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[2002] ACTSC 28
plaintiff. The court held that parliamentary privilege had not been established on the evidence, and the copy of the Board of Inquiry report tendered by the plaintiffs was admitted into evidence in both...
4 cited instruments linked from this judgment.
The plaintiffs tendered a copy of a Board of Inquiry report in proceedings challenging findings in that report. The Speaker argued parliamentary privilege under s 16 of the Parliamentary Privileges Act barred admission. The court held that privilege protects words and acts that form parliamentary proceedings but does not automatically attach to every copy of a document merely because a Member possesses a copy; there was no evidence the tendered copy was prepared for or retained for parliamentary business. Accordingly privilege was not established and the copy was admitted into evidence.
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1,784 words · generated 26/06/2026
A Board of Inquiry appointed under s 5 of the Inquiries Act 1991 (ACT) produced a report and submitted it to the Chief Minister. Plaintiffs brought proceedings in the Supreme Court of the Australian Capital Territory seeking declaratory relief in relation to findings and recommendations contained in that report. The plaintiffs tendered a copy of the report in support of their claims (paras 1, 5, 12).
The Speaker of the ACT Legislative Assembly raised a concern that parliamentary privilege might prevent the court from receiving the report into evidence. The Speaker sought to have counsel appear as amicus curiae to argue that the report, or its receipt by the Chief Minister for tabling in the Assembly, brought it within the protection of article 9 of the Bill of Rights 1688 as applied in Australia by s 16 of the Parliamentary Privileges Act 1987 (Cth) (paras 2–4, 9). The court heard detailed argument at short notice from the Speaker's amicus, from the plaintiffs' counsel and from the Attorney-General's representatives (paras 2, 6–19).
Justice Crispin identified the central question as whether the copy tendered by the plaintiffs fell within the statutory concept of "proceedings in Parliament" in s 16(2) such that s 16(3) barred its tender or use in court. After considering arguments and authorities, and having regard to the limited factual material available, the court concluded there was no evidence that the report or the tendered copy had been prepared for, or retained for, parliamentary business. On that basis the court held parliamentary privilege had not been established and admitted the copy into evidence (paras 21–25).
The court's decision rests on three connected points:
The statutory scheme and the nature of the privilege: s 16(2) of the Parliamentary Privileges Act defines "proceedings in Parliament" broadly to include "the preparation of a document for purposes of or incidental to" parliamentary business and the making or publication of documents by order of the House or a committee; s 16(3) then prevents evidence being tendered in court that would question or rely on the truth, motive, intention or good faith of anything forming part of those proceedings (paras 3–4). That statutory definition was central to the legal analysis (para 4).
The character of the document and the available evidence: Crispin J emphasised that the report had been prepared to fulfil a statutory duty of the Board under the Inquiries Act, following the Executive's appointment (paras 1, 21). There was no evidentiary foundation to show the particular copy tendered had been prepared for parliamentary business or retained for that purpose prior to the plaintiffs receiving it (paras 12, 17, 21, 24). The absence of that factual link meant s 16 did not, on the material before the court, operate to exclude the copy.
The correct legal reach of privilege: the court explained that privilege protects the words used or acts done in the course of parliamentary proceedings, for example, retention of a document by a Member for parliamentary purposes, because those words or acts form part of proceedings (para 22). But that protection is not a blanket rule that transforms every copy into an immune instrument. If a Member elects to retain a document for parliamentary business, evidence of that retention/use may be excluded; however, other copies not prepared or used for parliamentary purposes remain potentially admissible (paras 22–23). Thus the court concluded the plaintiffs' copy was not excluded absent a showing it was produced or used for parliamentary purposes (paras 21, 24).
The decision therefore combines the statutory text of s 16 with a fact-sensitive assessment of how the particular copy came into the plaintiffs' hands, concluding the necessary factual predicate for privilege was not established.
Before this ruling there was acknowledged uncertainty about the precise ambit of parliamentary privilege under article 9 principles and how those principles operate under s 16. The court noted conflicting or wide-ranging judicial language in prior authorities, for example the Queensland Court of Appeal decision in O'Chee v Rowley, where McPherson JA described acts of bringing documents into existence or collecting them for parliamentary use as capable of amounting to "proceedings in Parliament" (para 9). The briefing paper cited in the judgment (Griffin) also recorded an expansive view that documents once kept for parliamentary business would be protected (para 20).
Crispin J did not purport to set out a definitive outer boundary for the privilege; rather the decision is a fact-bound application of the statutory definitions to the specific circumstances before the court. The ruling confirms two important points for practice:
The mere possession of a document by a Member or the Executive, or the tabling of a report, does not automatically render every copy inadmissible. There must be evidence that the particular copy was prepared for or retained for parliamentary business (paras 21–24).
Privilege protects words and acts integral to parliamentary proceedings, including the retention or use of a document for parliamentary business, but it operates against receiving evidence that would reveal or question those words or acts (para 22).
Thus the "before" uncertainty about whether tabling or ministerial receipt would automatically exclude all copies was resolved in the "after" sense by emphasising the necessity of a factual foundation to show the document was prepared for or used in parliamentary business.
Para 21: "The decisive question ... whether the copy ... falls within the description 'proceedings in Parliament' ... However, the evidence does not establish that the report ... was prepared for any such purpose."
Para 22: "Privilege may be attracted by the retention of document for a relevant purpose, but that is because the retention for such a purpose is itself an act forming part of the proceedings. The privilege thereby created does not attach to the document and any copies for all purposes."
Para 23: "Privilege may not prevent even documents that have been tabled from being admitted into evidence if they were not prepared for purposes of or incidental to business of the Parliament and their subsequent production would not reveal words used or acts done that might fairly be regarded as falling within the concept of 'proceedings in Parliament'."
Para 24: "There is simply no evidence to that effect. In my opinion, privilege has not been established."
Para 25: "For these reasons the copy of the report will be admitted into evidence in both matters."
This decision is engaged when a document tendered in litigation has some connection to parliamentary business, commonly where:
Under the reasoning in this judgment, the decisive factual trigger for exclusion under s 16 is evidence that the particular copy was prepared, produced, retained or used for parliamentary business such that admitting it would impinge on those protected words or acts (paras 21–22). Absent that, copies not created or used for parliamentary business remain admissible.
The judgment itself does not canvass later appellate treatment. It engages with prior authorities but stops short of pronouncing a broad rule beyond the immediate fact-sensitive conclusions (para 23). Practitioners should therefore treat Crispin J's reasoning as a carefully contextual statement about the interrelationship between s 16 privilege and documentary admissibility: i.e., that privilege requires an evidentiary foundation linking the specific copy to parliamentary purposes, and that privilege attaches to acts/words of proceedings rather than automatically to all copies. Any assessment of later judicial treatment must be based on subsequent reported decisions, which are not considered in this judgment.
The judgment leaves several boundaries unresolved:
Precise outer limits of s 16: Justice Crispin expressly declined to determine the full range of circumstances in which s 16 might exclude documents from evidence, acknowledging the breadth of the statutory language but resolving the case on the available facts (para 23). Thus questions remain about borderline cases where preparation for parliamentary use is contested.
The point at which ministerial receipt or an intention to table converts a document into one 'prepared for purposes of or incidental to' parliamentary business: the court found no evidence of intention by the Chief Minister on the material before it, but did not lay down a definitive test for when a ministerial possession or tentative intention produces privilege (paras 9, 12, 17, 21).
Interaction with other privileges and immunities: the judgment notes related public-interest considerations (referring to Commonwealth of Australia v Northern Land Council) but does not explore overlaps or tensions between parliamentary privilege and public interest immunity in depth (para 15). How courts should resolve contested claims involving both doctrines remains to be further clarified.
The status of copies that are subsequently disseminated by third parties: Crispin J gave examples suggesting that copies circulated elsewhere may remain admissible even if one copy is used for parliamentary business (para 22), but the precise interplay of dissemination, copying, and privilege is not exhaustively analysed.
For practical litigation, the judgment underscores the need to plead and, where appropriate, adduce evidence about the provenance and intended use of documents said to be subject to parliamentary privilege. Where the critical facts are in dispute, interlocutory rulings will hinge on the quality of evidentiary material before the court (paras 6, 21–24).
1. The present proceedings concern applications for declaratory relief in relation to findings and recommendations made by the first defendant in a report concerning the inquiry he had conducted following his appointment as a Board of Inquiry under s 5 of the Inquiries Act 1991.
2. At the commencement of the hearing of the applications yesterday morning, Mr Erskine of counsel sought leave to appear as amicus curiae for the purpose of making submissions on behalf of the Speaker of the ACT Legislative Assembly (`the Speaker') as to the possible application of parliamentary privilege to the report. A person appearing in that capacity does not usually adopt an adversarial position in relation to the proceedings but seeks to assist the court by raising potentially important issues and presenting legal argument as to their implications and the manner in which the might be resolved. After hearing brief argument on the application, I granted leave for him to appear in that capacity.
3. As Mr Erskine duly pointed out, parliamentary privilege was established by the provisions of article 9 of the Bill of Rights 1688 (UK). There had been some controversy as to the precise extent of the privilege and the Commonwealth Parliament apparently sought to clarify the position by the enactment of the Parliamentary Privileges Act 1987 (Cth). The relevant portions of that Act effectively govern the privilege of the ACT Legislative Assembly by virtue of s 24 of the Australian Capital Territory (Self Government) Act 1988 (Cth) which provides that until the Assembly makes provisions to the contrary it shall have the same privileges as those enjoyed by the House of Representatives.
4. Mr Erskine drew my attention to the following provisions of s 16 of the Parliamentary Privileges Act:
(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.
(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying to the Parliament, and for the purposes of this section, proceedings in Parliament, means all words spoken and acts done in the course of or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality thereof, includes:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purposes of:
(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;
(b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.
5. The issue raised on behalf of the Speaker was whether parliamentary privilege would effectively prevent the court from receiving in evidence the copy of the report that Mr Rayment QC, who appeared for the plaintiffs with Mr Mossop, tendered on his clients' behalf.
6. The resolution of this issue was attended by some difficulty because no evidence has yet been adduced and the only factual basis upon which I could rely was provided by means of a few agreed statements from the bar table. Yet an immediate decision is required. It would be difficult to envisage any manner in which the present application could be effectively litigated without reference to the report in which the findings and recommendations the applicants seek to impugn are contained. It has even been suggested that counsel for the plaintiffs would be unable to open the case without infringing the provisions of s 16. Furthermore, as Mr Erskine pointed out, the basis of any ruling I might make on this issue might have implications for the further conduct of the proceedings. Hence, it would be inappropriate for me to defer giving reasons for my decision.
7. The same issue arises in similar proceedings commenced by the Community Advocate, Ms McGregor, and by Ms Grayson which, whilst not consolidated with the present proceedings, are being heard with them. Accordingly, I also agreed to hear Mr Howe, who appeared on their behalf with Ms Walker, in relation to this issue.
8. Quite apart from the interests of the parties, however, the issue is of fundamental importance to the free and effective conduct of parliamentary business in the Legislative Assembly. It was, in my opinion, entirely appropriate for the Speaker to seek to have the issue raised by counsel briefed to seek leave to appear as amicus curiae and I am grateful for the assistance which has been provided to me in this manner.
9. Despite the heartening optimism expressed in the opening words of subs 16(1), Mr Erskine acknowledged that considerable doubt had been expressed as to the precise ambit of the privilege. In the course of his submissions, Mr Erskine pointed to what he described as the extraordinary breadth of the provisions contained in subss 16(2) and 16(3). The privilege applied, inter alia, to "all words spoken . . . in the course of, or for the purposes of or incidental to, the transacting of business" of the Assembly, and the breadth of even that description was effectively expanded by the provisions of the ensuing paragraphs. He also referred to the decision of the Queensland Court of Appeal in O'Chee v Rowley (1997) 150 ALR 199 in which McPherson JA said that acts of bringing documents into existence for such purpose or collecting, assembling or even coming into possession of documents for such a purpose were capable of amounting to "proceedings in Parliament". Mr Erskine submitted that no matter how or in what circumstances a member may have received a document, once he or she had decided to retain possession of it with a view to using it in connection with the business of the Assembly, or in anticipation of doing so, privilege was attracted. In the present case, whilst there was no direct evidence that the Chief Minister had retained the report for such a purpose or in anticipation of using it for such a purpose, an inference could be drawn from such circumstances as the provision in s 14 of the Inquiries Act authorising him to table the report, the importance of the matters to which the report related, and the fact that it was tabled as soon as an interlocutory injunction restraining him from doing so was discharged.
10. The Parliamentary Privileges Act contained no provision for privilege to be waived at least by an individual member, even a Chief Minister, and, in any event, such a waiver could not be implied by the provision of copies of the reports to the plaintiffs on a confidential basis. Indeed, the provision of copies to senior officers in relation whom adverse findings and recommendations had been made should be seen as further acts for the purpose of the business of the Assembly.
11. If privilege attached to the report the provisions contained in subs 16(3) made it unlawful for it to be tendered or received in evidence for purposes which included questioning anything contained therein and drawing inferences or conclusions from any part of it. Consequently, for all practical purposes, reliance on the report would be effectively precluded and the plaintiffs would be prevented from maintaining the present proceedings unless they could find some way to restructure them in a manner that would make reliance upon the terms of the report unnecessary.
12. In answer to these contentions, Mr Rayment QC submitted that, whilst the Legislative Assembly undoubtedly enjoyed the same privilege as that conferred upon the House of Representatives by the Parliamentary Privileges Act, that privilege had no application to the copy of the report that he had tendered. He maintained that the copy provided to his clients had never been tabled in the Assembly and that there was no evidence to suggest that at the time it had been made available to his clients the Chief Minister had intended to table the original. He also made the point that the Inquiries Act provided for appointments such as that of the first respondent to be made by the Executive and for the report to be submitted to the Chief Minister who would presumably receive it as a Member of the Executive. There could be no question of one copy of a report falling within the concept of "proceedings in Parliament" merely because another copy was in the possession of the Chief Minister and he might wish to table it.
13. Mr Rayment's submissions were supported by Mr Howe who presented a lengthy and substantial argument on his client's behalf. Mr Howe pointed out, in my view correctly, that, whilst pars (a) and (b) of subs 16(2) made it clear that the concept of "proceedings in Parliament" extended to evidence given and documents submitted to the Assembly, neither of these provisions captured any anterior events such as the antecedent provision of a proof of any such evidence or a copy of the documents to be submitted. He also submitted that, whilst par (c) made it clear that the concept extended to the preparation of documents "for purposes of or incidental to the transacting of any such business", a report which had been neither commissioned nor prepared for such a purpose did not meet this description even if it was subsequently tabled. He argued that there was no other basis upon which either the original of the report or copies provided to the plaintiffs could be regarded as falling with the concept defined by subs 16(2). The provisions of subs 16(3) applied only to evidence, questions, statements, submissions or comments "concerning proceedings in Parliament". Hence, they had no application to the copy of the report tendered by Mr Rayment.
14. Mr Howe also pointed to the prevalence of inquiries conducted pursuant to statutory provisions similar to that contained in s 5 of the Inquiries Act and suggested that it was significant that the authorities failed to reveal any principle that the reports of such inquiries became inadmissible upon receipt by the relevant minister or even upon being tabled in the parliament of the state or territory in question.
15. He emphasised the important role played by judicial review and cited passages from the judgment of the High Court in Egan v Willis & Anor [1998] HCA 71; (1998) 195 CLR 424 at 451 and 476. He submitted that there were passages in the High Court's judgment in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 which suggested that parliamentary privilege had offered no answer to the application for declaratory relief in relation to a report which the relevant legislation required be tabled in parliament. It was true that there was no Queensland provision equivalent to s 16 of the Parliamentary Privileges Act but the provisions of article 9 of the Bill of Rights 1688 no doubt applied and, he maintained, s 16 was merely declaratory of the meaning of those provisions. He also submitted that if the High Court had recognised that parliamentary privilege had such a broad scope the decision in Commonwealth of Australia v Northern Land Council & Anor [1993] HCA 24; (1993) 176 CLR 604 rejecting access to cabinet note books would have been based on that privilege rather than on considerations of public interest immunity.
16. Ultimately, he submitted, a document could not be said to concern proceedings in Parliament unless it had been produced for that purpose. If, contrary to his forceful submissions, the terms of the section appeared to be wide enough to embrace a privilege of the breadth suggested by Mr Erskine then a literal construction should be hastily jettisoned in favour of the so called "mischief" rule referred to by Jordan CJ in Hall v Jones (1942) 42 SR (NSW) 203.
17. Mr Walker, who appeared for the Attorney-General, supported Mr Howe's submissions. He also stressed the fact that there was no evidence that, at the time he made copies available to the plaintiffs, the Chief Minister had formed any intention to table the report. He informed me that since notice of the Speaker's submissions had been received only late on the afternoon of 9 April 2002, time had not permitted the preparation of any supplementary affidavits, but that he had been instructed that the Chief Minister, who was also the Attorney-General, had not formed such an intention by that time and would call evidence to that effect if necessary.
18. Mr Clynes, who appeared for the first defendant, reminded me that his client had, in essence, filed a consenting appearance and said that he did not wish to be heard on any aspect of the applications.
19. This brief outline of the competing arguments has not done justice to the extensive submissions which counsel presented on short notice over the course of a full and, in fact, somewhat extended hearing day. However, whilst time does not permit a more detailed excursus of those submissions, I am nonetheless grateful for the assistance so provided and have given due consideration to all of the matters raised in argument and to the numerous authorities cited.
20. In addition, my own researches overnight revealed a briefing paper which may provide some limited support for some aspects of Mr Erskine's argument. In the paper entitled "Copyright, Privilege and Members of Parliament", Briefing Paper 13/2000 >, the author, Gareth Griffin, refers to the observations of MacPherson J in O'Chee v Rowley and adds:
This indicates that any document that comes into the possession of a Federal MP at this preparatory stage, which the Member then chooses to keep for the purpose of transacting parliamentary business, would be protected by the doctrine of parliamentary privilege. Moreover, anything copied or reproduced for this purpose would be protected in the same way and therefore shielded from the operation of the copyright law.
21. Nonetheless, I am not satisfied that privilege has been established. The decisive question is, of course, whether the copy of the report tendered by Mr Rayment falls within the description "proceedings in Parliament" as defined in subs 16(2) and that concept plainly extends to acts done for purposes of transacting the business of the Parliament including the preparation of documents for such purposes. However, the evidence does not establish that the report of the first defendant was prepared for any such purpose. On the contrary, it seems clear that the report was prepared in fulfilment of a statutory duty which the first defendant acquired upon accepting the appointment by the Executive pursuant to s 5 of the Act.
22. Privilege may be attracted by the retention of document for a relevant purpose, but that is because the retention for such a purpose is itself an act forming part of the proceedings. The privilege thereby created does not attach to the document and any copies for all purposes. It applies only to the words used and acts done in the course of, or for purposes of or incidental to, the transaction of business of the Assembly including the retention of a document for a purpose of that kind. Hence, if a Member obtains a document that has been prepared for some reason unrelated to the business of the Assembly but elects to retain it for such a purpose, subs 16(3) would prevent the admission of any evidence of that retention or any subsequent use for such a purpose. As Mr Griffin has suggested, it would also apply to any copies brought into existence for such a purpose. That is because the creation and use of the copies for such purposes would also be acts forming part of the proceedings of the Parliament. However, privilege would not attach to copies of the document which were not prepared or used for such a purpose. It is for this reason that the tabling or retention of copy of a newspaper can not prevent the continued circulation of the paper or the receipt in evidence of another copy. Similarly, whilst, as O'Chee v Rawley demonstrates, a document containing allegedly defamatory statements retained by a Member for a relevant purpose can not be obtained on discovery and used to prove such possession, the Member's possession for that purpose would not give rise to a wholesale application of privilege to other copies. If copies had also been supplied to newspapers for publication, the fact that the Member had decided to keep the copy in his or her possession for a relevant purpose would not prevent the copies supplied to the newspapers from being tendered in defamation proceedings against others.
23. Furthermore, privilege may not prevent even documents that have been tabled from being admitted into evidence if they were not prepared for purposes of or incidental to business of the Parliament and their subsequent production would not reveal words used or acts done that might fairly be regarded as falling within the concept of "proceedings in Parliament". For example, a Member of Parliament sued for defamation in respect of the publication of a letter for purposes unrelated to Parliamentary business could not effectively prevent the maintenance of the proceedings against him by the simple expedient of tabling the only copy of the offending letter. Nor do I accept that a court would be precluded from relying upon figures published in the annual report of a statutory authority which had been tabled, though it would be precluded from receiving any evidence as to the use to which it had been put in Parliament. However, for present purposes it is unnecessary to determine the precise extent of the privilege.
24. Whilst it is possible that the copy of the report tendered by Mr Rayment was produced for purposes of or incidental to the transaction of business of the Assembly, there is simply no evidence to that effect. In my opinion, privilege has not been established.
25. For these reasons the copy of the report will be admitted into evidence in both matters.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Counsel for the plaintiffs: Mr B W Rayment QC and Mr D Mossop
Solicitor for the intervenor ACT Government Solicitor
O'Chee
Rowley
(1997) 150 ALR 199
(1998) 195 CLR 424
(1992) 175 CLR 564
(1993) 176 CLR 604
The court held that parliamentary privilege had not been established on the evidence, and the copy of the Board of Inquiry report tendered by the plaintiffs was admitted into evidence in both matters (paras 24-25).