Additional evidence
13 The plaintiff sought to introduce further evidence and refer the court to certain parliamentary debates. There was no objection to the prints of the Community Protection Bill (Ex A) being tendered in evidence. However, the plaintiff sought to tender Legislative Council Second Reading Speech LC 2 R 15 November 1999, 4951-7, 4964-73; Legislative Council, Second Reading, Com 16 November 1994, 5091-5105; Legislative Council Report, Com, 3R 17 November 1994, 5200-5206; LA 1R 17 November 1994, 5285, LA 2R 23 November 1994, 5649-51 and Legislative Assembly, Second Reading, 2R, RS 2 December 1994, 6278 on two bases, namely firstly that they do not have to go into evidence as they form part of the public record or alternatively that they be tendered in evidence to show that there is material to go before the jury to show that the legislation was introduced for an improper purpose. The first defendant objected on the grounds that these extracts from Hansard are not being used to assist in the interpretation of legislation. It is also my view that these documents are not being tendered to assist in the interpretation of the Act. They are not required to assist the court. The second reason that the first defendant objects to these documents being used by the plaintiff is that they constitute fresh evidence and no reason has been given as to why they were not tendered before the registrar. If fresh evidence is to be introduced it does not form part of the review. It would be referred back to Registrar Irwin for determination.
14 Finally, and in my view most importantly, this document should not be admitted into evidence because it offends paragraph 9 of the Bill of Rights and the right to freedom of speech and Parliamentary privilege. In R v Jackson [1987] 8 NSWLR 116, a crown prosecutor proposed to tender pp 2134 and 2136 of Hansard of 1 November 1983, to show that statements made in evidence by Mr Jackson in his criminal trial were patently untrue. The Bill of Rights 1688, Art 9, which is incorporated by reference into the statute law of New South Wales by the Imperial Acts Application Act 1969, s 7 and the Second Schedule Pt 1. Article 9 (in modern speech) provides "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 parliament."
15 In Mundey v Askin (1982) 2 NSWLR 369 at 373 the Court of Appeal stated:
"…It was submitted that this tender in some way constituted a breach of Parliamentary privilege, and reliance was placed upon Church of Scientology of California v Johnson-Smith [1972] 1 QB 522. There it was held that what was said or done in Parliament in the course of proceedings there could not be examined outside Parliament for a purpose of supporting a cause of action even though the cause of action itself arose out of something done outside Parliament. The reason for its exclusion is, no doubt, to prevent any inquiry into the motives or intentions of Members of Parliament in anything they said or did in the House. But that principle has nothing to do with the present case. Here Hansard tendered to prove, as a fact, that certain things had been said in the course of a debate in the legislative Assembly. There was no question of any further examination of the circumstances in which the debate had taken place or the motives of the participants, or of anything else which might infringe the privilege of Parliament. The ratio of Johnson-Smith's case therefore does not apply. Indeed, in that case (at 531) Brown J said this:
'But the Attorney-General limited what he said about the probable attitude of Parliament to the use of Hansard by agreement by saying that Hansard could be read only for a limited purpose. He said it could be read simply as evidence of fact, what was in fact said in the House, on a particular day by a particular person.'
That was precisely the use to which this exhibit was intended to be put. Accordingly, we dismiss the appeal with costs."
16 The purpose of introducing Hansard into evidence in the case before me is to examine the motives of anything said or done in the House. I am bound by this principle enunciated above. I refuse to allow the extracts from Hansard to be introduced into evidence firstly because there is no explanation as to why they were not put before Registrar Irwin, and secondly, they are not being used to assist in the interpretation of legislation as in Mundey but rather to examine the motives of what was said and done in the House.