the Constitution.
71 The ABC submits that the Parliament can only displace the operation of s 16(3) by making a further declaration for the purposes of s 49 of the Constitution, while accepting that this can be achieved by a provision which is substantively to that effect, rather than necessarily having to be express, such as by the use of "declared" or "declaration". The ABC contends that the minimum requirement is a positive, explicit or formal statement, citing the Macquarie Online Dictionary definition of "declaration". This requirement is said to be supported by the subject matter and purpose of s 49 of the Constitution, with its effect being that Art 9 singularly governed the privileges of the Parliament until the PP Act and in particular s 16 was enacted.
72 The ABC draws a contrast between the use of the word "declared" in the phrase "shall be such as are declared by the Parliament" in s 49 and the use of the phrase "may make rules and orders" in s 50 of the Constitution, describing this as a strong contextual indicator that the effect of s 49 is that a statute made pursuant to s 49 is distinct from an ordinary statute, made, for example, under s 51 and from the rules and orders referred to in s 50.
73 Particular reliance is placed by the ABC on the importance of parliamentary privilege in the system of representative democracy, and in particular the protection of freedom of speech in Parliament and its committees. Thus, it is argued that it is fitting that Parliament should only be able to modify the operation of Art 9 in the first instance, and subsequently to modify privileges that have been declared in accordance with s 49, in a reasonably clear fashion, with nothing less than express words or clear intention being enough.
74 The ABC therefore contends that s 24 of the PID Act is not sufficient to amount to a declaration for the purposes of s 49. That is argued to be especially so because neither s 24 of the PID Act, nor the provisions to which it refers, ss 10 and 14 to 16 of that Act, make any reference to parliamentary privilege, nor to anything to do with either House, or of their members or committees. Nor do they purport to regulate the adducing of evidence or the making of statements, submissions or comments at all, let alone concerning proceedings in Parliament, directly or indirectly.
75 Further, the ABC submits, no support is to be gleaned from any of the extrinsic materials for the enactment of s 24 of the PID Act, or any intention for it to affect parliamentary privilege. This contrasts with such materials for the enactment of s 37(3) of the Auditor-General Act 1997 (Cth), which provides that the Auditor-General cannot be required and is not permitted to disclose certain information to either House, a member, a committee or a joint committee, which is clearly enough directed to the subject matter of s 16(2) of the PP Act. The Explanatory Memorandum to the Auditor-General Bill 1996 (Cth) at [71] confirmed that the effect of s 37(3) was a declaration for the purposes of s 49 of the Constitution.
76 In the alternative, even if something less than what is in substance a declaration will suffice to displace s 16(3), the ABC argues that clear words or necessary intendment falling short of being in substance a declaration is still required, which is wholly absent from s 24 of the PID Act. That is said to be because, contrary to the appellant's argument, s 16 of the PP Act is not an ordinary statutory provision, by reason of the fundamental role of parliamentary privilege to the system of representative democracy, reflected in s 49 of the Constitution. Section 49, unlike s 51, is not expressed simply as a power to make laws, but rather prescribes what the privileges of the Parliament are, being such as are declared by Parliament. The ABC argues that this distinction gives content to that for which s 49 provides.
77 The key authorities upon which the ABC relies do not concern the PP Act, with Hammond predating it, and Criminal Justice Commission v Parliamentary Criminal Justice Commission [2001] QCA 218; [2002] 2 Qd R 8 (CJC) concerning the Queensland Constitution and related legislation. However, each have something useful to say on the topic more generally as a point of principle, or by sufficiently close analogy, despite the appellant's submissions to the contrary.
78 In Hammond at 200, Murphy J rejected the Commonwealth's proposition that there was no privilege under the Royal Commissions Act 1902 (Cth), including privilege against self-incrimination, except where expressly provided, noting that it was accepted by the Commonwealth that this argument necessarily entailed a contention that all other privileges were overridden by that Act, including the privileges of Parliament. His Honour said:
The privileges of Parliament are jealously preserved and rightly so. Parliament will not be held to have diminished any of its privileges unless it has done so by unmistakable language. It has not done so in the Royal Commissions Act 1902, nor has it abridged the privilege against self-incrimination.
79 As to CJC, s 40A of the Constitution Act 1867 (Qld) provided that unless and until otherwise defined, the Queensland Legislative Assembly had all the powers, privileges and immunities of the House of Commons, which is comparable to s 49 of the Constitution. Section 3 of the Parliamentary Papers Act 1992 (Qld), which expressly applied to the Queensland Parliament for the purposes of Art 9, gave the meaning of "proceedings in Parliament". One of the arguments advanced in CJC was that s 118ZA(1) of the Criminal Justice Act 1989 (Qld) manifested an intention to "deprive the proceedings and report of the Parliamentary Criminal Justice Commissioner of the privileges and immunities conferred by the Bill of Rights and the Parliamentary Papers Act 1992, and to confine the Commissioner's protection to that provided by s 118ZA(1)". This was said to view the protection provided by s 118ZA as an exhaustive code of the privileges and immunities of the Commissioner and thereby an implied repeal of both parts of the Bill of Rights and the Parliamentary Papers Act. In rejecting that argument in CJC, McPherson JA, with whom Williams JA agreed, referred at [26] to "the general interpretive rule that express words (or, as would probably now be said, unmistakable and unambiguous language) are required to abrogate a parliamentary privilege". A similar statement of principle was made by Rowland J, one of the judges of appeal in Aboriginal Legal Service of Western Australia v Western Australia (1993) 9 WAR 297 (ALS) at 304, a case involving the statutory application of Art 9 in Western Australia.
80 The appellant does not advance any compelling reason why the statements of principle in Hammond, CJC and ALS are not generally applicable in considering what is required to effect limitations or changes to a fundamental right at the centre of parliamentary democracy, which, although originally sourced in statute in the Bill of Rights, have been given the force of s 49 of the Constitution, with the deliberate requirement that they be "such as are declared by the Parliament". There is no sound reason advanced by the appellant for such important rights being given less protection from alteration by legislation that does not clearly articulate an intention to do so, at least by meeting the stipulated level of being declared, than the great common law rights of legal professional privilege, the right to silence, and privilege against self-incrimination, invoking the cases cited by the primary judge at PJ [109] of Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437 and 446 and X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at [86]-[87]. As the ABC points out, although sourced in statute, parliamentary privilege is so long standing and of such significance, it has the same fundamental character as the abovementioned common law rights, so that it should not be easily changed without the legislature in some way turning its mind to what it is doing.
81 The ABC also argues that the steps required to dislodge or vary the application of parliamentary privilege provided for by the Parliament are no less than the steps required to implement it in the first place, in place of the operation of the second part of s 49 of the Constitution. As the implementation required a declaration, in substance, or alternatively sufficiently clear terms, exclusion or variation should, on that argument, require no less. The ABC's case is that the clear intent of s 16 of the PP Act was to confirm and extend the operation of Art 9, rather than diluting it to allow for easier displacement, as the appellant suggests. As such, the ABC argues that the Court should not lightly conclude that such a significant change may be achieved by such indirect and global language as "despite any provision of a law of the Commonwealth" without differentiation, falling well short of the ordinary concept of a declaration which does at a minimum require such differentiation.
82 Subject to the refinements below, the thrust of the ABC's submissions should be accepted instead of those advanced by the appellant, which are summarised as follows.
83 The appellant submits, by reference to constitutional history, that a declaration is nothing more than an ordinary enactment, such that the phrase "declared and enacted" in s 16(1) is but the expression of a single concept by two connected words (a "hendiadys" as it is put). This submission addresses only s 16 itself, and does not properly grapple with the express terms of s 49 of the Constitution, to which s 16 of the PP Act must be subordinate. That is so even if the legislative power being exercised is that in s 51(xxxvi) in relation to the matter that s 49 makes provision, rather than s 49 directly. There is no licence given by s 49 to disregard the express and clearly deliberate requirement that parliamentary privilege, "shall be such as … declared by the Parliament", implicitly not just at one point in time, but from time to time, and until so "declared", shall be that of the House of Commons, accepting that the required declaration must be by statute. As the ABC correctly submits, while a declaration by Parliament must be made by an Act, an Act does not necessarily in substance contain the requisite declaration.
84 The appellant's argument requires acceptance of the proposition that the use of the word "declared" and the absence of any lesser or different description, such as "make rules and orders" in s 50 or "make laws" in s 51, is to be given no real or effective weight or significance. The appellant argues that the Constitutional Convention discussions in the 1890s about the use of the word "declared", in substitution for the word "defined", did not suggest that a declaration means something more than a bare enactment. That argument cannot be accepted. For the reasons below, s 49's ongoing role in expressly providing that the privileges of its houses, members and committees "shall be such as are declared by the Parliament" must be given real work to do.
85 The appellant relies upon the conclusion reached by the Judicial Committee of the Privy Council in an appeal from the Supreme Court for the Colony of Victoria in Dill v Murphy (1864) 1 Moo PC (NS) 487; 15 ER 784 at 794 [514]. The Privy Council was considering whether the Victorian Colonial Parliament, by "declaring" that that the privileges, immunities, and powers of the Victorian Legislative Council and Legislative Assembly and their members should be those of the House of Commons, had failed effectively to exercise the power in s 35 of the Colonial Act of 1854, set out in the schedule to 18 & 19 Vict. c. 55 (Imperial Act of Parliament) 1854 (Imp), to "define" those privileges, immunities, and powers. Lord Cranworth in pronouncing their Lordships' judgment that the power had been duly exercised, said that the word "define" was equivalent to the word "declare". There are two answers in response to that argument which are advanced by the ABC and should be accepted. First, the equivalence drawn between "define" and "declare" in a quite different context should be approached with caution; and secondly, the Constitutional Convention debates, which resulted in the word "define" being deliberately replaced by "declare" must be taken to be a deliberate choice, made for a purpose.
86 Further and in any event, Dill v Murphy, rather than assisting the appellant, tends to do the opposite. In context, the effect of the decision was that the Victorian Colonial Parliament by making a declaration by explicit reference to the privileges, immunities and powers of the House of Commons was pointing directly to the subject matter and source of what was declared and was found thereby to be have been defined as required. It is authority for the proposition that identifying what was being done by a clear reference to the source of the rights being enacted was sufficient, such that more detail than that was not required. Thus, it was not necessary, as contended by the appellants in Dill v Murphy, to specify the content of those privileges, immunities and powers, because the direct reference to their source by declaration was a sufficient form of definition. The finding was that the reference to that subject matter and source, akin to the second part of s 49 of the Constitution, was enough. It is clear enough that this was not just enough, but was necessary as well, being a minimum in substance. Yet the appellant's argument entails an acceptance that, contrary to what happened in Dill v Murphy, not even that much was needed.
87 The appellant also submits that, properly understood, s 16(1) does not support any special rule of construction or presumption requiring clear words to override it, and is therefore subject to ordinary principles of statutory construction, once again relying upon s 16 itself. The appellant contends that what matters is what in substance has been achieved by s 24, not the form in which it has been done, citing Fairfax v Commissioner of Taxation (1965) 114 CLR 1 per Kitto J at 7 in support of the principle of focusing on substance rather than form when it comes to assessing constitutional validity. It may be accepted that the concept of a declaration is one of substance rather than mere form. However, the appellant's argument again focuses on the terms of s 16(1) to the exclusion of the express constitutional mandate in s 49, and begs the question as to what constitutes the substance of a declaration, which is the relevant issue of interpretation.
88 A further problem with the appellant's argument is that it does not sit well with the discussion about s 49 in Fitzpatrick and Browne, a habeas corpus case, even though that is a case that the appellant also relies upon. The High Court, comprising all seven justices, was dealing with an argument that the words in s 49 of the Constitution should be given less operation than their terms seemed to require, albeit as to the second part of s 49 dealing with the powers, privileges and immunities of the House of Commons, which were in turn sourced in Art 9 of the Bill of Rights. This argument was advanced in order to persuade the High Court that two warrants issued against two individuals for breach of privilege issued by the Speaker of the House of Representatives were invalid and therefore did not authorise detention for contempt by reason of breach of the privilege. The suggestion that s 49 should not be given effect according to its terms was rejected. The ultimate conclusion reached was that it was for the Parliament, manifested in this case via the Speaker, to judge what was contempt for breach of privilege and the ground of the commitment to custody. The Speaker's warrants were issued pursuant to resolutions of the House of Representatives and on their face were consistent with a breach for an acknowledged privilege being conclusive, despite being expressed in general terms. That position under English law was found to be reflected in and authorised by s 49, and contrary arguments were rejected: see pp 164-165ff.
89 Dixon CJ gave an ex tempore judgment for the Court in Fitzpatrick and Browne, dismissing the application for writs of habeas corpus. The Chief Justice said that the answer to the proposition advanced as to invalidity lay in the plain words of s 49 itself, which were incapable of a restricted meaning unless imperatively demanded as something to be placed artificially upon them by the more general considerations supplied by the Constitution itself: see p 165. His Honour pointed out that there was no legislation which purported to be a declaration of the powers, privileges and immunities of either House, stating comprehensively what they desired them to be: p 167. Two lesser statutes did not meet that description: pp 167-168. It followed that the latter part of s 49 continued to operate so as to transfer to the House the full powers, privileges and immunities of the House of Commons: pp 163, 164.
90 The effect of Dixon CJ's judgment at p 167 also makes it clear that it is only the latter part of s 49 that is transitional, providing that until such time as the Parliament declares the powers, privileges and immunities of the two Houses, they shall be those of the House of Commons. Once that declaration has taken place, there is no reason why the earlier part of s 49 ceases to be operative according to its express terms and giving full effect to the language used. Any changes to parliamentary privilege that are made by amending the PP Act will mostly likely meet the requirements in s 49 for the exercise of the power, given the long title and the reference to "declared" in s 16(1). The appellant suggested that the ABC was trying to change the meaning of s 49 without compliance with s 128 of the Constitution. However, by attempting to put to one side the deliberate and considered use of the word "declared" in the phrase "shall be such as are declared by the Parliament", it is the appellant, and not the ABC, who is departing from the language of s 49, by effectively suggesting that the word is devoid of any particular meaning and has no work to do.
91 Fitzpatrick and Browne supports the interpretation that the first part of s 49 continues to operate according to its terms after there has been a declaration by the enactment of the PP Act, while not necessarily having anything to say about collateral matters such as publication and broadcasting which may be supported by other heads of power, either with, or independently of, s 49. That does not mean that the word "declaration" or the word "declares" is required to effect a change to the scope or operation of parliamentary privilege itself, provided that is what is in substance taking place, but it does mean that there must be something expressly directed to the operation of parliamentary privilege before any change can be effected to the operation of s 16(3). Without that taking place, there is not in substance the necessary declaration.
92 As noted above, in the case of an amendment to the PP Act, including to s 16, nothing more express would be needed, because the language of amendment would necessarily have that degree of clarity to amount in substance to a declaration, noting that this is reflected in the long title, read with s 5, as well as s 16(1). But s 49 itself stands in the way of any change to the scope of parliamentary privilege by other legislation which does not contain express words in some unmistakable way so as to meet the express constitutional mandate. In other words, contrary to the appellant's submissions, a declaration in substance, supported by s 49 of the Constitution, is required to change the operation of s 16(3) of the PP Act via another statute.