O'Chee v Rowley [1997] QCA 401

Court of Appeal (Qld)|1997-11-04|Before: Before Fitzgerald P, McPherson J, Moynihan J, Mr J, Fitzgerald P

The circumstances giving rise to this appeal are set out in the reasons for judgment of McPherson J.A. I agree with his Honour that Senator O'Chee's appeal should be allowed, but do not agree that Mr Rowley's summons for discovery should be dismissed. In my opinion, the summons should be adjourned to the Chamber Judge to enable Senator O'Chee to file a further affidavit concerning the circumstances on which his claim to privilege[1] is based and/or for the Chamber Judge to inspect the documents. This is an area of the law of fundamental importance, involving as it does a collision between a citizen's rights to his or her reputation and to use the courts and their process to vindicate that reputation, and parliamentary privilege, including protected freedom of speech. In my opinion, it is unsatisfactory for the Court to attempt to resolve the complex issues which are potentially involved in the artificial and uncertain situation which has been produced by the parties' conduct of this interlocutory dispute. I am confirmed in this view by the information provided to the Court that there is no direct judicial authority on those issues, and that there is a disagreement between the authors of leading texts.

Senator O'Chee has been sued for defamation by Mr Rowley. The action relates to an alleged radio broadcast by Senator O'Chee on 16 June 1995. Mr Rowley's statement of claim contains an allegation that the statements attributed to Senator O'Chee were published "with an absence of good faith and in contumelious disregard of [Mr Rowley's] rights".[2] Senator O'Chee's defence denies various of Mr Rowley's allegations, including that quoted, but does not plead any substantive defences. Senator O'Chee has disclosed that he has various documents in his possession which are "directly relevant" to an issue[3] in the action.[4] However, he has claimed privilege from disclosure[5] of 43 of those documents[6] by affidavit.[7] While he was required to know the facts giving rise to the claim,[8] he has not deposed to primary facts.[9] Instead, the affidavit effectively asserts eight alternative conclusions which substantially repeat part of the language of sub-s. 16(2) of the Parliamentary Privileges Act, 1987 (Cth.). [10]

No attempt is made by Senator O'Chee's affidavit to identify which of the eight possible conclusions sworn to is applicable to each of the 43 documents for which privilege is claimed. If some of the asserted conclusions support a claim for privilege but another or others do not, it is impossible to discern from Senator O'Chee's affidavit which documents are privileged from disclosure and which are not. As the Trial Division Judge from whose order for disclosure this appeal is brought noted, some of the documents antedated and others postdated speeches in the Senate by Senator O'Chee on 8 and 19 June 1995,[11] and none of the documents has been tabled in either House of the Commonwealth Parliament or been submitted to a committee of either House.

While an affidavit claiming that documents are privileged from production on a specified ground is generally conclusive, there are well-established exceptions. The affidavit, including the description of the documents for which privilege is claimed, the pleadings, other documents discovered, or an admission by the person by whom the affidavit is made might indicate error in the affidavit; for example, that a claim for privilege is misconceived. An affidavit claiming privilege is also not conclusive if it does not state the facts on which the claimed privilege is based. The Court may inspect the documents to determine the validity of the claim for privilege.[12] Although R.S.C. O. 35 makes no express provision for an order for a further affidavit, I do not doubt that it is permissible to receive a further affidavit from a person claiming privilege to enable the claim to be properly made.[13] Demonstrated error in argument relied on to support a claim for privilege and an omission to swear to the circumstances on which the claim is based plainly justify rejection of the conclusiveness of the affidavit by which the claim was made.

Although sub-s. 16(1) of the Parliamentary Privileges Act[14] leaves open the possibility that article 9 of the Bill of Rights had, and continues to have, a wider operation than sub-ss. 16(2), (3) and (4) of the Act, it is not easy to see what scope is left to article 9 except that "place out of Parliament" in article 9 might be wider than "tribunal" in s. 16 of the Act. The judgment of this Court in Laurance v. Katter[15] gives no support to the notion that there is some other residual operation left to article 9.[16] Neither the intent of the Parliamentary Privileges Act, to remove doubt concerning the ambit of article 9, nor the wide terms in which sub-ss. 16(2), (3) and (4) of the Act are expressed, which form an important part of the context in which sub-s. 16(1) must be construed, suggest that article 9 has some additional effect which has not been identified in over 300 years. However, I do not think it necessary to express any final conclusion on that issue.

Senator O'Chee's claim to privilege asserted that the documents to which it related "were created, prepared, brought into existence or came into [his] possession for the purposes of or incidental to the transacting of the business of the Senate in the Parliament of Australia". Creating, preparing, bringing into existence or coming into possession of a document is an "act" within the meaning of sub-s. 16(2) of the Parliamentary Privileges Act. An act "done ... for the purposes of ... the transacting of the business of" the Senate is a "proceeding in Parliament".[17] So is an act "done ... incidental to ... the transacting of the business of" the Senate.[18] Article 9 of the Bill of Rights provides[19] that "... proceedings in Parliament ought not to be impeached or questioned in any court ...". The literal result of a combination of the material portions of the prohibition in article 9 of the Bill of Rights and sub-s. 16(2) of the Parliamentary Privileges Act is that, if his statements in his affidavit are accepted, Senator O'Chee's creation, preparation, bringing into existence or coming into possession of documents "for the purposes of or incidental to" his speeches of 8 and 19 June 1995 cannot be "impeached or questioned" in Mr Rowley's action.[20] That proposition formed the basis of one aspect of Senator O'Chee's argument, but was not the foundation of his primary argument. It is convenient to postpone consideration of that primary argument, and to discuss briefly the argument related to the combination of the definition of "proceedings in Parliament" in sub-s. 16(2) of the Parliamentary Privileges Act with the prohibition in article 9 of the Bill of Rights on impeaching or questioning "proceedings in Parliament".

I did not understand this part of the Senator's argument to contend that the documents are privileged from disclosure because Mr Rowley requires them for the purpose of impeaching or questioning, at trial, the Senator's conduct in creating, preparing, bringing into existence or coming into possession of the documents. Indeed, there is no factual basis upon which such a contention could be made by the Senator. The argument was that a requirement of disclosure of documents itself impeaches or questions the "acts" of creating, preparing, bringing into existence or coming into possession of those documents, and is prohibited because the documents were created, prepared, or brought into existence by Senator O'Chee, or came into his possession, for the purposes of or incidental to his speeches in the Senate on 8 and 19 June 1995.

While there is force in this argument insofar as it relates to the preparation[21] of documents by Senator O'Chee,[22] and perhaps documents prepared on his behalf, many of the documents patently are not of that description. The position with respect to those documents is much more problematic.

Significantly, the Senator's claim to privilege in relation to documents which were not prepared by him or on his behalf is expressed in the passive tense. It is not suggested that he sought and obtained those documents, but is stated that they "came into [his] possession". 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; for example, the documents included at least ten documents dated after the material period,[23] including a copy of a letter to the editor of a Sydney newspaper, together with an undated copy of a Discussion Paper from the New South Wales Recreational Fishing Advisory Council and copies of various documents exchanged between other parties. 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".

Senator O'Chee's primary argument was related to the prohibition in article 9 on impeaching or questioning "speeches and debates ... in Parliament". The manifest objective of the argument was to prevent Senator O'Chee being questioned, at trial, on the issue, earlier referred to, concerning whether the statements which he is alleged to have made in the radio broadcast were published "with an absence of good faith and in contumelious disregard of [Mr Rowley's] rights". To that end, the argument sought to prevent him being questioned on the information which he had as a basis for his alleged statements. It was submitted that parliamentary privilege is a "testimonial privilege", that an order for disclosure of documents is a "direct substitute" for a question at trial asking what information was the basis of his statements, and that, especially having regard to the timing of the radio broadcast,[24] that question was tantamount to asking what information was the basis of the parliamentary speeches; the identification of the information relied on for the statements allegedly made by radio broadcast would inferentially identify the information which was the basis of the Senate speeches.

If Senator O'Chee's primary argument is correct, then, irrespective of his disclosure or non-disclosure of any documents, he cannot be asked what information he had as the basis of his alleged statements in the radio broadcast merely because of the circumstance that, shortly before and after the broadcast, he spoke on the same subject in the Senate. The issue of disclosure of documents is a subsidiary consideration on Senator O'Chee's primary argument; the documents might, for example, facilitate cross-examination, but only if the issue of the information available to the Senator at the time of the radio broadcast is a legitimate issue at the trial of this action. Interestingly, no attack has been made on Mr Rowley's statement of claim to suggest that such an issue cannot be pursued in the circumstances; on the contrary, Senator O'Chee has sworn to the possession of relevant documents apparently related to the issue. 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 published "with an absence of good faith and in contumelious disregard of [Mr Rowley's] rights".[25]

Mr Rowley does not seek to challenge, criticise or question Senator O'Chee's preparation or coming into possession of the material documents, or his parliamentary speeches, which are wholly irrelevant to Mr Rowley's pleaded case and have not been raised by Senator O'Chee in his defence. If given effect , the primary argument for Senator O'Chee's claim to privilege would expand the boundaries of parliamentary privilege to limits which are, to my mind, unnecessary, excessive and unsupported by authority and not within the statutory language. In my opinion, that argument is incorrect.

In the circumstances, the claim to privilege should not be accepted on the basis of Senator O'Chee's present affidavit. On the other hand, I consider that the Senator should be permitted an opportunity to make a further affidavit, with proper particularity, so that any claim for privilege which he wishes to maintain can be duly considered.

The appeal should be allowed, the order for disclosure set aside, and the summons remitted to the Chamber Judge with leave to Senator O'Chee to swear and file a further affidavit. The costs of the proceedings on the summons to this point should be reserved to the Chamber Judge.

1. Facsimile letter from Peter Goadby to Senator O'Chee undated

2. Facsimile letter from Peter Goadby to Senator O'Chee undated

3. Discussion paper area "E" - New South Wales Recreational

4. Diary note of attendance on constituent undated

5. Letter David Beddall, MP to Senator O'Chee undated

6. Copy letter from Hans Jucceit. CFAC Tuna Delegate to AFMA

7. Letter from Hon. David Beddall to Senator O'Chee undated

8. Letter from C Bridges to Senator O'Chee undated

9 Copy letter from Pacific Ocean Research Foundation

(Peter Fithian, Chairman) to AFMA (Mr Richard Stevens,

10. Copy facsimile transmission from Queensland Department of

Primary Industries (Geoff McPherson) to Brad Craft re

11. Copy facsimile from Pepperell Research & Consulting Pty Ltd

12. Copy letter from the Cairns Professional Game Fishing

Association Inc to the Queensland Fisheries Management

13. Copy letter Cairns Professional Game Fishing Association Inc

14. Copy letter from the Cairns Professional Game Fishing

15. Copy letter from the Cairns Professional Game Fishing

16. Letter from the Queensland Charter Vessel Operators'

Association, Brisbane to AFMA (Mr Ian Freeman) 11.05.95

17. Letter from M.V. Mantaray to AFMA (Mr Ian Freeman) 16.05.95

18. Letter Cairns Professional Game Fishing Association Inc to

19. Letter from Cairns Charter Boat Services Pty Ltd to AFMA

20. Letter from the NSW Game Fishing Association Inc to AFMA

21. Letter from the Cairns Professional Game Fishing Association

22. Letter from Kirsten Charters to AFMA (Mr Ian Freeman) 18.05.95

23. Letter from P & M Williams Enterprises (NQ) Pty Ltd

24. Letter from the Australian Recreational & Sport Fishing

Confederation Inc to AFMA (Mr Ian Freeman) 19.05.95

25. Internal memo from Diane to Senator O'Chee 06.06.95

26. Copy letter from Fortuna Fishing Pty Ltd to the Cairns Post 10.06.95

27. Facsimile from Cairns Professional Game Fishing Association

28. Diary note of telephone conversation with AFMA re

29. Excerpts of Mike Rowley interview by Chris Hill 14.06.95

30. Diary note of telephone conversation with Queensland Harbours

31. Diary note of telephone conversation with AFMA 14.06.95

32. File note of telephone conversation with Ken McEuen 15.06.95

34. Copy letter from Senator O'Chee to Mr Jim Morton 03.07.95

35. Facsimile from the Australian Fishing Tackle Association Inc to

36. Copy letter Senator O'Chee to Mr John Dunphy 06.07.95

37. Letter from Hon. Wendy Machin MP to Senator O'Chee 26.07.95

38. Letter from Senator O'Chee to Hon. Wendy Machin MP 07.08.95

39. Letter from Hon. Wendy Machin MP to Senator O'Chee 14.08.95

40. Copy letter from Ms T Alexander to the Editor, Sydney

41. Copy letter Marshall Brentnall to AFMA 28.08.95

42. Copy letter Marshall Brentnall to David Beddall MP 04.09.95

43. File memo of telephone conversation with Annabelle Thurlow 28.09.95

This is an appeal from an order made in the Supreme Court that the defendant produce for inspection each document set out in section B of an affidavit of disclosure sworn by the defendant in this action.

The defendant is Senator William O'Chee, who is a member of the Senate of the Australian Parliament and a senator for the State of Queensland. The action brought against him claims damages for defamation and was commenced by writ issued on 4 August 1995 out of the Cairns District Registry of the Supreme Court of Queensland. The plaintiff is Michael Rowley. The statement of claim delivered on 25 August 1995 contains allegations, which are admitted in the defence, that the plaintiff is a member of the East Coast Tuna Management Advisory Committee of the Australian Fish Management Authority; a professional fisherman; and a shareholder and director of Fortuna Fishing Pty. Ltd. and Fortuna Seafoods Pty. Ltd.

Senate business. According to an extract from Weekly Senate Hansard dated 8 June 1995, Senator O'Chee during the Senate sittings on that day asked a question without notice concerning the Advisory Committee (which is known by the acronym ECTUNAMAC), which he described as "a government advisory panel". The question, which was directed to Senator McMullan, the Minister in the Senate representing the Minister for Resources, referred to that fact that on 15 June 1995 the Advisory Committee would be considering a proposal to allow "open slather" longline fishing in an area off the coast of North Queensland designated TEC4 area E. The area had, Senator O'Chee informed the Senate, been closed off to longline fishing in 1980 to prevent depletion of marlin and other billfish. Was the Minister aware, Senator O'Chee asked, that the proposal had been put to the board of the Advisory Committee by one of its board members, Mr Rowley, from New South Wales, "who appears to have a massive conflict of interest"? The Senator went on to refer to a photograph or photographs he produced showing a billfish being unloaded from one of Mr Rowley's boats, and a decapitated marlin being loaded into a bin marked with the name of one such boat. He asked what action the government would take to ensure that at the ECTUNAMAC meeting Mr Rowley did not vote on his own submission, and that "this activity does not continue".

Senator McMullan replied that he would seek a brief from the Minister for Resources on the matter and would supply a response to the question. Senator O'Chee went on to ask a further question, which was whether the Minister would acknowledge that the proposal was opposed by various named fishermen's organisations in Queensland, and whether the government would undertake to oppose any increase in longline fishing efforts in the designated area, or would side with Mr Rowley, whose environmental and ethical standards, Senator O'Chee said, were "clearly questionable". Senator McMullan said he would ensure that those matters were considered by the Minister.

According to the Weekly Senate Hansard for 19 June 1995, Senator O'Chee again addressed the Senate on the same matter in the following week in the course of what appears to have been a debate on the subject. He referred to the photographs produced to the House on the previous occasion, and went on to say that, because of decapitation of the fish depicted, it was not possible for experts to identify it; but, of a number of experts who had examined the photographs, not one believed that the fish in question was or were striped marlin. It appears that striped marlin, but not blue or black marlin, are a variety of billfish that may be taken in the area. He further tabled a letter dated 10 June 1995 from Mr Rowley to the Cairns Post saying that his vessels were fishing in area E and would continue to do so. The Senator went on to refer to Mr Rowley's activities and to say that searches (which he tabled) of some of Mr Rowley's companies, including Fortuna Seafoods Pty. Ltd., showed they were in effect controlled by a resident or residents of Taiwan. He accused Mr Rowley, in the interests of foreigners, of bringing about damage to an important protected industry. He added a series of unflattering remarks about Mr Rowley.

Action instituted. That was on 19 June 1995. In the meantime, on or about 16 June 1995 Senator O'Chee had, it appears, been interviewed for a news item on Radio HCA Cairns, in the course of which (or so it is alleged) he referred to the value of the game fishing industry and the opposition to commercial fishing in protected marlin fishing fields. He described Mr Rowley as having made himself "so obnoxious" that he hadn't any friends in North Queensland, and (as is alleged) compared his popularity in that part of the country unfavourably with that of Jacques Chirac.

It was in respect of these broadcast words that Mr Rowley instituted the defamation action on 4 August 1995. Before the writ was issued, Senator O'Chee had already moved a reference to the Senate Privileges Committee of what were alleged to be threats of proceedings by Mr Rowley against a named individual who was said to have supplied information to the Senator. According to the Hansard for 22 August 1995, the matter was taken up and so referred, and is presumably still under the consideration of that Committee. Whether or not there has been a breach of privilege is not a question that falls to be considered on this appeal.

Meanwhile, Mr Rowley's defamation action against Senator O'Chee has been proceeding to trial. On 15 January 1996, Mr Rowley took steps to obtain, by compulsory process of the Court, the production by Cairns Radio Ltd. of records of the news item broadcast on 16 June 1995. His solicitors also required that under O.35 of the Rules of the Supreme Court the Senator disclose each document in his possession or under his control that was directly relevant to allegations in issue in the action. After some delay, a summons to compel disclosure by furnishing a list of documents was issued on 9 May 1996, and on the same day a list of documents was provided by Senator O'Chee under cover of a letter (ex. VAM 13) from his solicitors.

Claim to Parliamentary privilege. The list was accompanied by an affidavit sworn by Senator O'Chee, in para.2(b) of which he objected to producing documents set out in section B of the schedule, which is headed "Parliamentary Privilege". From the fact that the documents have been disclosed by the defendant in the action, it may be accepted they are relevant to issues in the action. The defence, which consists almost entirely of denials, does not plead truth and public good, or fair comment, or any of the other defences commonly encountered in an action like this. It follows as a matter of inference that the documents must be relevant in some way to an issue or issues concerning the words complained of as defamatory or their publication, those being the words allegedly published by Senator O'Chee about Mr. Rowley in the news items said to have been broadcast on Cairns radio on 16 June 1995.

On the face of it, therefore, the Senator was, in terms of O.35, bound to produce the documents for inspection. However, in para.2(b) of his affidavit he claimed to justify his refusal to do so on the ground:

"... that such documents were created, prepared, brought into existence or came into my possession for the purposes of or incidental to the transacting of the business of the Senate of the Parliament of Australia."

Some of the words used in this formula are taken almost verbatim from the language of 16(2) of the Parliamentary Privileges Act 1987 (Cth) - the Act of 1987 - although it may in passing be noted that s.16(2) speaks of acts done "for purposes of" transacting business, and not "for the purposes of ...". In taking an objection like that, it may not be enough for the deponent, without more, simply to repeat language from the statute; but even if para.2(b) may be thought in some way to be at fault in that respect, it would no doubt be appropriate, if need be, to afford the defendant an opportunity of filing another affidavit that is more specific in its terms. As it is, the dates and descriptions given in the list suggest that many of the listed documents are concerned with the same matter as was the subject of the questions and address in debate by Senator O'Chee in the Senate on the two dates in June 1995. The Senator has sworn that the documents were created, etc. for purposes of or incidental to the transacting of Senate business; and, since there is no evidence of any other business to which those documents are apparently capable of relating, it is reasonable to suppose that he was intending to identify as Senate business the matters raised by him on those two occasions.

The Act of 1987. The learned primary Judge held that the privilege claimed was not available to Senator O'Chee and ordered the documents to be produced for inspection. The question on appeal is whether the documents in section B of the affidavit attract the privilege that is claimed for them. Article 9 of the Bill of Rights 1688, as Davies J.A. stated it in modern form in Laurance v. Katter [1996] QCA 471; (1996) 141 A.L.R. 447, 488, 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".

The enactment of the Bill of Rights was the culmination of a long struggle with the executive over the right to freedom of speech in Parliament in England. Its primary purpose was to ensure that members were not subjected to pains or penalties for what they said in the course of debate or other proceedings in either of the Houses. To that extent, it has always been considered a bulwark of representative government in English-speaking societies. See R. v. Jackson (1987) 8 N.S.W.L.R. 116, 118, 121. At the same time, however, the Parliamentary privilege it confers has a direct impact on the exercise of the right of freedom of speech in the community. In commenting on some of the decided cases on the subject, the Judicial Committee in Prebble v. Television New Zealand Ltd. [1995] 1 A.C. 321, 327, recently said they:

"illustrate how public policy, or human rights, issues can conflict. There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its power freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled, that, of these three public interests, the first must prevail. But the other two public interests cannot be ignored and their Lordships will revert to them in considering the question of a stay of proceedings."

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 [1996] QCA 471; (1996) 141 ALR 447, 489. It set out to achieve that object in a number of ways. There had at one time been at least a shadow of doubt, based partly on the manner and date at which English law including statute law was received in Australia before representative legislatures were established, whether a provision like art.9 of the Bill of Rights applied here. Any difficulty of that kind was set at rest by s.16(1) which "for the avoidance of doubt" declared and enacted that the provisions of art.9 applied in relation to the Parliament of Australia "and, as so applying, are to be taken to have ... the effect of the subsequent provisions of" s.16.

Section 16(2) then proceeded to clarify, or it may be to re-define and perhaps extend, the expression proceedings in Parliament which appeared in art.9 of the Bill of Rights. For the purposes of both art.9 and s.16(2), that expression was declared to mean:

"... all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

(a) the giving of evidence before a House or a committee, and evidence so given;

(b) the presentation or submission of a document to a House or a committee;

(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published."

In Laurance v. Katter [1996] QCA 471; (1996) 141 A.L.R. 447, the competence of Parliament to enact s.16(3) of the Act of 1987 was questioned. The validity of subsection(3) was, however, upheld by a majority of this Court in that instance; but, in any event, it is with s.16(2) that we are concerned on this occasion, and no challenge to its validity was offered by any of the parties appearing before us on this appeal.

The parts of s.16(2) that are relevant here are, first, so much of it as gives to the expression proceedings in Parliament the extended meaning "... acts done ... for purposes of or incidental to the transacting of the business of a House ..."; and, secondly, as gives it the inclusive meaning:

"(c) the preparation of a document for purposes of or incidental to the transacting of any such business".

When read in conjunction with what I have called the extended meaning ascribed in s.16(2) of the Act of 1987, the original art.9 is, as it seems to me, now capable of being reproduced in the following form:

"That [... acts done ... for purposes of or incidental to the transaction of the business of a House] ought not to be impeached or questioned in any court ... out of Parliament."

Another possible way of reproducing s.16(2) in conjunction with art.9 might perhaps be to retain the three initial words, so that it read "the freedom of ... acts done ...". However, judging by the way in which Lord Simon in Pickin v. British Railways Board [1974] UKHL 1; [1974] A.C. 765, 799, italicised proceedings and the succeeding words of art.9, the first version may be the more natural or appropriate reading. The difference between the two alternatives is, in any event, not so substantial as to affect the result in this case. Using s.16(2)(c) first to perform the engrafting operation required by the 1987 Act produces a version of art.9 in the following form:

"[the preparation of a document for purposes of or incidental to the transacting of any ... business (of a House) shall not be impeached or questioned in any court ... out of Parliament."

Because, unlike the House of Lords, neither of the Houses of the Australian Parliament is a court, it becomes legitimate to discard the final three words "out of Parliament".

Preparation of a document: 16(2)(c). The first question then is whether Senator O'Chee can, within the meaning of s.16(2)(c) of the 1987 Act, be said to have engaged in "the preparation of a document", consisting of all or one or more of the documents in section B of the schedule to his affidavit, "for purposes of or incidental to the transacting" of business of a House. At least in the case of some of the documents in section B, that question, to my mind, admits only of an affirmative answer. As to "business", the question the Senator asked and the debate in the course of which he spoke in the House in June 1995 clearly constituted "business" of the Senate that was being transacted on those occasions. Documents 4, 28, 30, 31, 32, 36, 38 and 43 are all either diary notes or file notes of attendances or conversations, or letters written by Senator O'Chee to other persons. To that extent, he "prepared" them or, it may be, arranged for them to be prepared on his behalf. They are among the documents which he swears were "created, prepared [or] brought into existence" for purposes of or incidental to the transacting of Senate business. It might have been possible for him without exposing the contents of those documents to have identified their subject matter more closely with Senate "business"; but, even without his having done so, I consider that a conclusion to that effect can readily be drawn as a matter of objective inference by comparing the dates and descriptions of documents in section B of the affidavit with the extracts from the Weekly Senate Hansards which are in evidence.

The enumerated documents therefore appear to me to satisfy the requirements of s.16(2)(c) by reason of their having (as Senator O'Chee has sworn) been prepared, for purposes of or incidental to the transacting of that business. The expression "purposes" in s.16(2)(c) inevitably introduces an element of subjectivity or intention which, in terms of that provision, must have existed at the time the documents were prepared. If it is necessary to go further and find some independent basis or reason for concluding that they were so prepared, 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. Perhaps item 25 described as "Internal memo from Diane to Senator O'Chee 6.6.95l" may not precisely fit that description; but, if it was created or came into existence, as the Senator swears, for purposes of transacting Senate business, there is no good reason for doubting that it too satisfies the requirements of s.16(2)(c). Alternatively, its preparation may well have been "incidental" to the transacting of the business in question.

Acts done for purposes. The other documents in section B present a slightly different question. They consist principally, if not exclusively, of letters sent by or documents received from other persons or sources. It is not, I think, possible for an outsider to manufacture Parliamentary privilege for a document by the artifice of planting the document upon a Parliamentarian: see Rivlin v. Bilainkin [1953] 1 Q.B. 485; and Grassby (1991) 55 A.Crim.R. 419. The privilege is not attracted to a document by s.16(2) until at earliest the Parliamentary member or his or her agent does some act with respect to it for purposes of transacting business in the House. Junk mail does not, merely by its being delivered, attract privilege of Parliament. That being so, the question again is whether it can properly be said that creating, preparing or bringing those documents into existence were "acts" done for purposes of or incidental to the transacting of Senate business. Although perhaps not all of them would necessarily answer that description, the further expression in para.2(b) of the affidavit "came into my possession" seems apt to describe an "act done". 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.

An objective indication to that effect is provided by a letter (item 26) dated 10.6.1995 from Fortuna Fishing Pty. Ltd. to the Cairns Post, which appears to be the letter of that date ascribed to Mr Rowley in the Weekly Senate Hansard for 19 June 1995 that Senator O'Chee was given leave to table in the Senate; and there is another document (item 29) dated 14 June 1995 described as "excerpts of Mike Rowley interview with Chris Hill", which the maker of it may have prepared in anticipation of the radio broadcast made on or about 15 June 1995. Generally, it seems to me that if documents like these came into the possession of Senator O'Chee and he retained them with a view to using them, or the information they contain, for the purpose of Senate questions or debate on a particular topic, then it can fairly be said that his procuring, obtaining or retaining possession of them were "acts done ... for purposes of or incidental to the transacting of the business" of that House. Although "acts done" is not specially apt to describe what happens when a possibly unsolicited document arrives through the mail or by other forms of communication, a member who becomes aware that the document has arrived and elects to keep it for purposes of transacting business of a House, may properly be said to have done an "act" or "acts" for purposes of, or incidental to, the transacting of that business.

Some of the documents (nos. 34 to 43) in section B bear dates from and after 3 July 1995 (which is after 19 June 1995 when the "business" of marlin fishing was last discussed in the Senate) through to 28 September 1995. The question may be posed of how such documents could attract privilege after that business had apparently ceased to be transacted. But, although a stage may be reached after which the preparation, receipt or retention of documents cease to be acts connected with or incidental to that or any other business being or to be transacted, it is evident that in many instances the line cannot automatically be drawn at the last occasion on which the matter was raised in the House. The possibility of further debate on the same subject in future may provide a reason for supposing that privilege continues to attach to documents received and retained or other acts done with the relevant purposes in mind. However that may be, the lapse of a period of two to three months in this instance does not seem to me to be a sufficient reason for doubting the Senator's unchallenged oath that documents 34 to 43 were created, brought into existence, or came into his possession, for purposes of and incidental to the transacting of the business of the Senate. In my opinion, therefore, the document in section B, in the circumstances in which they were prepared or came into the Senator's possession, satisfy the description "proceedings in Parliament" in terms of s.16(3).

Impeaching proceedings. The remaining and perhaps more difficult question is whether the production, under compulsory process of the court, of the documents in section B falls within the scope of Parliamentary immunity. For this purpose it is necessary to revert to art.9 of the Bill of Rights. It provides that "proceedings in Parliament ought not to be impeached or questioned in any court". The effect of the engrafting operation carried out by s.16(2)(c) is to require that that prohibition should be read as meaning that "the preparation of a document for purposes of or incidental to the transacting of" the business of the Senate "ought not to be impeached or questioned in any court".

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 1689. 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 (NSW) v. Yuill [1991] HCA 28; (1991) 172 C.L.R. 319, 322-323, "is to read it in the sense which would have 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 [1996] QCA 471; (1996) 141 A.L.R. 447, 490; and either it or any of the other meanings mentioned first and second in the Oxford Dictionary may be used in interpreting art.9.

Retrospective immunity. Is it then the case that compulsory production for inspection of the documents in section B of the Senator's affidavit will hinder, impede or impair an act or acts done for purposes of or incidental to the transacting of Senate business; or detrimentally or prejudicially affect or impair it? On one view, it will not. The discussion of longline fishing for protected marlin in the designated area and of the participation (if any) of Mr Rowley in it, appears, so far as the material before us goes, to have ended in June 1995. The acts of creating the documents or preparing them were, for the most part, over and done by then. But that, in my opinion, is not enough to prevent the immunity conferred by art.9 from continuing to attach to that business, or to documents prepared for purposes of or incidental to the transaction of that business in the Senate at that time. Indeed, if the immunity or prohibition created by art.9 operated only prospectively, and not retrospectively, it would have little utility. Taking as an example freedom of speech or debate, it would mean that a member of either House would be protected before and during the making of a speech, but not after it, which, as experience shows, is the very time when the protection or immunity is most needed. This is specifically recognised in s.16(2), which speaks both of "the giving of evidence before a House", and of "evidence so given". In the same way, the immunity conferred by art.9 must necessarily continue to apply to documents after they have been prepared for purposes of transacting business, as well as after that business has been transacted.

To view the indemnity as available only before or during, but not after, the event would be to turn back the pages of history to the time before 1688. When in 1629 nine members of the House of Commons elected to criticise the government of King Charles I on the last day of the Parliamentary sittings, they found themselves summoned before the Council on the following day to explain their "undutiful and seditious carriage in the Lower House". They had not been prevented from speaking on the previous day, but were now to face the consequences of doing so. According to a recent biography, John Selden, who was one of them, deliberately refused, on being questioned in the Council, to tell the truth (P. Christianson, John Selden at 180-181 (1996)). He remained a prisoner in the Tower until he offered a humble apology in 1634. Some of the other nine members were less fortunate. Strode and Valentine were detained until 1640. Having been convicted of sedition for what he had said in Parliament on that occasion, Sir John Eliot died before being released (Peterson, John Selden, at 191). Other cases of that kind are referred to by Lord Denning, whose account of them is incorporated by Mr G.R. Lock in his paper "Parliamentary Privilege in the Courts" in [1985] Public Law 64, at 87-88.

The possibility that something similar will be repeated is happily now remote. The point of this historical digression is, however, to emphasise that art.9 is intended to operate retrospectively to afford protection for things said or done in the past. If the Bill of Rights had been in force in 1629, Selden could not have been left to languish for years in the Tower for what he had said in Parliament. But that is not the only benefit conferred by Parliamentary privilege. Upon Selden's release from prison, his parliamentary career was at an end. Even if that had not been so, it is fair to suppose that his experience during the preceding four years would have dampened his ardour for criticising the government or other real or imagined evils of the day. The Tower had a "chilling" effect on those who spent time in it.

Prospective operation. Only the more courageous individuals are prepared to speak their minds knowing full well they will suffer for it afterwards. It is equally to the cause of Parliamentary freedom of speech and debate in future that art.9 of the Bill of Rights is directed. Suffering pains and penalties for exercising a right or freedom is calculated to have a deterrent impact on the next occasion on which the right or freedom falls to be exercised. Section 16(2) of the Act of 1987 recognises that the immunity extends to preparing documents and, more generally, to other acts for purposes of or incidental to the transacting of House business. 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. If they are later required to produce or disclose it for inspection under compulsory court process, they are left with only two alternatives to compliance. One is to adopt Selden's course of telling lies. Since disclosure in court proceeds on affidavit, it places them at risk of prosecution and conviction for perjury. The other course is to disclose but then refuse to obey the consequential court order for production of documents. A predictable outcome of such refusal is attachment and imprisonment for contempt of the court's order. It is one of three sanctions provided for non-compliance with such an order. See Rules of the Supreme Court, O.35, r.16(b), read with O.35, r.3. The conflict between legislature and judiciary that would then ensue might threaten to rival Stockdale v. Hansard [1839] EngR 139; (1839) 9 Ad. & E. 1 and The Case of the Sheriff of Middlesex [1840] EngR 539; (1840) 11 Ad. & E. 809. The potential for such conflict tends to appear remote, until the very day it occurs. One branch of government may not be unwilling to measure its strength against the other.

Here nothing like that is threatened yet. Nevertheless, requiring Senator O'Chee to produce for inspection documents of the kind listed in section B of his affidavit, for which Parliamentary privilege is claimed, has an obvious potential to deter him and other Parliamentarians from preparing or assembling documentary information for future debates and questions in the House. In correspondence with the Committee of Privileges and the President of the Senate, which forms part of the material before us, Senator O'Chee claimed that threats of proceedings being taken against his informants had the effect of discouraging them from providing further information about Mr Rowley's activities, and so of restricting the Senator's ability to pursue the subject in the House. The material is not sworn to, but it was not the subject of objection below, and it conforms with what one would expect in those circumstances. Senator O'Chee could no doubt have avoided some, although perhaps not all, of these consequences by confining his remarks to Parliament and refraining from discussing the subject on public radio. Then Mr Rowley could not have sued him for defamation. But the privilege he claims belongs not to his informants, nor even solely to the Senator himself, but to Parliament: see Sankey v. Whitlam [1978] HCA 43; (1978) 142 C.L.R. 1, 36-37. If it extends to the matters for which it is claimed here, it may be doubted whether an individual member of the House has authority to waive it unilaterally . The privilege under s.16(2) attaches when, but only when, a member of Parliament does some act with respect to documents for purposes of, or incidental to, the transacting of House business.

Section 16(4). In my respectful opinion, in these circumstances, Parliamentary privilege under the Act of 1987 and art.9 operates to relieve Senator O'Chee from producing the documents in section B of his affidavit for inspection by Mr Rowley or his solicitors. The only consideration that weighs against that conclusion arises from the presence in the Act of 1987 of s.16(4). It provides:

(a) require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or

(b) admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence, unless a House or committee has published, or authorised the publication of, that document or a report of that oral evidence."

It is said that, because s.16(4) imposes a particular inhibition on court orders for production of specific documents, it follows by implication that any further or other limitation on judicial orders of that kind is not excluded; or, in other words, that s.16(4) is intended to be an exhaustive statement on the subject of production of documents to courts. There are, in my opinion, several reasons for rejecting such a contention. One is that sub-s.(4) is specifically directed to orders of the kind made in the Murphy case. They were the particular mischief intended to be suppressed by s.16(4). See Laurance v. Katter [1996] QCA 471; (1996) 141 A.L.R. 447, 489. Another is that the subsection is confined to documents submitted (or prepared for submission) as evidence to, or treated as evidence in, a House, or which contain a record or reports of such evidence. To confine the scope of the privilege to that sphere would so restrict it as to prevent it from applying to some documents that, quite apart from s.16(4), would otherwise plainly enjoy the protection conferred by the more general terms of art.9 or s.16(2). Written notes used in the course of delivering a speech in debate are an obvious example. Although not within the terms of s.16(4), it is difficult to imagine that a court order to produce them for inspection would not impeach freedom of speech or debates in Parliament. The terms in which art.9 and s.16(2) are expressed are much too clear and emphatic to succumb to slight contextual indications of the kind suggested.

Authorities. Reported court decisions on the question in hand are few in number and inconclusive. In both Rivlin v. Bilainkin and Grassby, there was no business being transacted or proceedings in Parliament to which the document was referable. The publication, said McNair J. speaking of the communications in Rivlin v. Bilainkin, "was not connected in any way with any proceedings in the House". One case which in its facts comes some way toward the present is Re Parliamentary Privilege Act, 1770 [1958] UKPC 1; [1958] A.C. 331. Mr G.R. Strauss, who was a member of the House of Commons, wrote a letter to the Paymaster-General, a Minister of the Crown, criticising the conduct of the London Electricity Board. The Paymaster-General arranged to have Mr Strauss's views brought to the attention of the chairman of the Board. That done, the Board's solicitors acting on instructions threatened Mr Strauss with proceedings for defamation if an apology was not forthcoming. The Judicial Committee of the House of Lords, to whom a question was referred, held that the House would not be acting contrary to the Parliamentary Privilege Acts of 1700 or 1770 if it treated the issuing of a writ against a member of Parliament in respect of a speech or proceeding by him in Parliament as a breach of its privileges.

The decision is not particularly helpful here because, at the time the question was considered, the writ had not issued, and because their Lordships considered it unnecessary to express an opinion on whether, in writing the letter, Mr Strauss was engaged in "a proceeding in Parliament" within the meaning of art.9 of the Bill of Rights ([1958] A.C. 331, 353). That at least was the view of their Lordships other than Lord Denning. In a book he later published entitled The Family Story (1981), Lord Denning acknowledged that no argument had been addressed to the Judicial Committee on the question whether Mr Strauss's letter was "a proceeding in Parliament". His Lordship nevertheless expressed the opinion that it was. See G.F. Lock, in [1985] Public Law, at 83. Lord Denning's opinion is entitled to the respect due to a lawyer of his eminence and learning. His extra-judicial view on the subject is, however, not authority.

The only other decisions cited to us in which a comparable question has been considered or discussed are Eastland v. United States Servicemen's Fund [1975] USSC 97; (1975) 421 U.S. 491 and Brown & Williamson Tobacco Corporation v. Williams [1995] USCA2 924; (1995) 62 F.3D 408. It is sufficient for present purposes to refer to the second of the two. It arose from the issue of subpoenas to two members of Congress for taking from them a deposition for the purpose of inspecting and copying documents or copies in their possession or control which, it was accepted, had originally been stolen by Williams from attorneys acting for the Tobacco Corporation which had sought the subpoenas. Taking such a deposition is a particular form of discovery in widespread use in the United States. Both as a matter of history and in nature, it resembles the disclosure procedure being used by Mr Rowley in this instance.

The Court of Appeals for the Circuit District of Columbia affirmed a decision quashing the subpoenas. The Court did so on the ground that, to permit the procedure envisaged, would offend the Speech or Debate clause of the Constitution (U.S. Const., art.I, s6, cl.1), which provides:

"for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other place."

The provision has obvious affinities with art.9 of the Bill of Rights 1688, from which it was derived: United States v. Johnson [1966] USSC 30; (1966) 383 U.S. 169, 178; but its rather different form may have influenced the judicial approach to questions arising under it, even if, in the end, some of the conclusions reached are similar to those concerning art.9 of the Bill of Rights. The decision in Brown & Williamson Tobacco Corporation v. Williams is helpful to the defendant here, but only to the extent that it, and other American decisions on the subject, recognise the "chilling" effect that court processes, like that being used by the plaintiff in this action, are capable of having on legislative activity; that is, by "chilling" the ability of Congress "to attract future confidential disclosures necessary for legislative purposes" [1995] USCA2 924; (62 F. 3d 408, 417).

Conclusions. The American decisions recognise an undeniable characteristic of human behaviour. Sources of confidential information quickly dry up when confronted by the prospect of compulsory disclosure in legal proceedings. Acknowledging that to be so, I nevertheless prefer to base my decision on the particular wording of the statutory language in this case. Article 9 of the Bill of Rights prevents proceedings in Parliament from being hindered, impeded or impaired in a court. By s.16(2) of the 1987 Act proceedings in Parliament include the preparation of a document for purposes of or incidental to the transacting of any business of a House. More generally, such proceedings include all acts done for such purposes, together with any acts that are incidental to them. Bringing 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". Senator O'Chee has sworn that, in relation to the documents in section B of his affidavit, he did such things for those purposes. To order him to produce those documents would be to hinder or impede the doing of such acts for those purposes. If the making of the order has not already hindered or impeded the transacting of this matter of Senate business, it is predictable that in future it will do so with respect either to this or to some other matter of business being, or about to be, transacted in a House of the Parliament.

If the decision below is allowed to stand, the next step in the action no doubt will be to administer interrogatories questioning the Senator about the sources or other details of the information on which he based his statements to the Senate. Interrogatories are part of a process of discovery or disclosure of which the production of documents for inspection is simply a particular form. Proceedings in Parliament will inevitably be hindered, impeded or impaired if members realise that acts of the kind done here for purposes of 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.

I would allow the appeal; set aside the order made below; and dismiss the summons for inspection filed by the respondent plaintiff on 4 April 1997. On the question of costs, I agree with the order proposed by Moynihan J.

The appeal should be allowed for the reasons given by McPherson J.A. I concur with Fitzgerald P. however that the claim for privilege should not be accepted on the basis of the appellant's current affidavit and that he should have leave to swear a further affidavit. Any outstanding issue of privilege should then be dealt with by a chamber judge.

The appeal should be allowed and the order for disclosure set aside with leave to swear and file a further affidavit of privilege. The summons should be remitted to a chamber judge. The appellant should have his costs of the appeal. The costs of the proceedings on the summons otherwise should be reserved to the chamber judge.

[1] Together with a claim to "public interest immunity", if one is to be made as indicated in para. 26 of Senator O'Chee's written outline of submissions.

[2] No question has been raised as to the appropriateness of that allegation in the statement of claim.

[4] The argument on behalf of Senator O'Chee indicated that the issue to which at least some of the documents are "directly relevant" is whether Senator O'Chee's alleged statements were published "with an absence of good faith and in contumelious disregard of [Mr Rowley's] rights".

[9] Some of the documents for which privilege is claimed were received by or prepared by other parties, and it is not obvious why, or how, Senator O'Chee would know the material facts.

[10] See also s. 10 of the Evidence Act 1995 (Cth.).

[11] Broadly stated, these speeches related to the same subject as that allegedly discussed by Senator O'Chee on radio on 16 June 1995 in the course of the broadcast in which the defamation of Mr Rowley is said to have been published. Although not spelt out, the argument proceeded on the footing that these speeches were the material parliamentary business for the purpose of Senator O'Chee's claim to privilege.

[14] See also sub-ss. 16(5), (6) and (7) of the Parliamentary Privileges Act.

[15] [1996] QCA 471; (1996) 141 A.L.R. 447. Special leave to appeal to the High Court was granted on 26 June 1997.

[16] See, for example, pp. 481, 484, 488-489.

[17] Parliamentary Privileges Act sub-s. 16(2). In addition to the introductory words, see sub-s. 16(2)(c).

[20] Article 9 appears to relate "freedom" to "speech" or "speech and debates", (cf. British Railways Board v. Pickin [1974] UKHL 1; [1974] A.C. 765, 799), but it would make no significant difference in the present case if "freedom" also related to "proceedings in Parliament".

[21] Creating and bringing into existence can conveniently be subsumed under preparation.

[22] Especially, perhaps, if sub-s. 16(2)(c) relates back to the introductory words of sub-s. 16(2), and not merely to sub-ss. 16(2)(a) and (b).

[23] The relevance of these documents to Senator O'Chee's state of mind at the time of the radio broadcast is not evident, but perhaps it is that an omission to correct what had been said if called in question by later information would be material.

[24] According to Mr Rowley's statement of claim, between the Senator's two speeches in Parliament.

[25] The privilege does not belong to, and cannot be waived by, Senator O'Chee.

Parliamentary Privilege Act 1987

At a glance

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Judgment (139 paragraphs)

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