4. The Court unanimously agreed that the appeal should be allowed. MacPherson JA found that Article 9 prevented "proceedings in Parliament from being hindered, impeded or impaired in a court ... [which included] the preparation of documents for the purposes of or incidental to the transacting of business of a House".[14] In describing the scope of Article 9, MacPherson JA said[15]:

[S]uch proceedings include all acts done for such purposes, together with any acts that are incidental to them. Bring documents into existence for such purposes; or, for those purposes, collecting, or assembling them; or coming into possession of them, are therefore capable of amounting to "proceedings in Parliament".

5. Moynihan J concurred with the reasons of MacPherson JA but agreed with Fitzpatrick J that the evidence was inadequate to determine the claims of privilege and agreed that the matter should be remitted for further affidavit evidence to be filed.[16]
6. Fitzgerald P considered that although Parliamentary privilege should be interpreted broadly, not every action of a Member of Parliament in the course of his or her duties is automatically privileged. His Honour said,

In my opinion, when regard is had to the documents for which privilege is claimed, such an unexplained assertion cannot be accepted at face value; ... While the phrase "... for purposes of or incidental to, the transacting of the business of a House ..." in sub-s. 16(2) of the Parliamentary Privileges Act is to be given a generous operation, they do not transform every action of a parliamentarian in the pursuit of his or her vocation into "proceedings in Parliament".[17] > > (Footnotes Omitted)

7. The Solicitor-General observed that it may be gleaned from Rowley v O'Chee that the privilege does not inhere in a document created outside of Parliamentary proceedings, until there has been act of appropriation to create the necessary nexus with Parliamentary proceedings. In Rowley v O'Chee, the privilege attached when the Senator commenced gathering the documents for the purpose of Parliamentary proceedings. The Solicitor-General submitted that the privilege may attach to a document independently of the intentions of Its author.[18] In Crime and Corruption Commission v Carne,[19] the Court found that the privilege did not attach to a document created in connection with a Parliamentary proceeding because Parliament had not asked for it. The Solicitor-General argued that whereas in Carne, the document had not yet been appropriated by anyone for a Parliamentary purpose, the briefing notes in the present proceedings had been appropriated by the Chief Executive prior to his attendance before the Committee.
8. The Solicitor-General submitted that McPherson JA's reasoning in Rowley v O'Chee discloses that the privilege may be infringed in either of two circumstances, and characterised these as two "strands" of the privilege. The first circumstance arises when a use to which the document is to be put outside of Parliament is a use that impeaches or questions the content of the document. Merely referencing the document outside of Parliament will not constitute an infringement, but its use may constitute an infringement where such use amounts to impeaching or questioning the content.
9. The Solicitor-General observed that in Rowley v O'Chee, the focus on the use to which the document will be put outside of Parliament gave rise to McPherson JA's statement that for the Court to compel production for the purpose of the defamation action would deter the Senator and other parliamentarians from "assembling documentary information for future debates and questions in the House".[20]
10. The Solicitor-General submitted that the infringement of the privilege may also occur merely by the act of disclosing or producing the material, without any consideration of the use to which the document will be put. This invokes a meaning of "impeach" that was in use at the time that article 9 was drafted. MacPherson JA concluded that mere disclosure of privileged material may effect a hindering or impeding of Parliamentary proceedings, in a sense that is captured by the term "impeach" as it was used when article 9 was enacted.
11. The applicant submitted that this second circumstance that is relevant to consideration of briefing notes 5 and 6. The applicant submitted the infringement was liable to occur on a public disclosure of the documents and therefore, they are exempt.
12. The Solicitor-General submitted that the reasoning in Rowley v O'Chee had been applied on several occasions, including by the Federal Court in Sportsbet Pty Limited v State of New South Wales (No 3) ("SportsBet (No 3)").[21] In that decision, the documents were briefing notes by departmental officers for a Minister that were prepared in connection with a Bill that was to be put before the Parliament. The Court was required to consider the doctrine of Parliamentary privilege under New South Wales legislation which adopted the doctrine from s 6 of the Imperial Acts Application Act 1969 (NSW), which in turn adopted article 9 of the Bill of Rights 1688 (Imp).
13. Jagot J found that documents that had been prepared for the use of a Minister in Parliament attracted the privilege. Documents between members of executive government concerning the Bill did not, however, attract the privilege. Her Honour said,[22]

As to the second category of documents which the state identified in a table, I accept that one document as identified above (Ex CM1, Vol 2, 56) should be inferred to have been created for the purpose of a minister conducting business in parliament. It is thus protected by parliamentary privilege. Consistent with the approach in Rowley, I consider that the privilege protects the document from disclosure and not mere use. The purpose for which the other document in this category (Ex CM1, Vol 2, 64) was created is less clear from its face. Frank Marzic, the manager of racing policy in the Office of Liquor, Gaming and Racing (the OLGR), attested that he prepared this document for the minister's use in parliament. This is confirmed by the last attachment, described as House Notes. Accordingly, I infer that the whole was created for a minister's use in parliament. It too is thus protected by the privilege.

14. In relation to another briefing note, not established to have been prepared for use in Parliament, her Honour was not satisfied that the privilege could be said to attach.
15. Sportsbet Pty Ltd v Harness Racing Victoria (No 4)[23] affirmed the approach taken in SportsBet (No 3) and applied it to the privilege as it is enjoyed by the Victorian Parliament. Mansfield J said,[24]

There is also authority to indicate that the term "proceedings in Parliament" extends to proceedings in parliamentary committees: see eg R v Murphy (1986) 5 NSWLR 18 at 25 per Hunt J; Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269 at [387]- [389] per Bleby, Besanko and Sulan JJ. The identification of what constitutes proceedings in Parliament is a practical one, rather than one driven by artificial and narrow lines: R v Chaytor [2010] UKSC 52 at [47] per Lord Phillips. In Sportsbet Pty Ltd v New South Wales (No 3) [2009] FCA 1283; (2009) 262 ALR 27 (Sportsbet (No 3)) at [19] and [21] adopted such an approach. > > The extent of protection of documents which fall within the description of proceedings in Parliament is explained in Rowley v O'Chee [2001] 1 Qd R 207 at 222-223 per McPherson JA (with whom Moynihan JA agreed). The privilege protects the documents from disclosure and not merely from use: see per Jagot J in Sportsbet (No 3) at [19] and [21]. > > I have considered the description of each of the documents listed above. Variously, they concern either the proceeding of a Joint Committee of the Victorian Parliament directly or by reference to what there took place, or are notes prepared for the Minister for Racing for use in that Parliament. > > In my view, they are so closely connected to the business of the Victorian Parliament so as to fall within the aegis of parliamentary privilege.

16. The Solicitor-General also relied on the application of the doctrine in In the matter of Opel Networks Pty Ltd (In Liq)[25] in support of a construction of 'impeach' that is broader than its modern usage, and in support of the "necessary truth" of the proposition that members of the Executive would be impeded in their support of ministers if the privilege did not attach to the documents prepared by the executive for ministers. Austin J referred to Rowley v O'Chee and said,[26]

There is no specific evidence before me that anyone would be "impeached" (in the sense of impaired or deterred or prejudiced) by producing document 4, nor (apart from the question of legal professional privilege) document 1. Nevertheless, and not without hesitation, I have reached the conclusion that compulsory production of these documents would "impeach" (as explained in Rowley v O'Chee) "proceedings in Parliament" (as extensively defined in s 16(2)(c) of the Parliamentary Privileges Act (Cth)). It seems to me necessarily true, and not dependent upon the evidence of the particular case, that if briefings and draft briefings to Parliamentarians for Question Time and other Parliamentary debate are amenable to subpoenas and other orders for production, the Commonwealth officers whose task it is to prepare those documents will be impeded in their preparation, by the knowledge that the documents may be used in legal proceedings and for investigatory purposes that might well affect the quality of information available to Parliament. To take a step that would have that consequence would, I think, derogate from the force of the Bill of Rights and run contrary to the historical justification for that legislation, so ably sketched by McPherson JA (and see Mees v Roads Corporation [2003] FCA 306; (2003) 128 FCR 418 at 442 [75]-[79] per Gray J).

17. The Solicitor-General also relied on the South Australian authority of CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd v South Australia[27] in which Kourakis CJ considered the operation of the privilege in the context of a claim for production of documents in arbitral proceedings. The Chief Justice found Parliamentary privilege to attach to documents that were prepared as briefing notes for a chief executive to take to the Budget and Finance Committee of Parliament.[28] In upholding the claim of privilege, Kourakis CJ accepted the evidence of a senior Government adviser and said,[29]

A parliamentary briefing note is a relatively short document, usually in no more than a few pages, following a standard template which provides a summary of key information to assist Ministers in the conduct of parliamentary proceedings. They often took the form of speaking notes.... > > The preparation of notes for a Minister to participate in parliamentary debate and answer questions which might be raised either directly or in the course of the debate falls well within the core purpose of parliamentary privilege and the privileges is essential for the purposes of ensuring free debate in Parliament and, in particular, for the purpose of ministerial accountability to Parliament.

18. The Solicitor-General invited the Tribunal to accept that the disclosure of material preparatory to the proceedings of Parliament would burden the Parliament. Such a disclosure would have the chilling effect alluded to in the authorities.
19. As to how the doctrine interacted with the scheme of the FOI Act, the Solicitor-General submitted that the applicant's freedom of information officer was required by clause 17 of schedule 1 to make a finding (which has no legal effect outside of the process being undertaken), that disclosure of a document would infringe the privilege of the Parliament. There is no need for the freedom of information officer to investigate or to consider the extent of any damage to the frank and fearless provision of advice. It was argued that a claim of Parliamentary privilege is effectively a class claim, and the task for the freedom of information officer is simply to determine whether the Chief Executive appropriated the documents for his use as a witness before the Parliamentary committee. Having so found, it would follow that a public disclosure of those documents would constitute an infringement of the privilege.
20. The Solicitor-General acknowledged that there remained some scope for argument as to the reach of the privilege. The doubt arises from the uncertainty of the scope of the phrase, in article 9, "court or place outside of the Parliament". Much of the judicial consideration of Parliamentary privilege has concerned resistance to production of documents to a court or tribunal. The disclosure contemplated by clause 17 does not involve a court or tribunal. There has been no determinative judicial consideration of whether the phrase "place outside of the Parliament" extends, and if so, how far, beyond a place that has court-like characteristics. The Solicitor-General argued for a broad interpretation, giving the words their natural meaning.

1. The respondent submitted that the Tribunal's task entails statutory construction of the South Australian framing of the exemption. The respondent observed that clause 17(c) of schedule 1 of the FOI Act is an exact replication of s 46 of the Freedom of Information Act 1982 (Cth), and that s 46 is the provision on which clause 17 was based. However, clause 17(c) must be considered in its context and that the list of grounds of exemption in clause 17 informs the proper interpretation of clause 17(c).
2. That list provides that a document will be exempt if its public disclosure would:

a) constitute a contempt of court; > > b) contravene an order or direction issued by a person or body with the power to take evidence on oath; or > > c) infringe the privilege of Parliament.

3. In relation to the exemption for documents that would constitute a contempt of court, the task for the agency's freedom of information officer is to make a finding that disclosure would constitute a contempt of court. Similarly, the officer's task in relation to clause 17 (b) is to make a finding that the proposed disclosure would contravene an order or direction issued by a person or body with the power to take evidence on oath. Consistent with this, the officer's task under clause 17(c) is to determine whether an infringement of the privilege of Parliament would occur, as a matter of fact, if the document were disclosed under the FOI Act.
4. Mr Jacobi KC observed that whilst the Tribunal is bound by Rowley v O'Chee, the respondent's position is that to the extent that Rowley v O'Chee stands for the proposition that documents are privileged even where they have as their only connection to Parliamentary proceedings that they were prepared for use in proceedings, is incorrect. Mr Jacobi KC invited the Tribunal to give the case its narrowest operation, but submitted that in any event, the current proceedings concern circumstances that are materially distinguishable from that case and those authorities relied upon by the applicant.
5. In particular, Rowley v O'Chee and the other authorities relied upon by the applicant all concerned disclosure to a court or tribunal. Therefore, their reasoning must be understood in the context of disclosures to courts and tribunals. By contrast, the circumstances before the Tribunal concern a disclosure to an "other place". He submitted that "other place" should be construed to refer to places with the characteristics of courts, including the power to compel evidence. In support of this approach, Mr Jacobi KC referred the Tribunal to the analysis of the phrase "outside of the Parliament" by each of Professor Twomey[30] and Professor Campbell.[31] Both support a narrow construction of the phrase "outside of the Parliament" and consider that it refers to a "place where people may be coerced to give evidence and make findings" about the substance of what was said in Parliament.
6. Such a disclosure does not resemble use of the document by a court or another "place" that does court-like things. Mr Jacobi KC argued that the action of the FOI officer or agency in disclosing documents pursuant to the FOI Act is not a disclosure in the sense intended by article 9 because it is not made to a body that has court-like functions and powers.
7. In any event, it was submitted by the respondent, a disclosure by an FOI officer or agency is not an act that could be said to entail questioning or impeaching the proceedings of Parliament. As to "impeaching" the respondent invites the Tribunal to prefer the construction of that term given by Professor Twomey over that in Rowley v O'Chee.
8. Nor, he submitted, are documents prepared by public servants for a member of the executive who is a witness before a Parliamentary committee, capable of being documents that the privilege is intended to protect. In Rowley v O'Chee, the information-providers were members of the public and the recipient was a Member of Parliament. The doctrine was invoked to protect the fundamental tenet of Parliamentary democracy arising from the Member's function of representing constituents in the Parliament. By contrast, in the current proceedings, the information-provider is a public servant (the briefing author) and the recipient is another public servant whose is duty-bound to provide honest answers to a committee of Parliament. The respondent submitted that there is no analogy to be drawn, and that the applicant has not filed evidence to support the proposition that disclosure of such documents would have the chilling effect foreshadowed by the applicant.
9. The respondent called in aid a guideline issued by the Information Commissioner of the Commonwealth, which addresses the proper approach to be taken in the interpretation of s 46 upon which clause 17(c) is based. Mr Jacobi KC submitted that the guideline supports the contention that a briefing note, even one prepared for a Minister, will not usually attract Parliamentary privilege unless its disclosure would entail some interference with a proceeding of Parliament.
10. Mr Jacobi KC also referred the Tribunal to an academic article, authored by Professor Peter Bayne, which lends support to the proposition that the privilege attaches to documents created for the purpose of committee proceedings in order to protect from publication the evidence given to a committee prior to the committee reporting to Parliament, or prior to the committee authorising publication of the evidence or published its own report. Mr Jacobi KC also refer to the Parliamentary Standing Orders. Standing order 398 provides that the evidence taken by any committee and documents presented to such committee which have not been reported to the council shall not be disclosed or published by any member of such committee or by any other person, without the permission of the Council. Mr Jacobi KC submitted that clause 17(c) has as its purpose the furtherance of the prohibition in the standing orders.
11. Mr Jacobi KC invited the Tribunal to approach the issue by considering the "matter" within the document and to determine whether an infringement of the privilege would occur if the Chief Executive were to speak publicly on that "matter". It was submitted that on the applicant's analysis, the Chief Executive would be prohibited from disclosing the information within the document in any forum e.g. publishing it on his website, even if he was not asked about it in the Committee.
12. In so doing, he took up the point made by Fitzgerald P in Rowley v O'Chee:

Indeed, if his argument is correct, Senator O'Chee could not himself give evidence of the documents for which privilege is claimed in denying that the statements which he allegedly made in the radio broadcast on 16 June 1995 were 15 published ''with an absence of good faith and in contumelious disregard of [Mr Rowley's] rights''.[32]

1. Parliamentary privilege is a concept rooted in the separation of the arms of government as a fundamental tenet of the Westminster system of Government. In Mees v Roads Corporation,[33] Gray J said:

... Art 9 seems to be construed now as a constraint on the judicial arm of government. The fundamental rationale of a court is the resolution of legal disputes through the exercise of Impartial decision-making power and the ability to enforce the resulting decisions. Courts have a duty to resolve the disputes that are brought to them. There is therefore obvious scope for conflict between the duty of a court to decide a particular case according to law, and the privilege of Parliament to retain control over its own proceedings in a case which raises, or has the potential to raise, an issue about what has occurred in parliamentary proceedings. This conflict has been resolved in part by the development by courts of rules limiting the extent to which courts can examine and take account of proceedings in Parliament. The development of such rules is far from complete and the content of some that have been developed is not altogether clear.

2. The privilege does not preclude proof of Parliamentary events. The fact that something was said, who was present at a Parliamentary proceeding and what was tabled are all able to be proved without infringing the privilege.[34] However, what was said must not be the subject of any "submission or inference".[35]
3. The operation of Parliamentary privilege as it applies to documents sought pursuant to an exercise of a court's power to compel a party to proceedings to produce documents, has been the subject of judicial and academic consideration. However, discerning the state of the law in that respect is not the only exercise required in this proceeding. By enacting clause 17(c) of schedule 1 of the FOI Act, the South Australian Parliament attaches exempt status to documents that have been the subject of a determination, or finding, that their public disclosure would constitute an infringement of the privilege.
4. Clause 17(c) seeks to invoke the doctrine of Parliamentary privilege. There is no suggestion (as contrasted with the expansion of Cabinet confidentiality in clause 1)[36] that clause 17(c) connotes anything more or less than what is embraced by the doctrine, and as a fundamental Constitutional doctrine,[37] it should not be assumed that the Parliament intended, in drafting clause 17(c), that the doctrine be given more or less than its ordinary operation.
5. Clause 17(c) mirrors s 46 of the FOI Act (Cth),[38] and in the absence of any judicial consideration of clause 17(c), it is appropriate to draw upon the authorities that have considered the scope and operation of s 46 and, in turn, the scope and operation of article 9 of the Bill of Rights.
6. There are two matters to be determined to ascertain whether the documents are exempt under clause 17(c). Do the documents attract the privilege? Would their public disclosure infringe that privilege?

1. Whether a document attracts the privilege can only be determined in any final or binding sense by a court or by the Parliament itself.[39] However, the scheme of the FOI Act must be understood to confer on an FOI officer the task of making a non-binding finding as to whether privilege attaches to the documents. The Act could have required an FOI officer to consult with the Parliamentary Clerk, in a manner similar to the requirements on the FOI officer to consult with other governments and other persons in whose knowledge the basis for an exemption may lie, but such a requirement is absent in respect of Parliamentary privilege.
2. The attachment of Parliamentary privilege to a document is not contingent upon the intention of the document's author. In that sense, the purpose for which the document was prepared is not determinative of whether the privilege attaches.
3. I consider that documents 5 and 6 attract the privilege because:
   1. The Budget and Finance Committee of Parliament, being a statutory standing committee of the Parliament, conducts proceedings which are the proceedings of Parliament.[40]
   2. Occasions of evidence given by witnesses, including witnesses who are not Members of the Parliament, are occasions to which the privilege attaches.[41]
   3. The Chief Executive is not a Member of Parliament but his evidence to the committee in response to a request to attend constituted an occasion attracting the privilege.
4. Documents prepared by or for witnesses for the purpose of an attendance before a Parliamentary Committee attract the privilege.[42] This is so whether or not the document is read from or used in any manner at the hearing itself.
5. Any privilege attaching to the documents in the possession of the Chief Executive or of his evidence, remains a privilege enjoyed only by the Parliament and not the Chief Executive.
6. The privilege attaches at the point that the witness appropriates the content of the document for its anticipated use. That may be at the point of preparation but where the document is prepared by a third party for a witness, such appropriation may not occur until the witness has the document.
7. The evidence is sufficient to establish that the Chief Executive appropriated the documents prepared for him when he took them to Parliament, and at that point, privilege attached to them.
8. The relevant documents held by Senator O'Chee in Rowley v O'Chee, and by the Chief Executive in the present proceedings each attracted the privilege and the fact Senator O'Chee was a Member of Parliament was not the determinative factor. The privilege protects the Parliament as an institution and the proceedings; it is not an individual's privilege or immunity. It can only be waived by the particular House or Chamber.[43]

Would the documents' public disclosure infringe the privilege?

1. In order to be exempt, it must also be determined whether public disclosure of the documents would constitute an infringement of the privilege.
2. This entails consideration of the following:
   • How does a theoretical public disclosure interact with the words "to a court or other place" in article 9?
   • What is entailed by "impeachment and questioning" in article 9?

Public disclosure and disclosure to a court or other place

1. The most common context in which Parliamentary privilege is considered is in anticipation of the documents being impeached or questioned in a court in proceedings. The privilege is successfully claimed to fend off an impeachment, though an infringement that has in fact occurred may be the subject of a response by the parliament in question.
2. Examples of consideration of the privilege in that context form the mainstay of the curial analysis. Doyle CJ said of s 16(3) of the Parliamentary Privileges Act 1987 in Rann v Olsen[44] at [204]:

Parliament has prohibited the Court from considering in any way evidence or submissions about the truth of proceedings in Parliament.

3. More recently, Kourakis CJ found that a briefing note for a Minster's use in Parliament attracted the privilege in CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd v South Australia[45] and that its production to the Court in litigation was protected by the doctrine.
4. Article 9 refers to an impeachment occurring "in a court or other place out of Parliament". The words "out of Parliament" are not superfluous in the original terms of article 9 because the House of Lords is both a parliamentary and judicial body. The chambers of Australian parliaments are not courts and the words "out of Parliament" make no contribution in the Australian context and were left out of s 16 of the Parliamentary Privileges Act 1987 (Cth). The question is limited now to what is meant by the words "or other place".
5. There is force to the contention that the other places referred to in s 16(1), at least, are limited to courts and tribunals. That inference derives from the fact that s 16(1) has an exclusion in s 16(3) that refers expressly to courts and tribunals and is best understood to imply, at least, that the places in s 16(1) are limited to courts and tribunals or possibly extended to bodies with the power to impose sanctions. Professor Enid Campbell said,

The phrase "any... place out of parliament" must surely have to be interpreted in light of the history and objects of Article 9 of the Bill of Rights 1689. Exploration of those matters would probably show that the primary object of Article 9 was to protect members of parliament against civil and criminal liabilities for things they had said in the course of parliamentary debate. While courts today may be prepared to read Article 9 as having prohibited the impeachment or questioning of proceedings in parliament by any body which has the power to impose sanctions, including disciplinary sanctions, they would probably not construe Article 9 as having prohibited the questioning of proceedings in parliament by agencies of the executive branch of government in exercise of non-coercive powers.[46]

6. As referred to earlier, limiting the operation of the privilege to protect against inquiries and challenges of Parliamentary proceedings in places that can compel evidence is consistent with the constitutional purpose of the privilege.
7. As to whether "or other place" is to be construed to mean only places with court like-characteristics, the historical context of the privilege is consistent with such a conclusion. In other words, the "places" referred to are places which might otherwise compel the production of documents connected with the proceedings of Parliament where to do so amounts to an impeachment or questioning of the documents.
8. That conclusion suggests that the disclosure of the documents by the FOI officer to the applicant in the circumstances of the current proceedings cannot, of itself, constitute an infringement of Parliamentary privilege because the disclosure is not to a court or other place within the meaning of article 9.

Does clause 17(c) modify the operation of the privilege doctrine?

1. However, consideration must be given to whether clause 17(c) has been drafted so as to modify the operation of the privilege for the purpose of the exemption. The clause applies whether the "public disclosure" of the documents constitutes an infringement. A finding of infringement is to be determined by reference a hypothetical circumstance, namely the "public disclosure" of the document. It is not whether the provision of the document to the FOI applicant would constitute an infringement. This is important because it means that the FOI Officer does not have to ascertain or speculate on the use to which the FOI applicant will put the document. The FOI Officer merely has to hypothesise a public disclosure and determine whether such a disclosure would infringe the privilege.
2. Nor is "public disclosure" consistent with a limited meaning of "or other place". Public disclosure creates a new circumstance under which the infringement is to be considered.
3. The introduction of the concept of "public disclosure" in clause 17(c) also raises the question of how "public disclosure" interacts with the concept of impeachment or questioning in a court or other place. There are several possible constructions.
4. One is that, contrary to the conclusion above, "other place" must be taken to mean "any other place", which would allow it to operate alongside "public disclosure" such that any hypothetical public disclosure comes within "other place".
5. Another construction is that "public disclosure" replaces "court or other place" for the purposes of determining whether the exemption applies. This has the effect that the FOI officer is required to determine whether the documents attract the privilege and whether their public disclosure amounts to an impeaching or questioning of them. If the answer to both questions is yes, then the documents are exempt.
6. With some hesitation, I consider that the second approach is the appropriate one. By the use of the words "public disclosure" (in contrast to "disclosure", which is the term used in other exemptions), the Parliament has conveyed its intention to create as the enlivening circumstance, a hypothetical public disclosure of the document. Having posited that, the FOI officer is equipped to consider whether such a disclosure would impair or undermine the freedom of debate in the Parliament.
7. It is consistent with Parliament's willingness, in relation to Cabinet confidentiality, to modify and extend the doctrine to fit the mould of the FOI scheme.[47]
8. Such modification is also consistent with the Commonwealth Parliament's willingness to shape the form of the privilege for the purposes of its codification in s 16 of the Parliamentary Privileges Act 1987. In Sportsbet (No 3), Jagot J said[48]:

The state referred to s 16 of the Parliamentary Privileges Act 1987 (Cth) as a useful guide to the scope of the doctrine in NSW. Section 16, however, was a legislative response to the limited operation the courts gave to Art 9 of the Bill of Rights in R v Murphy (1986) 5 NSWLR 18; 64 ALR 498 and may well expand the scope of the common law privilege: see Mees at [84] and Rowley v O'Chee [2000] 1 Qd R 207 at 219; (1997) 150 ALR 199 at 207 (Rowley). In any event, the state submitted that the present case was analogous to Rowley in which documents were held to be for the purpose of proceedings in parliament within the meaning of s 16(2) of the Parliamentary Privileges Act in circumstances where the documents were created or prepared for the purpose of or incidental to the transacting of business in the Senate. According to the state it follows that draft laws are created or prepared for the purpose of or incidental to the transacting of parliamentary business. Making laws is an important part of the proceedings of parliament. Hence, the three classes of documents in question attract parliamentary privilege. The doctrine operates to prevent the disclosure of the documents and their use. The fact that the documents cannot be used in the proceeding also affects the balancing exercise required as part of the public interest immunity claim.

1. As to what is connoted by "impeached or questioned", the Tribunal accepts that the terms are not to be construed narrowly and that the words convey an intention to protect against the impediment or hinderance or injury to the freedom of speech and debate, as described by MacPherson JA in Rowley v O'Chee[49]:

It is not, at first sight, altogether easy to see that requiring Senator O'Chee to produce documents for the inspection of another party to litigation can be said to involve ''questioning'' his preparation of them in any way. However, the prohibition in art. 9 also uses the word ''impeach''. In modern parlance ''impeach'' is often used to mean ''to bring a charge or accusation against'', which is the fourth of the meanings ascribed to it in the Oxford Dictionary: cf. R. v. Murphy (1986) 5 N.S.W.L.R. 18, 25-26. The first is ''to impede, hinder, prevent'', and the second: ''to hinder the action, progress, or well-being of; to affect detrimentally or prejudicially; to hurt, harm, injure, endamage, impair.'' > > According to the Oxford Dictionary, the second meaning is now obsolete; but, from the examples given in that work, both it and the first meaning were in current use at the time the Bill of Rights was enacted in 1688. It is therefore to those meanings that resort should be made in interpreting the word ''impeach'' in art. 9 of the Bill of Rights. ''The best and surest mode of construing an instrument'', said Brennan J. (as he then was) in Corporate Affairs Commission (N.S.W.) v. Yuill [1991] HCA 28; (1991) 172 C.L.R. 319, 322-323, ''is to read it in the sense which would have been applied when it was drawn up.'' Adopting that course with respect to art. 9 has the consequence that, when read with s. 16(2) of the 1987 Act, it means that preparation of a document for purposes of or incidental to the transacting of the business of a House is not to be impeded, hindered or prevented (first meaning); or is not to be detrimentally or prejudicially affected, or impaired (second meaning). ''Impair'' was the meaning adopted by Davies J.A. in Laurance v. Katter [2000] 1 Qd.R. 147, 204; and either it or any of the other meanings mentioned first and second in the Oxford Dictionary may be used in interpreting art. 9.

2. Whilst MacPherson JA was speaking of a direction to produce to a court, his Honour's words are equally applicable to the production of documents pursuant to the FOI regime[50]:

Proceedings in Parliament will inevitably be hindered, impeded or impaired if members realise that acts of the kind done here for purposes of 35 Parliamentary debates or question time are vulnerable to compulsory court process of that kind. That is a state of affairs which, I am persuaded, both the Bill of Rights and the Act of 1987 are intended to prevent.

Would the public disclosure of the documents impair the freedom of debate in the Parliament?

1. The applicant submitted that although the agency had not filed evidence about that issue, the agency had made its case adequately to the Ombudsman. In any event, a proposition as to the likely impairment of freedom of debate is not one that is amenable to evidence. In Opel Networks,[51] the Court did not consider that there needed to be evidence about the potential impact of a lack of immunity on the frankness of the material in the documents. The Court said,[52]

It seems to me necessarily true, and not dependent upon the evidence of the particular case, that if briefings and draft briefings to Parliamentarians for Question Time and other Parliamentary debate are amenable to subpoenas and other orders for production, the Commonwealth officers whose task it is to prepare those documents will be impeded in their preparation, by the knowledge that the documents may be used in legal proceedings and for investigatory purposes that might well affect the quality of information available to Parliament. To take a step that would have that consequence would, I think, derogate from the force of the Bill of Rights and run contrary to the historical justification for that legislation, so ably sketched by McPherson JA (and see Mees v Roads Corporation [2003] FCA 306; (2003) 128 FCR 418 at 442 [75]-[79] per Gray J).

2. Indeed, it would be difficult for evidence to be given about that or to identify an appropriate witness.
3. Nevertheless, having reached a point on the issue of construction, I consider that it would be appropriate to hear the parties on that issue. The agency foreshadowed an application to file further evidence on this issue.
4. I consider that this decision disposes of a sufficient portion of the matter to enable orders that set aside the Ombudsman's determination. As to the balance of the orders to be made, I shall hear the parties further.

Question: Whether, on a proper construction of clause 17(c) of schedule 1 of the Freedom of Information Act 1991, a document or part of a document that has been prepared for the purposes of a person's attendance before a Parliamentary committee can only be exempt where the documents were "presented to Parliament" or "the specific subject matter of documents... were raised in Parliament".

Question: Whether the Ombudsman's determination that documents 5 and 6 were not exempt under clause 17(c) of schedule 1 of the Freedom of Information Act 1991 lacked an evident and intelligible justification and was not open to the Ombudsman.

1. The application for review is to be listed for further hearing as to its disposition in accordance with the answers to the questions of law.

[3] Section 40(1a) FOI Act.

[4] By virtue of the fact that the question of law is to be determined in accordance with the procedure in s 26 of the SACAT Act.

[5] Book of Documents, document 1. (Email from the applicant to the respondent dated 13 June 2023).

[6] Ibid, document 1. (Email from the Respondent to Applicant dated 31 July 2023.)

[7] Ibid, document 1. (Email from the Respondent to Applicant dated 31 July 2023.)

[8] Ibid, document 1. (Email from the Respondent to the Ombudsman dated 15 August 2023.)

[10] Ibid, document 2. (Letter from the Applicant to the Respondent dated 24 September 2023.)

[11] Mees v Roads Corporation [2003] FCA 306; [2003] 128 FCR 418, Gray J at [76].

1. [12] In Rowley v O'Chee 1 Qd R 207, MacPherson JA said at 218 "The Act of 1987 was passed in consequence of the decisions of Cantor J.(unrep.) and of Hunt J. in R. v. Murphy (1986) 5 N.S.W.L.R. 18, with a view to clarifying the scope or operation of the Bill of Rights in certain particulars. See Laurance v. Katter [2000] 1 Qd.R 147 at 203."

[13] [2000] 1 Qd R 207; [1997] QCA 401.

1. [18] Ibid, 221, MacPherson JA: "Junk mail does not, merely by its being delivered, attract privilege of Parliament." See also: Crime and Conduct Commission v Carne [2023] HCA 28 per Kiefel CJ, Gageler and Jagot JJ at [36].

[19] [2023] HCA 28.

1. [21] [2009] FCA 1283; (2009) 262 ALR 27 per Jagot J.

[23] [2011] FCA 196.

[25] [2010] NSWSC 142 per Austin J.

[27] [2024] SASC 46.

[30] Anne Twomey, The Constitution of New South Wales (Federation Press, 2004) Ch 10 Parliamentary Privilege.

[31] Enid Campbell, Parliamentary Privilege (Federation Press, 2003) Ch 2 - 3.

[33] [2003] FCA 306; (2003) 128 FCR 418.

[34] Prebble v Television New Zealand Ltd [1995] 1 AC 321, 337; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, per Gibbs ACJ, 37.

[35] Comalco Ltd v Australian Broadcasting Corporation, (1983) 50 ACTR 1, Blackburn CJ, 5.

[36] Freedom of Information Act 1991 (SA), schedule 1 clause 1.

[37] Re Bell Group NV (in liq) (No 2) [2017] FCA 927, [36] (Jagot J).

[38] Section 46 of the FOI Act (Cth): A document is an exempt document if public disclosure of the document would, apart from this Act and any immunity of the Crown:

(a) be in contempt of court;

(b) be contrary to an order made or direction given by a Royal Commission or by a tribunal or other person or body having power to take evidence on oath; or

(c) infringe the privileges of the Parliament of the Commonwealth or of a State or of a House of such a Parliament or of the Legislative Assembly of the Northern Territory.

[39] The President of the Legislative Council of Western Australia v Corruption and Crime Commission [No 2] [2021] WASC 223, [16] (per Hall J).

[40] The "proceedings" of Parliament describe activities beyond Parliamentary Debate in a chamber. The proceedings of a Parliamentary Committee, and in particular a standing committee such Budget and Finance, are "proceedings" in the relevant sense. The Parliamentary Committees Act provides that the privileges of Parliament attach to the work of the Committee: s 28.

[42] Cornwall & Ors v Rowan [2004] SASC 384 per Bleby, Besanko and Sulan JJ at [389].

[44] [2000] SASC 83 Doyle CJ, Prior, Perry, Mullighan and Lander JJ.

[45] [2024] SASC 46.

1. [46] E Campbell, Parliamentary Privilege, The Federation Press, 2003, p 21.

[47] Clause 1 of schedule 1 of the FOI Act embodies the principles of Cabinet confidentiality in a manner that modifies their articulation by the courts in relation to public interest immunity.

[48] Sportsbet (No 3) (n 18), [19].

[51] [2010] NSWSC 142.