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) 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) 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) 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) 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) 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) 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.