The respondent submitted that the disclosure of documents to him under the FOI Act would not amount to impeaching or questioning the proceedings of Parliament in a 'court or place out of parliament', contending that 'other place' out of parliament was to be understood to connote a place holding the power to compel discovery and production of evidence. The respondent further submitted that for disclosure under the FOI Act to constitute impeachment of the proceedings of parliament, the agency must establish that disclosure would create a harm to the freedom of debate in the Parliament.

The Department contended that 'other place' was consonant with the regime established by the FOI Act as a result of the obligation that an FOI officer has to disclose non-exempt documents. The Department did not adduce evidence of harm from disclosure of the two documents, but contended that where there is a connection between the documents and Parliamentary proceedings, mere disclosure may constitute infringement of privilege.

Held, setting aside the Ombudsman's decision and making the determination that the documents are exempt pursuant to cl 17(c) of Schedule 1 of the FOI Act:

• The right of access to non-exempt documents under the FOI Act creates an obligation, upon request, for an agency to determine whether the requested document is exempt and to a requirement to grant disclosure if not exempt. The executive arm of Government, in the fulfilment of its statutory obligations under the legislation, is endowed with the status of 'other place'.
• No particular harm is required to be established where documents fall within the class of documents that are closely connected to the proceedings of Parliament, such as in this case.
• The intended use of the document by the person requesting access need not be known for a determination of infringement to occur. Further, the content of a document is not necessarily the determinant of its privileged status, but rather privilege may arise from the purpose of the document's creation or adoption of purpose by a Member of Parliament or witness in parliamentary proceedings.

Administrative review - Freedom of Information Act 1991 - Agency aggrieved by a determination of the Ombudsman - Whether a document is an exempt document - Parliamentary privilege

Freedom of Information Act 1991 ss 3, 3A, 12, 20, 39, 40, 50, 51

South Australian Civil and Administrative Tribunal Act 2013 s 37

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

Australian Capital Territory v SMEC Australia Pty Ltd [2018] ACTSC 252; (2018) 337 FLR 390

CPB Contractors Pty Ltd and Hansen Yunken Pty Ltd v South Australia [2024] SASC 46

Department for Environment and Water v Patrick [2024] SACAT 73

Ellis v The King [2023] SASCA 28

In the matter of Opel Networks Pty Ltd (in Liq) [2010] NSWSC 142; (2010) 77 NSWLR 128

JJK v Police (2023) 143 SASR 303

Mees v Roads Corporation [2003] FCA 306; (2003) 128 FCR 418

President of Legislative Council of Western Australia v Corruption and Crime Commission (No 2) [2021] WASC 223

Re Opel [2010] NSWSC 142; (2010) 77 NSWLR 128

Re Saffioti v Minister for Transport 1 [2012] WAICmr 10

Rowley v O'Chee [2024] SASC 46

Sportsbet Pty Ltd v New South Wales (No 3) [2009] FCA 1283; (2009) 262 ALR 27

Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95

Tziolas v NSW Dept of Education and Communities [2012] NSWADT 69

Zonnevylle v Minister for Education and Early Childhood Learning [2023] NSWCATAD 135

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(c)(i)

1. Mr Patrick, the respondent, seeks access to documents held by the applicant, the Department for Environment and Water ('the Department'), under the Freedom of Information Act 1991 ('FOI Act'). The documents to which Mr Patrick seeks access are two briefing notes prepared for the Department's chief executive for the purpose of attendance before a Parliamentary committee.
2. The documents about which these proceedings were brought are referred in this decision to as documents 5 and 6, which preserves the manner in which they have been referred to in the proceedings and before the Ombudsman. They are also referred to as "Parliamentary briefing notes" or "PBNs".
3. The Department contended that the documents are exempt because their disclosure would infringe Parliamentary privilege. The applicant contended that the documents do not attract the exemption.
4. By a decision issued on 14 December 2023 on an external review brought by Mr Patrick, the Ombudsman determined that the documents were not exempt.
5. The Department brought an application for review in this Tribunal. An application for review by an agency may only be brought on a question of law and this must be decided by a Presidential Member of the Tribunal.[1]
6. In a decision issued on 21 October 2024, I determined two questions of law referred under the FOI Act by the parties to me as President.[2] The effect of answering those questions was to establish that the Ombudsman had, on 14 December 2023, incorrectly applied the law when undertaking the external review of the Department's decision in relation to Mr Patrick's application for documents.
7. In the course of that exercise, I found that the two requested documents attracted Parliamentary privilege. Having done so, on 3 December 2024, I invited the parties to provide any further evidentiary materials and submissions as to whether the public disclosure of the documents would infringe the privilege for the purpose of clause 17(c) of Schedule 1 of the FOI Act.
8. The parties subsequently filed affidavits and submissions between 29 November 2024 and 24 January 2025. The parties agreed that, thereafter, the Tribunal should determine the issue without a further hearing unless the Tribunal required one to clarify the parties' positions. This is my decision and my reasons.
9. I have had regard to:
   1. The joint appeal book dated 2 May 2024;
   2. The joint list of authorities filed on 24 June 2024;
   3. The Department's original written submissions dated 2 April 2024;
   4. The Department's further written submissions dated 24 December 2024;
   5. Mr Patrick's original notice of alternative contention dated 5 March 2024;
   6. Mr Patrick's original submissions dated 30 April 2024;
   7. Mr Patrick's further submissions filed on 29 November 2024, 24 January 2025 and 4 February 2025.[3]
   8. Mr Patrick's affidavit affirmed on 2 December 2024.
10. The parties were ably represented by counsel: Mr M Wait SC, Solicitor-General, with Mr J Metzer for the applicant, and Mr S McDonald SC,[4] and subsequently Mr C Jacobi KC, with Mr D Lorbeer for Mr Patrick.

1. The background to Mr Patrick's request is described in paragraphs [1] to [19] of my decision of 21 October 2024.[5] It is not necessary to repeat them to be able to read these reasons. However, it is convenient to set out the Department's asserted facts in relation to the documents to which access is sought. In its written submissions dated 2 April 2024 in respect of the referred questions of law, the Department provided the following information regarding documents 5 and 6:[6]

The Chief Executive of the Department was requested to attend as a witness before the Budget and Finance Committee of the Legislative Council on 30 January 2023. > > The Budget and Finance Committee has broad terms of reference, including "all matters relating to the state budget and the financial administration of the State, any related policy matter and any other related matter". > > The Chief Executive requires the Department to prepare comprehensive PBNs for appearances before the Budget and Finance Committee, as its hearings may be wide-ranging and cover all aspects of an Department's operations and functions. > > Documents 5 and 6 were prepared by staff within the Department and provided to the Chief Executive "on 27 January 2023 for the purpose of an upcoming appearance before the Budget and Finance Committee on 30 January 2023". > > Each of Documents 5 and 6 include a header stating "Budget and Finance Committee 2023 - Parliamentary Briefing Note", and the content is, on its face, directed to the attendance before the Budget and Finance Committee and contains matter within the terms of reference of the Budget and Finance Committee. > > Printed copies of Documents 5 and 6 were brought by the Chief Executive to the hearing before the Budget and Finance Committee on 30 January 2023. Copies were also provided to other DEW staff who attended that hearing.

2. Documents 5 and 6 were not tabled in Parliament and for the purposes of these proceedings, the documents were not "used".

1. Section 20 of the FOI Act provides that an agency may refuse to disclose an exempt document. Exemptions are set out in Schedule 1 of the FOI Act. Clause 17 of Schedule 1 provides:

A document is an exempt document if it contains matter the public disclosure of which would, but for any immunity of the Crown -

(b) contravene any order or direction of a person or body having power to receive evidence on oath; or

1. The issue to be considered in disposing of the balance of the proceedings is whether the public disclosure of documents 5 and 6 would infringe the privilege of the Parliament. If disclosure would do so, the documents are exempt.

1. The parties agree that the dispute concerns the proper construction of clause 17 of Schedule 1 of the FOI Act and its application to documents 5 and 6. The approach to be taken to statutory construction is well-established. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[7] the Court said:[8]

... the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. > > (Footnotes omitted)

2. In terms of the purpose and policy of the FOI Act, the starting point for consideration are those provisions that Parliament has enacted to guide the construction of the Act. The objects of the FOI Act are to promote openness and accountability in government and facilitate effective participation by members of the public in the making and administration of laws and policies.[9]
3. Section 3(1) of the FOI Act states that those objects are consistent with the principle of the executive government's responsibility to parliament. Section 3(2) provides that the means by which it is intended to achieve these objects are:

(a) ensuring that information concerning the operations of government is readily available to members of the public and to members of parliament;

(b) conferring on each member of the public and on members of parliament "a legally enforceable right" to be given access to documents held by government, "subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy"; and

(c) enabling each member of the public to apply for the amendment of government records pertaining to them.

1. Section 3A sets out Parliament's intention regarding the administration of the FOI Act. Relevantly, it states that it is the intention of Parliament that the FOI Act should be interpreted and applied so as to further the objects of the FOI Act (as described in s 3),[10] and that a person or body exercising an administrative discretion conferred by the FOI Act exercise that discretion, as far as possible, in a way that favours the disclosure of information of a kind that can be disclosed without infringing the right to privacy of individuals.[11]
2. There is no presumption in favour of disclosure. As the Court of Appeal said in JJK v Police:[12]

It can immediately be seen that a person's right to access an agency's documents is qualified in the sense that it is a right to access documents "in accordance with this Act". As elaborated upon below, there is no presumption in favour of disclosure, nor is there a presumption against disclosure. The extent of a person's right to access documents falls to be determined by reference to the terms of the FOI Act.

3. Keeping those objects and principles in mind, it is necessary then to consider the words of the exemption, and the advice of Hall J in President of Legislative Council of Western Australia v Corruption and Crime Commission (No 2),[13] who said:[14]

The importance of parliamentary privilege should not result in it being treated with unquestioning reverence. The invocation of parliamentary privilege is one that is apt to dazzle lawyers and judges. However, the phrase is not a magical one that, once uttered, should result in meek acceptance by the courts. In fact, it is largely in the courts that the meaning, extent and application of the privilege has been developed. > > (Footnotes omitted)

1. Some characteristics of parliamentary privilege have been set out in my earlier decision of 21 October 2024 which should be read in conjunction with these reasons.[15] Central to the disposition of the balance of the proceedings is consideration of how parliamentary privilege, as it operates in South Australia, protects impeachment of parliamentary proceedings in a "court or place out of parliament".[16] The respondent has made further submissions in respect of the question of whether disclosure pursuant to the FOI Act interacts with the concept of a "court or place out of parliament". It is appropriate to expand the consideration given to this in paragraphs [76] to [91] of my decision dated 21 October 2024.
2. It can be accepted that the words "out of parliament" which derive from Article 9 and its application to the United Kingdom and in particular the fact that the House of Lords is a court, do not add anything in the application of the privilege in the South Australian constitutional framework. It is sufficient to reduce the phrase to 'court or other place".
3. Unlike the circumstances of much of the litigation that has given rise to the jurisprudence concerning parliamentary privilege, these proceedings do not concern a challenge to production of documents to a court. Pursuant to the FOI Act, an officer of the executive arm of Government receives an application for documents for purposes that are not required to be disclosed. The FOI officer is required to determine whether the documents are exempt.
4. Mr Patrick submitted that the release of documents 5 and 6 to him in response to an application under the FOI Act would not involve, or amount to, impeaching or questioning the proceedings of Parliament in a "court or other place". He maintained that it was evident that the disclosure of the documents was not "in a court" and that provision to him should not be construed to amount to disclosure in an "other place". He submitted that "other place" must be understood to connote a place that shares certain characteristics with a court, and crucially the power to compel discovery and production of evidence and compel the attendance of witnesses. Underpinning this reasoning is the privilege reflecting the "doctrinal struggle for supremacy between absolute monarchy and parliamentary democracy",[17] which necessitated the courts being restricted in their ability to make incursions into the freedom of parliamentary debate.
5. Mr Patrick was open to the proposition that "places" that enjoyed powers to compel production of documents or evidence on oath might come within its scope. However, an agency of the executive is not such a body, and the circumstances in which disclosure of documents occurs pursuant to the FOI Act are of quite a different character.
6. Because of this significant distinction between the circumstances of disclosure pursuant to the FOI Act and disclosure pursuant to a court process, Mr Patrick submitted that the authorities upon which the Department has relied to argue that the documents are exempt, are distinguishable. In each of those cases, the contemplated disclosure was pursuant to the exercise of a power of compulsion such as discovery and production.
7. The Department contended that the regime established by the FOI Act is consonant with an "other place" because it entails disclosure in circumstances in which the officer of the executive is obliged to disclose documents that are not exempt documents.
8. The Department also referred the Tribunal to various occasions on which tribunals and decision-makers have decided that disclosure of documents under a freedom of information regime would constitute an infringement of parliamentary privilege, and are therefore exempt. It is convenient to turn to those decisions.
9. In Tziolas v NSW Dept of Education and Communities,[18] parliamentary privilege was considered under the equivalent New South Wales access to information regime.[19] The legislation has material differences to the South Australian scheme. Under the New South Wales regime, there is a presumption in favour of disclosure of documents held by Government.[20] Certain information is subject to a conclusive presumption against disclosure.[21] A document which would, but for any immunity of the Crown, infringe the privilege of Parliament, is conclusively presumed to carry an overriding public interest against disclosure.[22] The public disclosure of information which would infringe the privilege of the parliament is one such type of information.[23] The NSW Administrative and Disciplinary Tribunal was required to consider the status of speech notes and a briefing for a Minister which had been prepared but not used. The Tribunal applied In the matter of Opel Networks Pty Ltd (in Liq),[24] and, after finding that the documents were as described by the Department,[25] determined that the disclosure of the documents would infringe the privilege of the Parliament.[26]
10. In Tebbutt v Minister for Lands and Water,[27] the question of whether documents attracted parliamentary privilege arose again in the context of the NSW access to information legislation. The document in question was a "House folder note", being a briefing for the Deputy Premier to use when appearing before a parliamentary committee.[28] The Tribunal followed Jagot J's approach in Sportsbet Pty Ltd v New South Wales (No 3),[29] in relation to the use to which the jurisprudence concerning s 16 of the Parliamentary Privileges Act 1987 (Cth) could be relied upon. The New South Wales Administrative and Disciplinary Tribunal considered that privilege attached and that disclosure for the purposes of the New South Wales legislation would infringe it.[30]
11. In Zonnevylle v Minister for Education and Early Childhood Learning,[31] the same Tribunal considered a parliamentary briefing prepared "for the purpose of responding to questions that might arise in parliament",[32] and found that parliamentary privilege encompassed the document. The Tribunal relied on Tebbutt and Re Opel to find that a House Folder Note,[33] in relation to which evidence was led and accepted that it was prepared for the Minister, was privileged and that disclosure would infringe the privilege.[34]
12. In Re Saffioti v Minister for Transport,[35] the Western Australian Information Commissioner found that parliamentary privilege applied in respect of parliamentary briefing notes regardless of whether they were actually used or read from.[36] The Information Commissioner formed the view that there was a sufficient connection between the documents and parliamentary business.[37] That is, the question of connection to parliamentary proceedings was treated, in the absence of a general waiver, as conclusive of infringement.[38]

1. I accept Mr Patrick's contention that there is no authority that has engaged directly with his arguments as to "court or other place" in the context of an access to documents regime. Further, the tribunal decisions referred to by the Department are not binding upon me. It is therefore necessary to determine what is meant by "any court or other place" in the context of the FOI Act.
2. The expression "any court or other place" is not to be understood literally in its broadest sense. In Mees v Roads Corporation,[39] Gray J of the Federal Court said:[40]

... [Article 9] of the Bill of Rights cannot be taken absolutely literally. It is a fundamental tenet of a Westminster-style democracy that there be debate in the community about political issues. People are free to challenge and criticize what is said in Parliament and to do so publicly, vociferously and stringently ...

3. In President of Legislative Council of Western Australia v CCC (No 2),[41] Hall J of the Supreme Court of Western Australia was required to consider how the privilege might operate in relation to the Western Australia Conduct and Crime Commission ("CCC"). His Honour said:[42]

The privilege finds its primary operation in the courts, but article 9 extends beyond this. The reference to 'any court or other place' contemplates that the proceedings of Parliament can be impeached or questioned in places other than courts. This cannot be taken absolutely literally as it would then operate to prevent debate in the community or the media about political issues. It is beyond question that people are free to challenge and criticise what is said in Parliament and do so publicly, vociferously and stringently. So what are the other places that article 9 refers to? > > The growth in the number of Commissions and Tribunals has been a remarkable feature of the last 50 years. Many of these bodies are provided with wide powers to conduct investigations, compel witnesses and make determinations of fact. These determinations can include, as is the case with the CCC, findings or opinions regarding misconduct. Whilst no penal sanction or civil liability flows from such findings, they can be published in reports. The potential for impact on reputation and public standing is obvious (and, indeed, intended). Furthermore, the CCC, like many other similar bodies, is protected from actions for defamation. This is analogous to the privilege enjoyed by courts and those who appear in courts. These features support the conclusion that the 'other places' referred to in article 9 must encompass bodies of this type. If it did not, then the protection that it affords would be significantly watered down. Having regard to the context and the ejusdem generis principle of interpretation, the other places that article 9 refers to must be places that are analogous to courts. In my view this means tribunals, commissions or executive inquiries that determine liability or make findings as to character or conduct. > > (Footnotes omitted)

4. It may be observed that the CCC is much closer in character to a court than a government agency fulfilling functions under an access to documents regime.
5. The learned author Professor Enid Campbell expresses the view that a broad interpretation might be given to the phrase "place out of parliament" so as to include a disciplinary body, but expresses doubt as to whether it extends to agencies of the executive government in the exercise of non-coercive powers. She says:[43]

While courts today may be prepared to read Article 9 has having prohibited the impeaching or questioning of proceedings in parliament by any body which has 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 government in exercise of non-coercive powers.

6. Despite the weight that should be given to that considered view, it was not expressed in consideration of parliamentary privilege as an exemption to the disclosure of documents pursuant to a statutory access to documents regime.
7. The FOI Act does not compel disclosure of non-exempt documents. Indeed, there is no "place" at which an FOI disclosure occurs, except insofar as it occurs by a Government Department. The FOI Act does not concern itself with compulsion and prohibition. It concerns itself with rights. It grants a right of access to an applicant.[44] The effect of the failure of an officer of a Department to comply with the FOI Act is that the conduct may be reported to relevant authority (which in respect of the Department is the Department's Minister).[45] However, in respect of actions that are within the proper performance of functions, an FOI officer's actions are protected in respect of defamation, breach of confidence and has available a defence of honest and reasonable mistake in respect of criminal proceedings.[46]
8. The FOI Act creates a statutory right of access to documents held by Government for applicants that does not exist at common law. It creates a corresponding obligation on the part of an agency to make a determination as to whether a requested document is exempt.[47] There are consequences for agencies that do not fulfil their functions.[48] Clause 17(c) of Schedule 1 of the FOI Act carves out from the Department's obligation to disclose documents where to do so would infringe the privilege.
9. I consider that the FOI Act creates a statutory circumstance by which the executive arm of Government, in the fulfilment of its statutory obligation to administer the freedom of information laws, is endowed with the status of "other place".

Must harm be proved, and can mere disclosure ever establish an infringement of the privilege?

1. Mr Patrick maintained that the act of disclosure under the FOI Act will not constitute, with a few exceptions, an impeachment of the proceedings of parliament. Mr Patrick said that disclosure pursuant to FOI legislation is merely the giving of a document to a person for unspecified purposes.
2. The exceptions Mr Patrick advanced are that a disclosure of a document will infringe the privilege of parliament where a House of Parliament or a parliamentary committee has made an order or determination prohibiting the publication of particular information or documents. Another circumstance would be where a general standing order of a House of Parliament applies to impose a prohibition on the publication of a particular class of information or documents. A further example is where disclosure would otherwise be a contempt of a House (including a committee). Mr Patrick submits that none of those circumstances arise in respect of documents 5 and 6.
3. Mr Patrick contended that on an occasion of disclosure pursuant to the FOI Act, the Department must establish that the disclosure of the requested documents would create a harm to the freedom of debate in the Parliament. He submitted that there is necessarily a factual finding to be made by the Tribunal. He submitted that the Department cannot succeed because it has not adduced any evidence of the actual harm alleged to flow from the disclosure to him of documents 5 and 6. He submitted that it could not reasonably be concluded, without evidence, that such a proposition was self-evident.
4. Mr Patrick maintained that the public disclosure of a parliamentary briefing note does not necessarily entail an impeachment of the proceedings with which it is connected. It was contended that impairment was established by reference to whether the information within the briefing note was obtainable in other ways. He submitted that no harm, in terms of a diminution in the flow of comprehensive information and advice to Ministers, could be assumed when it is incumbent on public servants to furnish that advice.
5. Mr Patrick filed an affidavit affirmed on 2 December 2024. In it, he outlines his career as a senator and the establishment of his business "Transparency Warrior" which assists others to obtain access to information held by governments. He provides his observations as to how government officials undertake the process of giving evidence before Parliamentary committees in the Parliament of the Commonwealth, and he says that he has watched South Australian parliamentary committees "in action". He believes that the processes of the South Australian committees are relevantly the same as those in the Commonwealth Parliament.
6. Mr Patrick stated in his affidavit that his experience is that briefing materials prepared for government officials for the purposes of anticipated evidence before committees of the Commonwealth Parliament are "regularly and routinely" released by the Departments and published on the Department's "disclosure logs", without any suggestion arising that the documents attract parliamentary privilege. He says that, in his experience, no Senator has taken issue with such a disclosure and the Privileges Committee has not seen fit to consider whether such disclosures infringe the privilege of the parliament.
7. The Department did not adduce evidence of the harm that would flow if the documents were released. It relied upon several authorities, including Sportsbet v NSW (No 3),[49] and CPB Contractors Pty Ltd and Hansen Yunken Pty Ltd v South Australia,[50] as support for the proposition that where a connection between the documents and proceedings of Parliament has been established, mere disclosure may constitute the infringement and enliven the exemption. It submitted that some documents, including documents 5 and 6, are so closely connected to the proceedings of Parliament that the impairment of the freedom of debate is inevitable and not requiring of proof. The Department referred to various examples of courts having accepted that the exercise of applying the protection of parliamentary privilege entailed no more than being satisfied of that proximity to the parliamentary function. It submitted that the purpose of documents 5 and 6, as evident from their face, requires no further evidence that their disclosure was apt to impede the free provision of information to witnesses before parliamentary committees.

Consideration: mere disclosure and evidence of harm

1. In President of Legislative Council of Western Australia v CCC (No 2),[51] Hall J said that the use to which the documents are proposed to be put, and the effect of such use on a Member of Parliament, is an element of establishing an infringement. His Honour said:[52]

In my view parliamentary privilege as provided for in article 9 is concerned with the use to which the evidence of the proceedings is put. A requirement to produce records does not as such breach the privilege, particularly when it is borne in mind that confidentiality is not the essence of what is protected. Thus, whether production of records will breach privilege depends on what use is made of the evidence or document. That is, does that use put any member of Parliament at risk of adverse consequence by reason of what has been said or done in Parliament? In this case, the question is how does production of documents that are connected to proceedings put a member of Parliament at such risk?

2. His Honour's remarks were made in the context of the production of documents in an enquiry, rather than a freedom of information regime. Even so, there is some tension between those remarks and McPherson JA's statements in Rowley v O'Chee:[53]

... If it is necessary to go further and find some independent basis or reason for concluding that ... [documents were prepared for the purposes of proceedings in Parliament], 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. > > ... One would expect that a senator, who was planning to ask a question or speak on a particular topic in the House, would first set about collecting such documentary information as could be obtained in order to inform himself or herself sufficiently on that subject. > > ... There must (one may hope) be few parliamentarians who do not at some times in their careers take steps to assemble or record information in writing for purposes of or incidental to transacting business in the House by using it in debate, at question times, or in other parliamentary proceedings.

3. Mr Patrick's assertion that consideration of the use to which the documents will be put is a necessary step in determining whether privilege is infringed, is not consistent with more recent statements to the effect that the mere disclosure of documents, if sufficiently connected to parliamentary proceedings, will infringe the privilege. CPB Contractors Pty Ltd v State of South Australia,[54] involved a dispute as to the production of documents which were discovered in arbitral proceedings concerning the construction of a hospital. Certain documents were the subject of a claim of parliamentary privilege. In that case, evidence was adduced to establish the purpose of the documents, because they were not in a format that disclosed their purpose on their face.[55] Upon accepting the witness' evidence that the purpose of certain documents was to brief Ministers appearing before a budget and finance committee of Parliament, Kourakis CJ upheld the claim that production could not be compelled because the documents attracted the privilege.[56] No consideration was required to be given as to whether the infringement was caused by the inevitability of questioning (impeachment) the documents' content, or because the proximity of briefing notes to the proceedings of Parliament was such that production alone would infringe of the privilege. The harm was implicit in the circumstances of production.
4. However, Kourakis CJ was also required to consider some documents that were in the form of "PBN"s. The Court accepted the evidence that these notes were parliamentary briefing notes.[57] In upholding the claim of parliamentary privilege in respect of these documents, the Chief Justice said:[58]

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 privilege is essential for the purposes of ensuring free debate in Parliament and, in particular, for the purposes of ministerial accountability to Parliament.

5. In Australian Capital Territory v SMEC Australia Pty Ltd,[59] McWilliam AsJ of the Supreme Court of the Australian Capital Territory emphasised the purpose of the creation of the document as the determinant of whether the privilege attaches to it. The circumstances arose in the context of an application for production of discovered documents in a dispute between the ACT and a construction company in relation to an infrastructure project. After setting out the history and purpose of the privilege, her Honour said:[60]

As to the scope of the words of Article 9, "impeached or questioned in any court", if documents are protected by parliamentary privilege, then ordering production of documents on discovery is a form of "impeachment" of the proceedings of the parliament, because the risk of disclosure through a court process would have a chilling effect on the activities of and incidental to the parliament and would thus impede, hinder or prevent proceedings in parliament. It is therefore contrary to Article 9: Rowley v O'Chee [2000] 1 Qd R 207; O'Chee v Rowley 142 FLR 1 (Rowley v O'Chee) at 222, 227; 14, 18.

6. After quoting a passage from Re Opel,[61] her Honour said:[62]

A document will be protected by parliamentary privilege when it is created "for purposes of or incidental to ... the transacting of the business of a House ... " in s 16(2) of the Act. That phrase does not transform every action of a parliamentarian in the pursuit of his or her vocation into proceedings in Parliament: Rowley v O'Chee at 221, 12 per McPherson JA. Nor is it established if a document prepared for a non-parliamentary purpose is later used in Parliament: Carrigan v Cash [2016] FCA 1466(Carrigan) at [45] referring to In the matter of the Board of Inquiry into Disability Services (sub nom Szwarcbord v Gallop [2002] ACTSC 28; (2002) 167 FLR 262 at [21]- [22] per Crispin J. > > The focus is thus on the purpose for which the document was created, or the act was done. That is a question of fact which requires an assessment of the subjective purpose of the actor in question: Carrigan at [44] per White J (confirmed on appeal: see Carrigan v Cash [2017] FCAFC 86). This subjective element is why the affidavit evidence as to the circumstances in which the document in question came to be created may be critical to whether a claim can be maintained.

7. That decision built on the analysis of Jagot J who endorsed the significance of the connection of the document to the proceedings of parliament in Sportsbet v NSW (No 3).[63] Connection may be taken from content or from the face of the document.[64] Her Honour found that where the connection between the documents and the business of parliament is "distant and tenuous" the documents may not be protected.[65]

Jagot J was called upon to assess a document labelled Exhibit CM1, Vol 2, 56 which was a note for a Minister's use in parliament. Her Honour said:[66] > > ... I accept that one document as identified above (Exhibit 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 v O'Chee, I consider that the privilege protects the document from disclosure and not mere use ...

8. This approach is consistent with the decision in Ellis v The King,[67] in which the Court of Appeal considered parliamentary privilege in respect of unredacted copies of allowance claim forms that were held by the Finance Section of the Parliamentary Joint Service Division, these documents were sought to be tendered by the prosecution.[68] Separately, the Speaker of the House of Assembly tabled a bundle of documents which included copies of the claim forms that had been printed and redacted by hand.[69] The unredacted copies sought to be tendered were received by the Finance Section prior to Parliament tabling the latter documents. While the Court held that the tabled documents did attract privilege by reason of the Speaker tabling them in circumstances where the tabling occurred 'as a consequence of, and in response to, the transacting of the business of the House',[70] the unredacted documents sought by the prosecution were not created for the purpose of being tabled in Parliament.[71] The subsequent tabling of copies of the documents could not 'cas[t] a backward light over the original such as to alter the purpose for which the original was created',[72] the unredacted documents did not attract privilege as they were not created and stored for a purpose of or incidental to the transacting of the business of a House or of a committee.[73]
9. Applying these concepts to the freedom of information framework, I am satisfied that it is not contemplated in the FOI Act that the use by the end recipient of the documents is required to be known in order for an assessment to be made that an infringement will occur. Indeed, the use of the words "public disclosure" in the chapeau of clause 17 of Schedule 1, establishes that Parliament has recognised that the use to which the end recipient will put the documents will not necessarily be known. For that reason, the legislature directs in the chapeau to clause 17 that the documents are to be assumed to be publicly disclosed. I consider that the approach taken by Jagot J in Sportsbet v NSW (No 3) and Kourakis CJ in CPB Contractors Pty Ltd v SA,[74] when extrapolated to the circumstance of disclosure by an FOI officer to an FOI applicant, has the result that no particular harm is required to be established where documents fall within the class of documents that are closely connected to the proceedings of Parliament.
10. It follows that the content of a document is not necessarily the determinant of its privileged status. Privilege may arise from the purpose of a document's creation and, if the author is not the user of the document, the adoption of that purpose by the Member of Parliament or witness in parliamentary proceedings.
11. That focus is the document and its connection to Parliamentary proceedings, rather than the subject matter within it or any other version of the document that may have been created with similar content. To shift the focus of the exercise to a consideration of the content of the document is to undermine the rationale of the privilege, which is the protection of the processes of parliament and in particular, the freedom of debate.
12. It is not strictly necessary to consider whether evidence of harm will ever be required in order to establish whether clause 17(c) is enlivened. This is because documents 5 and 6 are of such a nature as to come squarely within the class of document that does not require any further proof of harm to the operations of the Parliament to enliven the exemption.
13. It remains open to be determined in a future matter whether there may be circumstances in which the connection between the document and the proceedings of Parliament does not allow of an immediate conclusion, and can only be reached on the basis of evidentiary material.

1. Documents 5 and 6 have been established to have been created for the purpose of briefing a witness to a parliamentary committee. The documents attract parliamentary privilege. In the circumstances of the clear purpose of their creation, their public disclosure would infringe the privilege and they are exempt.
2. The determination of the Ombudsman is set aside in respect of documents 5 and 6. In substitution, the Tribunal makes a determination that the documents are exempt pursuant to clause 17(c) of Schedule 1 of the FOI Act.

Correction request to Tribunal's decision dated 21 October 2024

1. Mr Patrick raised a separate issue in his further written submissions in relation to my decision of 21 October 2024. At paragraph [23] of those reasons, I stated that the respondent contended that documents 5 and 6 do not attract parliamentary privilege. Mr Patrick submitted that his position was that the documents did not attract the exemption, but had accepted in his original submissions that the documents were closely connected to proceedings in parliament and that they would "attract parliamentary privilege". That distinction has been recognised in this decision but to the extent necessary, I acknowledge that paragraph [23] of my reasons dated 21 October 2024 fails to accurately describe his position. That has not had a material bearing on the outcome of this decision.

1. Pursuant to s 37(1)(c)(i) of the SACAT Act, the Ombudsman's decision dated 14 December 2023 is set aside in respect of documents 5 and 6. In substitution, the Tribunal makes a determination that the documents are exempt pursuant to clause 17(c) of Schedule 1 of the FOI Act.

[2] Department for Environment and Water v Patrick [2024] SACAT 73.

[3] The submission dated 4 February 2025 was a note supplementing Mr Patrick's reply submissions dated 24 January 2025.

[4] Now Hon Justice S McDonald, Federal Court of Australia.

[5] Department for Environment and Water v Patrick (n 2).

[7] [2009] HCA 41; (2009) 239 CLR 27 (Hayne, Heydon, Crennan and Kiefel JJ).

[12] (2023)143 SASR 303, [9] (Lovell, Doyle and David JJA).

[13] [2021] WASC 223 ('President of Legislative Council of Western Australia v CCC (No 2)').

[15] Department for Environment and Water v Patrick (n 2).

[16] This term derives from Article 9 of the Bill of Rights 1689 (1 Wm &M, s 2, c 2); See paragraph [25] onwards of Department for Environment and Water v Patrick (n 2).

[17] Mees v Roads Corporation [2003] FCA 306; (2003) 128 FCR 418, [76].

[18] [2012] NSWADT 69 (JM Isenberg) ('Tziolas').

[19] Government Information (Public Access) Act 2009.

[20] Ibid s 5.

[21] Ibid s 14.

[24] [2010] NSWSC 142; (2010) 77 NSWLR 128 ('Re Opel').

[25] Tziolas (n 18) [36].

[27] [2015] NSWCATAD 95 (SM J Lucy) ('Tebbutt').

[29] [2009] FCA 1283; (2009) 262 ALR 27 ('Sportsbet v NSW (No 3)').

[30] Tebbutt (n 27) [71]-[72].

[31] [2023] NSWCATAD 135 (SM C Mulvey) ('Zonnevylle').

[33] Tebbutt (n 27); Re Opel (n 24).

[34] Zonnevylle (n 31) [166]-[168].

[35] [2012] WAICmr 10.

[39] [2003] FCA 306; (2003) 128 FCR 418.

[41] (n 13).

[43] Enid Campbell, Parliamentary Privilege (Federation Press, 2003) 21.

[48] See footnote 45.

[49] (n 29).

[50] [2024] SASC 46 ('CPB Contractors Pty Ltd v SA').

[51] (n 13).

[53] (1997) 142 FLR 1, 12-16.

[54] (n 50).

[59] [2018] ACTSC 252; (2018) 337 FLR 390.

[61] (n 24).

[63] (n 29).

[67] [2023] SASCA 28 (Livesey P, Bleby JA and Nicholson AJA).

[74] Sportsbet v NSW (No 3) (n 29); CPB Contractors Pty Ltd v SA (n 50).