Carrigan v Honourable Senator Michaelia Cash

Ms Carrigan's claim in these proceedings 31 Ms Carrigan claims relief in various forms: an order in the nature of certiorari quashing the Heerey Report "so far as [it] has adverse continuing operative effect on the rights, entitlements and interests of the Applicant"; an order in the nature of prohibition preventing the Minister from taking further steps "to publish, implement or rely upon" the Heerey Report "so far as the Applicant's rights, entitlements and interests are or may be adversely affected by such further steps" or an injunction restraining the first and third Respondents from publishing the Heerey Report further; alternatively, declarations that she was denied procedural fairness by each of the Respondents and that the Heerey Report "is void and … of no effect"; and a consequential order directing the Minister "to correct the official records of [the Commonwealth] (including the records of the Parliament)". 32 Ms Carrigan's Statement of Claim in support of these claims asserts denials of procedural fairness by Mr Heerey in a number of respects: in not making inquiries of her in relation to Item 1 in the terms of reference; in not giving her the opportunity to comment on Vice President Lawler's responses to Ross P dated 8 April 2015 and to himself dated 27 January 2016; and by making conclusions, findings or observations concerning her in the Heerey Report on which she had not been given the opportunity to comment. In addition, Ms Carrigan asserts that Mr Heerey had exceeded his terms of reference by inquiring into her own conduct, rather than the alleged misconduct of Vice President Lawler. 33 In relation to the Minister and the Commonwealth, Ms Carrigan alleges a denial of procedural fairness by both in that she was not given the opportunity to respond to Vice President Lawler's responses of 8 April 2015 to Ross P and to Mr Heerey dated 27 January 2016; by the Minister in tabling the redacted Heerey Report in the Senate without giving her the opportunity to comment on it; and by both Respondents in causing the redacted report to be published. 34 It is neither necessary nor appropriate for the purposes of determination of the present applications to comment on the merit or otherwise of these allegations. However, it may be fair to note that Ms Carrigan's Statement of Claim includes a plea, at [15], that she had given Mr Heerey "a detailed written submission on each of the Terms of Reference". 35 Ms Carrigan prefaced her submissions with a contention that s 16(2) should be construed narrowly, having regard to the potential for it to be applied so as to "immunise" executive action from judicial review. In this respect, Ms Carrigan submitted: If the Commonwealth's position were correct then any inquiry established solely under executive authority would be immunised from judicial review merely because at some future point the subject of the inquiry might or could relate in some unspecified and general way to proceedings in Parliament. Such a position would be fundamentally inconsistent with the citizen's right to entrenched or other judicial review. 36 On my assessment, the construction of s 16 is not at the heart of the issues for the Court's present determination. Those issues are more factual in nature. 37 Further, and in any event, it is established that s 16 should be interpreted according to its tenor and not read down or given a restricted meaning: Theophanous at [66]. 38 Some of Ms Carrigan's submissions seemed to have, as an implicit premise, the assumption that Mr Heerey was, at relevant times, an agent of the Minister or was himself exercising the executive power of the Commonwealth. Pleas to that effect are contained in [11] and [12] of Ms Carrigan's Statement of Claim. I doubt that either is a correct characterisation of Mr Heerey's position in carrying out the inquiry and report. There is no reasonable basis upon which it could be concluded that Mr Heerey was exercising executive power and, while the Court does not have the contract pursuant to which Mr Heerey was retained to provide his report, it is difficult to discern any indications suggesting that a relationship of principal and agent was created.

The strike out/summary judgment application 39 The Respondents contend that the matters which Ms Carrigan wishes to agitate fall within the opening words of s 16(2) of the PP Act, namely, "acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House". In addition, they contend that Ms Carrigan wishes to tender material falling within subparas (b) and (c). 40 The Respondents seek the striking out of the whole of the Statement of Claim pursuant to r 16.21(1)(e) of the Federal Court Rules 2011 (Cth) (the FCR) on the basis that, by reason of s 16(3) of the PP Act, it fails to disclose a reasonable cause of action. The Respondents' summary judgment application is made under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01(1)(a) of the FCR, again on the basis that, by reason of s 16(3) Ms Carrigan has no reasonable prospect of successfully prosecuting the action. 41 Thus, the issue on the strike out and summary judgment application is whether the impugned conduct of Mr Heerey and the Minister constituted "acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House [of the Australian Parliament]" (a parliamentary purpose). In relation to the Heerey Report, the issue is whether it was prepared "for purposes of or incidental to the transacting of [the business of a House of the Australian Parliament]" (s 16(2)(c)). 42 Ms Carrigan emphasised, appropriately, the cautious approach which this Court takes on applications pursuant to s 31A of the FCA Act, particularly in cases involving important questions of public and constitutional law: Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24]-[27]. 43 The Respondents accepted that the power to strike out a pleading should be exercised with caution; that the power is concerned with the allegations actually pleaded and their availability as a matter of law; and that it is not concerned with the strength of an applicant's case: Lambert v State of Victoria [2014] FCA 1064 at [6]-[7]. They referred to Jobbins v Capel Court Corporation Limited (1989) 25 FCR 226 as a case in which a cause of action the pursuit of which was barred by statute had been struck out, and to Prebble as a case in which pleadings which would result in an infringement of Parliamentary privilege had been struck out.

Mr Heerey's purpose 44 The question of whether words were spoken, or acts were done, for a specified purpose is a question of fact. Prima facie, it requires an assessment of the subjective purpose of the actor in question: O'Chee v Rowley (1997) 150 ALR 199 at 208. However, as with so many areas of the law, the ascertainment of that purpose is informed by an objective consideration of the circumstances, that is, by consideration of those matters which stand independently of any statement by the actor of his or her purpose, especially statements made in retrospect. 45 The Respondents accepted, appropriately, that the requisite parliamentary purpose is not established by the circumstance that a document prepared for a non-parliamentary purpose later comes to be used in Parliament: Szwarcbord v Gallop [2002] ACTSC 28; (2002) 167 FLR 262 at [21]-[22]. Further, s 16 protects only "proceedings in Parliament" and not conduct of the Executive or action taken under executive authority. As Hodgson JA observed in Stewart v Ronalds [2009] NSWCA 277; (2009) 76 NSWLR 99 at [121], the tabling in Parliament of a report obtained by the Executive for its purposes does not necessarily mean that the report, so obtained, is a "proceeding in Parliament" for the purposes of s 16(2) of the PP Act. 46 As noted, in relation to Mr Heerey, the issue is whether, at the time he prepared his report, he did so for purposes of or incidental to the transacting of the business of either House of Parliament: O'Chee v Rowley at 208. It is Mr Heerey's purpose in preparing the report which is to be considered. The Minister's purpose in appointing Mr Heerey to inquire and report may inform the assessment of his purpose but is not conclusive of it as, at least in principle, her purpose may not have been entirely coincident with that of Mr Heerey. 47 The determination of Mr Heerey's purpose must be made without any direct evidence from him because, in accordance with the usual practice, he has filed a submitting notice. 48 Ms Carrigan made a number of alternative but related submissions concerning Mr Heerey's purpose: (a) Mr Heerey had not been appointed by a resolution of either House of Parliament, let alone in the course of consideration by either House as to whether to make a request to the Governor-General for the removal of Vice President Lawler; (b) the Minister's letter of 19 October 2015 to Mr Heerey did not mention the potential for his report to be tabled in the Parliament (thus distinguishing the circumstances of this case from those considered in Stewart v Ronalds); (c) that Mr Heerey had been requested to provide his report to the Minister, and not to either House of Parliament, and Mr Heerey had in fact addressed his report to the Minister; (d) neither the President of the Senate nor the Speaker of the House of Representatives had provided a certificate under s 17 of the PP Act. Section 17 provides that such a certificate stating, amongst other things, that a particular document was prepared for submission to that House of Parliament is evidence of the matters contained in it; (e) the Minister had not tabled Mr Heerey's full report in the Senate but only a redacted version; (f) a long period lapsed between the Minister receiving the report and her tabling it in the Senate. 49 Ms Carrigan's submission was that these matters considered in combination, pointed to Mr Heerey having been appointed under the executive authority derived from ss 61 and 64 of the Constitution. She likened Mr Heerey's appointment to the appointment by the Executive of a Royal Commission or of a Committee of Inquiry. Ms Carrigan submitted that the evidence did not indicate any more than that of a Minister with relevant portfolio responsibility seeking a report by which, as Minister, to determine how to manage issues of public concern. 50 Most of the features of the evidence on which Ms Carrigan relied for this submission concerned the Minister's conduct and purpose. But as already noted it is Mr Heerey's purpose which is pertinent as he was the one who prepared the report. 51 Inferences as to Mr Heerey's purpose can be drawn from two documents in particular: the letter by which the Minister appointed him to make the inquiry (including the attached terms of reference) and the report which Mr Heerey provided in response. In addition, inferences can be drawn from the circumstances more generally in which Mr Heerey was appointed and which existed while he was carrying out his inquiry and report. 52 I set out earlier the relevant terms of the Minister's letter of appointment of Mr Heerey. As can be seen, the Minister made it plain in that letter that she was doing so in her capacity as Minister with portfolio responsibility for the FWC. That may provide some support for Ms Carrigan's submission. 53 However, it is also pertinent that the Minister made it very apparent to Mr Heerey that his report was sought in relation to action which may lead to the very significant step of the removal of the Vice President from office. This could happen only by action by the Parliament (and not the Minister) and later action by the Governor-General. The Minister first informed Mr Heerey of the terms and conditions of Vice President Lawler's appointment to the FWC. Then, by Item 5 in the terms of reference, Mr Heerey was asked to inquire into and report on: Whether there is a reasonable basis for both Houses of Parliament to consider requesting the Governor-General to remove Vice President Lawler from the Fair Work Commission on the grounds of proved misbehaviour or incapacity. 54 The terms of reference, considered as a whole, make it apparent that Item 5 was to be addressed by Mr Heerey having regard to his assessment, amongst other things, of the subject matter of Items 1, 3 and 4, each of which concerned, to at least some extent, the conduct of Vice President Lawler. 55 Neither the Minister's letter nor the terms of reference referred expressly to s 82 of the WR Act. However, it is reasonable to infer, and I do infer, that Item 5 in the terms of reference was drafted having regard to the terms of s 82 of the WR Act. I infer further that Mr Heerey would have understood that that was so. A number of matters support that inference. These include, the terms of Item 5 itself, the Minister's reference to the status of Vice President Lawler, the Minister's statement that the terms and conditions of employment of the Vice President were governed by the WR Act, the circumstance that Mr Heerey (with the status of a former Judge of this Court) was being appointed to inquire into complaints concerning the Vice President, as well as the matters which Mr Heerey did in fact address in his report in response to the terms of reference. 56 The content of the Heerey Report is, in my opinion, particularly revelatory of Mr Heerey's purpose in preparing and presenting the report. In saying that, I note again that I have had regard to the redacted report only. 57 Mr Heerey's report was entitled "Report of Inquiry into Complaints about the Honourable Vice President Michael Lawler of the Fair Work Commission and Related Matters". He recorded in [1] that he had been appointed by the Minister "to inquire into and report on complaints about the Honourable Michael Lawler, Vice President of the Commission, and related issues". Mr Heerey then set out his terms of reference. Later, in [72] he made the following statement as to his understanding of his task: My terms of reference do not require me to determine whether or not Vice President Lawler is guilty of misbehaviour or suffers from incapacity. Rather, my opinion is sought as to whether there is "a reasonable basis" for Parliament to "consider" requesting the Governor-General to remove him on such grounds. 58 As can be seen, Mr Heerey was careful to adhere to the terms of his appointment and not to express an opinion on the ultimate matter for which the Parliament would have to make a decision. However, having regard to Ms Carrigan's contention, it is pertinent that Mr Heerey did not state his task as being to advise the Minister as to whether there was a reasonable basis on which she could decide whether or not to take the removal of the Vice President to the Parliament. Instead, he referred to the consideration of the issue by the Parliament itself. 59 In paras [19]-[21], Mr Heerey noted matters concerning Vice President Lawler's office: that he had been appointed a Presidential Member of the Australian Industrial Relations Commission (AIRC) under the WR Act 1996 (Cth); that as such he had the rank, status and precedence of a Judge of this Court; that Vice President Lawler was at the time a Deputy President of the FWC; and that, on becoming a member of the FWC, his terms and conditions as a Presidential Member of the AIRC had been preserved by the Transitional Act (Sch 18, Item 2(1)(a)). Significantly for present purposes, Mr Heerey noted in [21] that s 82 of the WR Act provided that Vice President Lawler could be removed from office by the Governor-General only "on an address praying for removal on the grounds of proved misbehaviour or incapacity being presented to the Governor-General by both Houses of Parliament in the same session". 60 In Section 3 of his Report, Mr Heerey set out a number of the principles bearing upon the assessment of "misbehaviour" and "incapacity" in the context of provisions such as s 82. It is not necessary for present purposes to summarise Mr Heerey's statement of those principles. Mr Heerey also stated that he intended to apply by analogy the civil standard of the balance of probabilities taking into account the approach stated in Briginshaw v Briginshaw (1938) 60 CLR 336, that is, by having regard to the seriousness of the allegations made and the consequences of acceptance of those allegations. 61 The body of Mr Heerey's report, after an introductory section and a summary of conclusions, contains his consideration, seriatim, of each term of reference. In particular, Mr Heerey addressed and evaluated several aspects of Vice President Lawler's conduct, including his participation and statements in the Four Corners Program broadcast on 19 October 2015. Again, it is unnecessary for present purposes to set out Mr Heerey's evaluation of that conduct. It is Mr Heerey's conclusions with respect to the allegations of misconduct and Vice President Lawler's capacity which are pertinent. In respect of the issue of misconduct, Mr Heerey said: [370] In my opinion, there is a reasonable basis for both Houses of Parliament to consider requesting the Governor-General to remove Vice President Lawler from office on the grounds of proved misbehaviour. 62 Mr Heerey's evaluation of the materials bearing upon Vice President Lawler's capacity to fulfil his duties was almost entirely redacted. However, Mr Heerey's conclusion was: [380] In the light of Dr Pakula's report, a finding that there is a reasonable basis for both Houses to consider a request for removal on the ground of proved incapacity seems inevitable. 63 Each of these conclusions was expressed in terms of what the Parliament (and not the Minister) could consider. To my mind, this is suggestive of Mr Heerey preparing and providing his report for the consideration of the Parliament and not just the Minister. 64 As indicated earlier, a further bearing upon the assessment of Mr Heerey's purpose in preparing the report is the public interest in Vice President Lawler's conduct and, in turn, on Mr Heerey's anticipated report. These include the Minister's statements in connection with her appointment of Mr Heerey. It would be unrealistic to suppose that Mr Heerey was oblivious to these matters. 65 The Minister made a public announcement on 19 October 2015 of Mr Heerey's appointment, by a media release. In an Estimates Committee hearing three days later, the Minister stated her expectation that she would be tabling Mr Heerey's report in the Senate, subject to consideration of its contents when received: Senator Cameron: Minister, are you aware of whether the report will be made public? Senator Cash: That a will be a decision that we will take once I receive the report. Certainly, my understanding is that the findings of Mr Heerey will be made public by myself by timetabling (sic) in the Senate at an appropriate time. 66 In a later exchange on the same occasion, the Minister confirmed, in effect, her expectation that she would be tabling Mr Heerey's report: Senator O'Neill: A report is to be tabled after Justice Heerey's inquiry. Do we know what date that inquiry will run to? Senator Cash: Not at this stage. I have indicated to Mr Heerey that I would like him to report back to me before the end of the year. Senator O'Neill: So we do not know when the inquiry will be completed? Senator Cash: Not at this stage, no. 67 The Minister confirmed her intention to table the report in a letter to the Shadow Minister for Employment and Workplace Relations, Mr O'Connor, dated 2 November 2015, saying: I anticipate that Mr Heerey will report back to me by the end of the year. My intention is to table Mr Heerey's findings in the Senate at an appropriate time, after considering the report. 68 The Minister also informed Ms Carrigan on 29 November 2015 of her intention to table Mr Heerey's report: Once I receive Mr Heerey's report I intend to table it in Parliament at an appropriate time. 69 In my opinion, these matters warrant the conclusion that Mr Heerey provided his report with the knowledge and intention that it could, and in all probability would, be used by each House of Parliament in considering whether or not to make a recommendation to the Governor-General concerning the termination of Vice President Lawler's office as Vice President of the FWC. Further, Mr Heerey had no other purpose in preparing his report. These conclusions arise from the following matters in particular when considered in combination: (a) Vice President Lawler occupied an office from which he could be removed by the Governor-General only on an address from both Houses of the Australian Parliament praying for his removal on grounds of proved misbehaviour or incapacity; (b) Vice President Lawler's conduct had by the second half of 2015 attracted considerable public attention, including attention in the Senate and action to bring about his removal from office was contemplated; (c) Mr Heerey had been appointed to inquire into, and report on, aspects of Vice President Lawler's conduct and particularly as to whether there was a reasonable basis on which both Houses of Parliament could consider requesting the Governor-General to remove Vice President Lawler from his office in the FWC; (d) the person who appointed Mr Heerey was the Minister with the responsibility for the administration of the FW Act; (e) the Minister had stated publicly her intention to table Mr Heerey's report in the Parliament; (f) Mr Heerey did address the terms of reference and addressed specifically whether there were reasonable grounds upon which the Houses in the Australian Parliament could consider requesting the Governor-General to remove Vice President Lawler from his office; (g) the public interest concerning the matter and the Minister's statements made it almost inevitable that Mr Heerey's Report would be provided to, and used by, the Parliament; and (h) Mr Heerey can be taken to have known of these matters. 70 There is no indication that Mr Heerey prepared his report for a more confined purpose such as that for which Ms Carrigan contends, namely, simply to provide advice to the Minister for her consideration in relation to the issues raised by Vice President's Lawler's conduct more generally. 71 Accordingly, I conclude that the Heerey Report, when prepared and thereafter is a "proceeding in Parliament" for the purposes of s 16(2) of the PP Act.

The Minister's conduct 72 In relation to the Minister, I consider that the position is straightforward. The Minister received Mr Heerey's report on 15 February 2016. On 25 February 2016, the Minister told the Senate that she had received Mr Heerey's report and continued: I carefully considered the report and its potential implications. Before I provide further details to the Parliament, I believe that, in the interests of procedural fairness, it is appropriate that I first afford Vice President Lawler an opportunity to consider the report and provide me with a response. I have provided the report to Vice President Lawler and invited him to provide any response to me by Friday, 4 March. I will provide further information to the Senate, including any next steps the Government proposes to take, after this time. 73 As it happens, it was not necessary for the Minister to take further action as, on 3 March 2016, Vice President Lawler resigned from his office with immediate effect. Subsequently, on 15 March 2016, the Minister tabled a redacted version of Mr Heerey's report in the Senate. Plainly, the Minister's conduct in tabling the report was conduct "in the course of, or for the purposes of or incidental to, the transacting of the business of [the Senate]".

Conclusion on s 16(2) 74 I conclude therefore that the conduct of Mr Heerey in preparing and providing the Heerey Report and the conduct of the Minister which Ms Carrigan wishes to impugn in these proceedings are both within the description of "proceedings in Parliament" as that expression is defined in s 16(2) of the PP Act. So also was the action of the Respondents in causing the publication of the redacted report, after its tabling in the Senate.

The s 16(3) prohibition 75 The second question which arises on the strike out/summary judgment application is whether Ms Carrigan seeks to adduce evidence of the conduct of Mr Heerey and the Minister "by way of, or for the purpose" of a matter specified in s 16(3) of the PP Act. 76 The conclusion that Ms Carrigan has such a purpose is inevitable. She intends that the Court should draw inferences or conclusions concerning Mr Heerey's preparation of his report which would result in it being declared to be void and of no effect. Ms Carrigan intends that the Court should draw inferences or conclusions concerning the tabling of the Heerey Report by the Minister and, as noted earlier, seeks an order from the Court that the Minister correct the records of the Commonwealth and of the Parliament. Plainly, orders to this effect would infringe the principle of non-intervention. 77 Accordingly, the prohibition contained in s 16(3) of the PP Act is engaged. In fairness to Ms Carrigan, she recognised that, if the conduct of Mr Heerey and of the Minister which she wishes to impugn is within the term "proceedings in Parliament", this conclusion would follow.

Summary 78 For the reasons stated above, I consider that at this stage Ms Carrigan has no reasonable prospects of successfully prosecuting the action. She will not be able to adduce evidence of the matters upon which her claims depend. Summary judgment is appropriate. Had it been necessary to do so, I would also have struck out the impugned paragraphs in the Statement of Claim, but the summary dismissal of the action makes that unnecessary. 79 The order of the Court is that the action be dismissed. I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.