Acts Interpretation Act 1901 (Cth), s 15AA

Parliamentary Entitlements Act 1990 (Cth), ss 4, 5

Parliamentary Privileges Act 1987 (Cth), s 16

Remuneration Tribunal Act 1973 (Cth), ss 7, 7(8AA)

Remuneration Tribunal Determination 2006/18: Members of Parliament - Entitlements

Amann Aviation v The Commonwealth (1988) 19 FCR 223

Barton v the Queen [1980] HCA 48; (1980) 147 CLR 75

Bradlaugh v Gossett (1884) 12 QBD 271

Canada v Vaid [2005] 1 SCR 667

Crane v Gething [2000] FCA 45; (2000) 97 FCR 9

Dupas v the Queen [2010] HCA 20; (2010) 241 CLR 237

Egan v Willis [1998] HCA 71; (1998) 195 CLR 424

Halden v Marks (1995) 17 WAR 447

Hamsher v Swift (1992) 33 FCR 545

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Moti v the Queen [2011] HCA 50; (2011) 245 CLR 456

New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) 1993 CanLII 153 (SCC); [1993] 1 SCR 319

O'Chee v Rowley (1995) 150 ALR 199

Prebble v Television New Zealand Ltd [1995] 1 AC 321

R v Glennon [1992] HCA 16; (1992) 173 CLR 592

R v Murphy (1986) 5 NSWLR 18

R v Richards; Ex parte Fitzpatrick & Browne [1955] HCA 36; (1955) 92 CLR 157

R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216

Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450

Rees v McCay [1975] 7 ACTR 4

Stockdale v Hansard [1839] EngR 139; (1839) 9 Ad & E 1; 112 ER 1112

Williams v Spautz [1992] HCA 34; (1991-1992) 174 CLR 509

1. The plaintiff, Peter Neil Slipper, is a former member of the House of Representatives of the Commonwealth Parliament. He has three charges contrary to s 135.1(5) of the Criminal Code Act 1995 (Cth) pending in the ACT Magistrates Court (the proceedings). I will refer to the charges in greater detail later in this judgment, but the essential allegation against him is that he dishonestly misused a Cabcharge card and Cabcharge vouchers issued to him as a member of Parliament, by using them to pay for travel when he was not entitled to use them, and knowing that he was not entitled to use them.

2. To these charges he has pleaded not guilty, and they were listed for hearing before the Chief Magistrate on 2 December 2013. On that date, Ms Weston-Scheuber, counsel for the plaintiff, made an application to permanently stay the proceedings on the basis that they were an abuse of process. On 4 December 2013, the Chief Magistrate declined to order a stay and gave oral reasons.

a) to review the decision of the Magistrates Court (the first defendant) not to grant a permanent stay of proceedings; and

b) to review the failure of the first defendant to decide that the conditions necessary for the plaintiff to be granted a stay of proceedings have been demonstrated.

a) an order in the nature of certiorari quashing the decision that the proceedings not be stayed;

b) a declaration that the continuation of the proceedings would constitute an abuse of process;

c) an order in the nature of prohibition preventing further hearing of the proceedings against the plaintiff on the basis that to proceed would constitute an abuse of process; and

d) alternatively to c), an order of mandamus requiring the first defendant to determine the plaintiff's application for a stay according to law.

5. This relief is sought on the following grounds:

1. The first defendant committed a jurisdictional error by holding that it had the power to hear the criminal proceedings against the plaintiff in circumstances where the operation of parliamentary privilege precludes a fair hearing.

2. The first defendant made an error of law which appears on the face of the record and/or committed a jurisdictional error in holding that evidence raising parliamentary privilege had to be before it, before it could conclude that the proceedings should be permanently stayed.

3. The first defendant committed an error of law which appears on the face of the record and/or committed a jurisdictional error in holding that evidence relating to matters of parliamentary privilege could lawfully be put before the court.

4. The first defendant committed an error of law which appears on the face of the record and/or committed a jurisdictional error in construing s 16 of the Parliamentary Privileges Act (Cth) as not being engaged by the nature of the proceedings.

5. The first defendant committed a jurisdictional error by holding that it had jurisdiction to hear the proceedings where the nature of alleged offences as particularised are such as to bring the offences within the exclusive cognisance of Parliament.

6. The first defendant made an error of law which appears on the face of the record and/or made a jurisdictional error in refusing to grant a permanent stay of proceedings of the prosecution against the plaintiff.

6. The second defendant is the informant in the proceedings before the Magistrates Court, and the third defendant is conducting those proceedings. The first defendant, as is usual, did not actively participate in these proceedings.

7. Each charge alleges that on a nominated date the plaintiff dishonestly caused a risk of loss to the Department of Finance and Administration, a Commonwealth entity, knowing or believing there was a substantial risk of the loss occurring. On each occasion it is alleged the plaintiff used a Cabcharge card or vouchers issued to him by Ministerial and Parliamentary Services to travel at the expense of the Commonwealth. Each of the charges contains the following allegation by way of particulars:

[The plaintiff] knew that he was only entitled to car transport at government expense when the car transport was for a purpose set out in Determination 2006/18. [The plaintiff's] use of the care hire was not for such a purpose and [the plaintiff] knew that to be the fact.

8. Members of Parliament are entitled to benefits as set out in the Parliamentary Entitlements Act 1990 (Cth) (the PEA): s 4; and to such additional benefits as are determined by the Remuneration Tribunal under s 7 of the Remuneration Tribunal Act 1973 (Cth): s 5 PEA.

9. The reference to "Determination 2006/18" in the above is a reference to "Remuneration Tribunal Determination 2006/18 - Members of Parliament - Entitlements" (the Determination), which relevantly provides:

2.1 A senator or member when travelling within Australia, excluding the external territories, on parliamentary, electorate or official business but not including party business (other than meetings of a parliament political party, or of its executive, or of its committees, and the national conference of a political party, of which he or she is a member), shall be entitled to travel at government expense.

2.2 For the purpose of clause 2.1 official business means attendance at:

(a) properly constituted meetings of a Government advisory committee or task force provided that the senator or member is a member of the committee or task force;

(b) functions representing a Minister or a Presiding Officer on official business as a Minister or Presiding Officer, provided that the Minister or Presiding Officer nominates the function in advance in a written request to the senator or member to represent him or her.

10. It follows from the above that to convict the plaintiff the prosecution must prove, amongst other things, that he was not, for those journeys the subject of the charges, travelling "on parliamentary business", a term which is not defined in the Determination or elsewhere.

11. The Chief Magistrate, with respect, correctly determined that she had the power to stay proceedings as an abuse of process in an appropriate case. The defendants do not challenge that determination in these proceedings. The Chief Magistrate refused the plaintiff's application to stay the proceedings on the basis that she could not, at that time and with no evidence in the proceedings before her, be satisfied that the proceedings would engage s 16 of the Parliamentary Privileges Act 1987 (Cth) (the PPA) in such a way as to make the continued hearing of the charges unfair to the plaintiff to such a degree as to constitute an abuse of process.

12. The Chief Magistrate accepted that the question of the application of s 16 could arise in the proceedings, based upon the nature of the charge as particularised by the third defendant. Whether it did arise was a question that could only be determined in the course of the hearing of the charges, based on the evidence heard and the issues arising. She concluded "[t]here is a possibility that parliamentary privilege may apply in these circumstances, but at this stage, that possibility is pure speculation".

13. In Williams v Spautz [1992] HCA 34; (1991-1992) 174 CLR 509 at 519, it was observed that it is of "fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction". In Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, the High Court cautioned, at 50:

The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind.

14. It has long been accepted that the granting of a permanent stay should only occur in exceptional or extreme cases, where no lesser step can be taken by the court to protect its processes against abuse: Barton v the Queen [1980] HCA 48; (1980) 147 CLR 75; R v Glennon [1992] HCA 16; (1992) 173 CLR 592; Dupas v the Queen [2010] HCA 20; (2010) 241 CLR 237; Moti v the Queen [2011] HCA 50; (2011) 245 CLR 456.

15. The plaintiff advanced two main arguments in support of his application. First, that the events which form the basis of the charges against him fall within the exclusive cognisance of Parliament, and secondly that the operation of s 16 of the PPA operates so as to make any trial of the charges unfair to him.

16. Concerning the first of these arguments, the plaintiff, citing Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 at [42], submits that "the principle of responsible government by which the executive and the government are accountable to Parliament is part of the Commonwealth constitutional fabric". He submits that concern about the use of member entitlements are matters that fall to be resolved between the government and the legislature, particularly where the issue requires a determination of what constitutes "parliamentary business": clause 2.1 of the Determination. He submits that an enquiry as to whether he was travelling "on parliamentary business" on any particular occasion, and was therefore entitled to claim travel allowance, falls within the exclusive cognisance of Parliament, and is "closely related to the freedom of speech underlying Article 9 of the Bill of Rights" (referring to the English Bill of Rights 1688). The plaintiff further submits that decisions as to what constitutes "parliamentary business" entail matters of parliamentary judgments, such as whether "matters of parliamentary business are affected or obstructed, whether a precedent should be set for the guidance of other members, and whether the Houses can establish procedures appropriate to certain cases in which issues of use of parliamentary funds require clarification". These, he says, are matters inappropriate for judicial determination, citing the decision of the Supreme Court of Canada in Canada v Vaid [2005] 1 SCR 667. The Court in that decision cited an earlier decision of the Supreme Court of Canada, New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly) 1993 CanLII 153 (SCC); [1993] 1 SCR 319 at 383:

If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not enquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body.

17. The plaintiff accepts that courts may determine "whether parliamentary privilege is engaged", but once privilege is established, it is for the Parliament to decide the manner and occasion of its exercise. The charges in these proceedings, he says, due to the political and parliamentary nature of the issues raised, relate to issues that are exclusively the concern of the Parliament, particularly as they require the courts to determine the meaning and scope of "parliamentary business", which is, he says, a term falling within the description of the "necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld": see New Brunswick Broadcasting above at [16]. The plaintiff submits that the subject matter of the charges concern matters relating to an ongoing controversy about the extent to which members of Parliament can properly make use of expenses in situations where there is little guidance as to what constitutes "parliamentary business", with the consequence that Parliament and its relevant committees are the appropriate forums for resolving disputes about the authorised and proper use of such expenses.

18. In support of this argument the plaintiff points to the undoubted power of the Parliament to punish any member for contempt of Parliament, so that improper use of parliamentary entitlements may be punished by the Parliament itself. In addition, unlike in the United Kingdom, the federal Parliament has not enacted specific offences covering fraud by members of Parliament: see the Parliamentary Standards Act 2009 (UK), s 10.

19. In his written submissions, the plaintiff makes it clear that he does not suggest that a member of Parliament can never be the subject of a criminal prosecution. By reference to Bradlaugh v Gossett (1884) 12 QBD 271, cited in Rees v McCay [1975] 7 ACTR 4 at 7, he accepts that where a member of Parliament commits an "ordinary" offence lacking any peculiarly parliamentary connection, such as assault, even within the walls of Parliament, he or she is subject to the ordinary criminal law. However, where the issue of "parliamentary business" is central to the allegations made against a member of Parliament, the plaintiff says it is a matter which falls within the exclusive cognisance of Parliament.

20. Turning to the second argument advanced by the plaintiff, s 16 of the PPA provides, relevantly for present purposes:

1. Parliamentary privilege in court proceedings

(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 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 in relation 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 of the foregoing, includes:

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

(b) the preparation of submissions 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 purpose 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.

21. As s 16 has, as its starting point, the provisions of Article 9 of the Bill of Rights 1688, it is convenient to set out the terms of that Article:

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.

22. The plaintiff submits that the operation of s 16 of the PPA makes the proceedings against him "inherently unfair", and as such the first defendant committed jurisdictional error in refusing a stay of proceedings, and in determining that it had jurisdiction to proceed with a hearing. The basis for this submission is said to be the particularisation of the charges as dishonestly claiming entitlement for travelling allowance in circumstances where he was not travelling on parliamentary business. He submits that these particulars directly engage the issue of parliamentary privilege because of the overlap between the concepts of "parliamentary business" (Remuneration Tribunal Determination 2006/18, clause 2.1) and "proceedings in Parliament" (s 16 PPA). He submits that s 16 of the PPA would preclude him from adducing evidence that on those occasions specified in the charges he was travelling on parliamentary business. Evidence, or the asking of questions, or the making of submissions, in the proceedings going to show that the plaintiff was travelling on parliamentary business would, he submits, breach the prohibitions in s 16(3)(a) to (c) because:

• evidence of anything said or done by the plaintiff during the relevant trips would be for the purpose of questioning or relying on his intention or good faith on the days in question;
• evidence tendered and any submissions made, would be for the purpose of, and by way of, questioning or establishing the plaintiff's credibility, motive, intention or good faith; and
• the asking of questions, tender of evidence and making of submissions would be for the purpose of inviting the court to draw inferences or conclusions wholly or partly from the conduct/content of communications forming part of the transactions in question.

23. Consequently, the plaintiff says, both the third defendant and the plaintiff are precluded by s 16 from adducing or leading any evidence that would establish that the plaintiff was travelling on parliamentary business on the dates in question.

24. It is unnecessary, the plaintiff says, to make any assumptions about the defence case in order to accept his argument. It is the nature of the charges, as particularised, that produces the result that he cannot receive a fair trial. If the charges proceed, he says, the first defendant must determine whether he was travelling on parliamentary business, but the operation of s 16 means the court cannot receive any evidence to demonstrate that he was so travelling. In criminal proceedings, the plaintiff observes, an accused has a right to remain silent, and not to disclose any defence before trial. As such, he submits, the question of the operation of s 16 must be decided before any evidence is adduced. The decision of the first defendant that the nature of the proceedings did not, of itself, engage parliamentary privilege was an error, he says, based on a misunderstanding of s 16.

25. The plaintiff submits, therefore, that any hearing of the charges against him will be unfair, and that the first defendant has no jurisdiction to proceed with a criminal hearing that is inherently unfair.

26. In its written submissions, the third defendant says that the plaintiff's application raises the following issues:

1. would all and any evidence called by the prosecution and the plaintiff in relation to the charges necessarily fall within, or attract the operation of, the prohibition in s 16 of the PPA?
2. is the prohibition in s 16(3) necessarily engaged where the court is asked or required to scrutinise the conduct and context of communications of a member of Parliament solely for the purpose of determining whether that conduct or communication:

(i) attracts the prohibition in s 16(3); or

(ii) constitutes "parliamentary business" within the meaning of clause 2.1 of the Remuneration Tribunal Determination?

1. is a court prohibited from hearing evidence as to conduct and communications that have the potential to fall within the scope of "proceedings in Parliament" in s 16(2) of the PPA for the purpose of determining whether such conduct or communications:

(i) attract the prohibition in s 16(3); or

(ii) come within the expression "parliamentary business" in clause 2.1 of the Remuneration Tribunal Determination?

1. by virtue of the Court's answers to any of the preceding questions did the learned Chief Magistrate err in failing to permanently stay the prosecutions against the plaintiff on the grounds that they are an abuse of process?

27. The third respondent submits that it is clear that not all things said or done by a Commonwealth parliamentarian attract parliamentary privilege. It refers to the observations of Fitzgerald P in O'Chee v Rowley (1995) 150 ALR 199 at 203 that whilst the expression "proceedings in Parliament" in s 16(2) of the PPA is to be given a "generous operation", it does not "transform every action of a parliamentarian in the pursuit of his or her vocation into 'proceedings in Parliament'". The third respondent also refers to the decision of French J (as he then was) in Crane v Gething [2000] FCA 45; (2000) 97 FCR 9, where his Honour said at [43]-[44]:

It may confidently be supposed that most, if not all of the documents seized from Senator Crane's Parliamentary and Electorate offices would be recognisable by parliamentarians as typical of the myriad of papers that are produced as an incident of work as a parliamentarian. But that work and the papers it generates extend well beyond what could be described as "in the course of, or for purposes of or incidental to, the transacting of the business of a House or a committee". I would not have regarded the itineraries as falling within the protected class. The fact that they may include names of constituents who have made representations or have had meetings with the Senator and which neither they nor the Senator would want to make public does not of itself raise an issue of Parliamentary privilege. The documents do not otherwise answer the description in s 16.

The documents on the disks, to a substantial degree, comprise internal office communications and standard documents... some [of] which might relate to the Senator's movements during the relevant period... Like the itineraries, any such documents would seem unlikely to attract Parliamentary privilege by reference to the criteria in s 16.

[emphasis added]

28. The third defendant says that the proposition distilled from these cases, that not all work-related acts performed by a parliamentarian attract parliamentary privilege, was also accepted by the United Kingdom Supreme Court in R v Chaytor & Ors [2010] UKSC 52, where Lord Phillips, with whom the other members of the Court agreed, said:

Thus precedent, the views of Parliament and policy all point in the same direction. Submitting claims for allowances and expenses does not form part of, nor is it incidental to, the core of essential business of Parliament, which consists of collective deliberation and decision-making. The submission of claims is an activity which is an incident of the administration of Parliament; it is not part of the proceedings in Parliament.

[emphasis added]

29. These authorities, the third defendant says, make it clear that the expression "proceedings in Parliament" in s 16(2) is not so wide as to capture all and any conduct of a parliamentarian, whether private or work-related. It is, it says, only words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of the Parliament, including committees thereof, which come within s 16(2).

30. Hence, the third defendant says that the first question stated at [26] above must be answered in the negative. All acts done, or conversations engaged in, by a parliamentarian do not necessarily fall within the rubric of "proceedings in Parliament" in s 16(2) of the PPA. It follows, therefore, that proof of the charges against the plaintiff will not inevitably involve the reception of evidence prohibited by s 16 of the PPA, meaning that it is open to the third defendant to prosecute the charges, and the plaintiff to defend them, without necessarily breaching parliamentary privilege.

31. Turning to issues b) and c) set out at [26] above, the third defendant says that the argument advanced by the plaintiff to the effect that a court is precluded from inquiring into, or determining the meaning of "parliamentary business" is fundamentally misconceived. It is true that the actual exercise by the Parliament of an undoubted privilege may not be justiciable, but courts have a clear duty to 'judge of the existence in either House of Parliament of a privilege' whenever doing so is relevant to a determination of the rights of parties: see R v Richards; Ex parte Fitzpatrick & Browne [1955] HCA 36; (1955) 92 CLR 157 at 162 per Dixon CJ, cited with approval by Gaudron, Gummow and Hayne JJ in Egan v Willis & Anor [1998] HCA 71; (1998) 195 CLR 424 at [27]. The third defendant says that the proposition that the ordinary judicial function of interpreting and applying Parliament's enacted laws, and delegated legislation, are matters within the exclusive cognisance of Parliament is "self-evidently far-fetched".

32. The third defendant also submits that the plaintiff's argument that the nature of the case as particularised by the first defendant meant that s 16 was engaged, and that it was an error to say that the issue could not be addressed until evidence was taken, was flawed. The correct approach, it said, was that set out by the Supreme Court of Western Australia (Rowland, Murray and Anderson JJ) in Halden & Anor v Marks & Ors (1995) 17 WAR 447 at 462:

We accept the submissions of senior counsel for the Crown that the cases in which the courts have considered parliamentary privilege are divided into two main categories. First, there are cases where a question of parliamentary privilege is raised in a case already before the court, as, for example, where a party seeks to rely on something said or done in Parliament. In the exercise [of] its general jurisdiction, and in the regulation of its own proceedings, the court will decide whether the relevant action will breach parliamentary privilege and will refuse to allow the particular matter to be ventilated, or the particular evidence to be tendered. In regulating its conduct in this way, the court is endeavouring to ensure that neither it nor the parties before it question or impeach any speech, debate or proceedings in Parliament: see R v Jackson (1987) 8 NSWLR 116; Prebble v Television New Zealand Ltd; Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1; R v Grassby (1991) 55 A Crim R 419; Australian Medical Association (NSW Branch) v Minister for Health (No 2) (1992) 26 NSWLR 114.

Secondly, there are cases where the courts have been asked to review action by Parliament to enforce its proceedings, most commonly where Parliament has, by warrant, sought to subject a citizen to restraint by arrest. In these cases the court will consider whether the grounds stated in the warrant are sufficient in law to amount to a breach of privilege; but, if so, the court will not judge whether there was in fact a breach of privilege...

[emphasis added]

33. In support of the proposition that the correct approach to determining a claim for parliamentary privilege is for a court to receive evidence, and to make its determination based on evidence, the third defendant also referred to the observations of Beaumont J in Amann Aviation v The Commonwealth (1988) 19 FCR 223 at 231-2:

In R v Richards; Ex parte Fitzpatrick and Browne [supra], it was held that it is for the courts to judge of the existence in either House of Parliament of a privilege but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise. There is nothing in s 16, in its terms or by any process of implication, which purports to take away the power of the courts in these respects. The Act proceeds upon the footing that it is open to, and no doubt, the duty of, the courts to construe the provisions of the Act and to apply them in a particular case...

When senior counsel for the applicant sought to tender the extract from Hansard, senior counsel for the respondent opposed the production of the material to the court on the ground that even to read it would be a breach of s 16(3). In my view, it is open to the court, without any breach of s 16(3), to look at the extract from Hansard on a de bene esse basis, that is to say, to receive it provisionally for the purpose of a temporary and conditional examination in order to enable the court to inquire whether the reception of the extract into evidence is, or is not, prohibited by s 16(3) as properly construed. In this way, there can be no suggestion of any impairment of the judicial function. The document can be looked at by the court for the purpose of ascertaining whether its reception into evidence would or would not amount to a breach of Parliamentary privilege. If, on the other hand, s 16 should be construed in the manner contended for by senior counsel for the respondent, that is to say, if the court were not able to even look at the extract on the provisional basis without offending s 16(3), then a question of constitutional invalidity might have arisen. However, as has been said, in my view, s 16(3) should not be construed in this way. It is open to the court to consider the document de bene esse as was done in the Anderson Strathclyde Case [[1983] 2 All ER 233]...

[emphasis added]

34. The third defendant submitted that the first task for a court applying s 16 of the PPA is to determine whether particular material falls within the scope of "proceeding in Parliament", and that s 16(3) does not apply to such a determination. This approach avoids the particular difficulty urged by the plaintiff, of having to determine the applicability of s 16 in the absence of evidence because, the plaintiff said, to take evidence to determine the application of the section risks breaching the prohibitions in the section.

35. The third defendant further submitted that any argument that a different approach to determining parliamentary privilege is required in criminal cases because the accused has a right to silence, is unsupported by any authority and, indeed, inconsistent with the approach hitherto taken in criminal cases.

36. In conclusion, the third defendant submitted the plaintiff had not demonstrated any error by the Chief Magistrate in refusing to grant a stay of the proceedings.

37. The starting point is to acknowledge that the PPA is an Act and the Determination is a legislative instrument: s 7(8AA) Remuneration Tribunal Act 1973 (Cth). The ordinary rules of interpretation apply to both the PPA and the Determination. It is inconceivable that the Parliament, in passing the PPA, did not expect that its terms would be subject to interpretation by the courts, using the ordinary principles of interpretation. The first defendant was required by s 15AA of the Acts Interpretation Act 1901 (Cth) to interpret s 16 of the PPA in such a way as to best achieve its objects and purposes. This begs the question, what are the objects and purposes of s 16, and in particular s 16(3)?

38. To answer this question, it is necessary to briefly consider the history of parliamentary privilege in the Australian Parliament. The privilege of the Houses of the Commonwealth Parliament derives from s 49 of the Constitution of the Commonwealth, which provides:

The powers, privileges and immunities of the Senate and of the House of Representatives, and of the members of the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

39. One of the undoubted privileges enjoyed by the House of Commons that became a privilege enjoyed by the Parliament by virtue of s 49 is the privilege of freedom of speech as recognised by Article 9 of the Bill of Rights 1688: see [21] above. The ambit of Article 9 of the Bill of Rights proved contentious over the 150 years following its introduction, until in Stockdale v Hansard [1839] EngR 139; (1839) 9 Ad & E 1; 112 ER 1112, the Court of Queens Bench (Lord Denman CJ, Littledale, Patterson and Coleridge JJ) rejected the notions that it was for the Houses of Parliament to determine their own privileges, and that such determinations were not reviewable by the courts of law. That case involved a demurrer by the defendant to a claim in defamation by the plaintiff based on the contents of a report on prison conditions, printed by the defendant at the direction of the House of Commons, in which the plaintiff was accused of publishing an obscene book under the guise of a scientific publication, and which had apparently been permitted to be read within Newgate prison. The defendant's demurrer was based, in part, on the proposition that the defendant had acted at the direction of the House of Commons and was an instance of privilege that only the House could rule upon. After rejecting the propositions that it was for the House to determine its own privileges, and that any such determination could not be reviewed by the courts of law, Lord Denman CJ said at [149]-[150]:

It is likewise fit to remark that the defamatory matter has no bearing on any question in Parliament, or that could arise there. Whether the book found in the possession of a prisoner in Newgate were obscene or decent could have no influence in determining how prisons can best be regulated; still less could the irrelevant issue whether it was published by the plaintiff. The most advisable course of legislation on the subject is wholly unconnected with those facts: the inquisitorial functions would be exercised with equal freedom and intelligence, however they were found to be. And, if the ascertainment of them by the House was a thing indifferent, still less could the publication of them to the world answer any one Parliamentary purpose.

40. The history and purpose of Article 9 was also considered by McPherson JA (with whom Moynihan J agreed) in O'Chee v Rowley (1997) 150 ALR 199 at 206-7:

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 NSWLR 116 at 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 of the subject, the Judicial Committee in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 327 [sic], 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; secondly, the need to protect freedom of speech generally; thirdly, 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.

41. It must immediately be accepted, as it was in Stockdale v Hansard, that there are well settled, if not well defined, categories of privilege enjoyed by the Parliament which may impact upon the dealings between members and other parties. One example of an undoubted privilege identified by Lord Denman CJ was the power to commit for a contempt of the House, but even the exercise of that power was not entirely free from the oversight of the courts. The power of committal for contempt enjoyed by the House of Commons was only to commit until the close of the existing session of the House, and if the House purported to order a committal for a longer period "every Court in Westminster Hall and every Judge of all the Courts would be bound to discharge him by habeas corpus". Similarly, Patteson J acknowledged that whilst a court of law may enquire into the existence of a privilege, once it was established that the House had the power to act as it did the courts would not interfere by purporting to consider whether power was properly exercised. So, for example, where a person was committed for contempt of the House (where the House had an undoubted power), the courts would not consider whether the finding of contempt was appropriate or proper. It is inherent in the above that a court, confronted with such an issue, has the power to enquire whether the circumstances revealed that parliamentary privilege was raised.

42. By virtue of s 49 of the Constitution, as I have already noted, the various privileges enjoyed by the House of Commons as at the date of the establishment of the Commonwealth became privileges enjoyed by the Senate and the House of Representatives of the Commonwealth Parliament. The terms of s 49 provide that such a state of affairs was to continue until declared by the Parliament. On 20 May 1987, the PPA commenced, the Long Title of which is "An Act to declare the powers, privileges and immunities of each House of the Parliament, and of the members and committees of each House, and for related purposes". The genesis of this Act may be found in the decision of Hunt J in R v Murphy (1986) 5 NSWLR 18 (following an earlier ruling to the same effect by Cantor J), where he ruled that without breach of the privilege of freedom of speech guaranteed by Article 9 of the Bill of Rights, witnesses at a trial could be cross-examined in relation to evidence they gave to a Senate Select Committee, and that this evidence could be the subject of comment or used by the jury to draw inferences or conclusions. Hunt J held that the only protection given by Article 9 was to prevent court or similar proceedings having legal consequences against a member of Parliament or a witness before a parliamentary committee where those legal consequences would have the effect of preventing that member (or committee witness) exercising their freedom of speech in Parliament (or before a committee) or of punishing them for having done so.

43. In Amann Aviation, Beaumont J referred to the second-reading speech of the Bill for the PPA by the President in the Senate as establishing that "The main purpose of this Bill is to avoid the consequences of the very narrow interpretation and reading down of Article 9 of Bill of Rights 1688 in its application to the Australia Parliament in the judgments of Mr Justice Cantor and Mr Justice Hunt of the Supreme Court of New South Wales in each trial in R v Murphy". Beaumont J at 229-230 went on to consider the explanatory memorandum accompanying the Bill:

In the explanatory memorandum accompanying the Bill, there is an explanation of the objectives sought to be achieved by cl 16 of the Bill. There is a discussion of the English and Australian cases. It is said (at p. 9) that the purpose of the clause "is to avoid the consequences of the interpretation of article 9 of the Bill of Rights 1688 by the judgements of Mr Justice Cantor and Mr Justice Hunt of the Supreme Court of New South Wales".

Referring to subcl 3 of cl 16, the memorandum contains the following statements (at pp 12-14):

"the following is a further exposition of those paragraphs:

(a) calling into question the Parliamentary proceedings

this is the most obvious and clear prohibition contained in article 9. It prevents, for example, a statement in debate by a member of Parliament or the evidence of the Parliamentary witness being directly attacked for the purpose of court proceedings, or the motives of the member or the witness in speaking in Parliament for giving evidence being attacked. Thus, it cannot be submitted that the member's statements in Parliament were not true, or reckless, to support a submission that the member is an untruthful, or reckless, person.

(b) attacking the credibility, motives, etc of a person on the basis of proceedings in Parliament

This would prevent, for example, a member's speech in debate or a Parliamentary witness's evidence being used to establish their motives or intention for the purpose of supporting a criminal or civil action against them, or against another person. Thus a member's statements outside Parliament cannot be shown to be motivated by malice by reference to alleged malice in the member's statement in Parliament.

(c) drawing inferences or conclusions to support a criminal or civil action

This would prevent, for example, the jury being invited to infer matters from speeches in debate by members of Parliament or from evidence of Parliamentary witnesses in the course of a criminal or civil action against them or another person. Thus a member's speech in Parliament cannot be used to support an inference that the member's conduct outside Parliament was part of some illegal activity. This would not prevent the proving of a material fact by reference to a record of proceedings in Parliament which establishes that fact, eg, the tendering of the journals of the Senate to prove that a Senator was present in the Senate on a particular day. These prohibitions express the limitations on the use of Parliamentary proceedings which were held to flow from article 9 in the earlier court judgements. Basically, what they prevent is proceedings in Parliament being 'used against' a person in the broad sense, that is, not only being made the subject of a criminal or civil action, such as where a member is sued for word spoken in debate, but also being used to support a civil or criminal action against a person."

44. It will immediately be noted that the explanatory memorandum closely aligns each paragraph of subclause 3 to clause 16 to the core function of speeches of members, and debate, in the House itself, and the giving of evidence of Parliamentary witnesses. That is not to say that the provisions of s 16 are concerned only with what happens on the floor of the House, or before a committee, but, in my opinion, in determining whether circumstances engage the provisions of s 16 it is permissible, even necessary, to look at the extent that enquiry into those circumstances may impinge the core functions of the Parliament of receiving information and decision making.

45. In Amann Aviation, Beaumont J rejected a submission, similar to that put by the plaintiff in these proceedings, that he could not receive material said to be prohibited by s 16(3) so as to rule upon the application of the section, because to receive it would itself amount to a breach of s 16(3). His Honour said "It is open to the court, without any breach of s 16(3), to look at [the material] on a de bene esse basis, that is to say, provisionally for the purpose of a temporary and conditional examination in order to enable the court to enquire whether the reception of the [material] into evidence is, or is not, prohibited by s 16(3) as properly construed".

46. The entitlement of courts to receive evidence, for the purpose of determining whether a claim of parliamentary privilege is made out, has been recognised repeatedly: Crane v Gething [2000] FCA 45; (2000) 97 FCR 9; Egan v Willis [1998] HCA 71; (1998) 195 CLR 424; Hamsher v Swift (1992) 33 FCR 545; Amann Aviation v Commonwealth of Australia (1988) 19 FCR 223. Any challenge to that position by the present plaintiff must be rejected.

47. It has been repeatedly said that s 16(3) of the PPA should not be given a narrow interpretation. Thus in R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216, the Court of Appeal of the Supreme Court of Victoria (Winneke ACJ, Vincent and Eames JJA) said (at 244) that the section should "be interpreted according to its tenor and not read down or given a restricted meaning". In Prebble v Television New Zealand Ltd [1995] 1 AC 321, the Privy Council observed (at 333), albeit with respect to Article 9 of the Bill of Rights, that the limited interpretation placed upon the article by Hunt J in R v Murphy was "not correct so far as the rest of the Commonwealth was concerned". See also Rann v Olsen [2000] SASC 83; (2000) 76 SASR 450 at [53].

48. There are, however, limits to the activities of a parliamentarian that may come under the rubric of "proceedings in Parliament" for the purposes of s 16. In O'Chee v Rowley, Fitzgerald P said at 203:

While the phrase "... for purposes of or incidental to, the transacting of the business of a House..." in 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 hers vocation into "proceedings in Parliament".

49. The text of s 16(2), not so much an extended definition of privilege provided by Article 9 as a declaration of the law as it was understood to be by the Parliament prior to R v Murphy, only encompasses "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". Parliamentarians undoubtedly engage in many activities that have no real connection with "the transacting of the business of a House or of a committee". It is, of course, not beyond human ingenuity to devise connections between any activity engaged in by a parliamentarian and the core activity protected by Article 9 and s 16, the freedom of speech within Parliament. The text of s 16, however, does not support the proposition that it encompasses all acts done by a parliamentarian, even in the course of their occupation. What engages the provisions of s 16 are words spoken or acts done for particular purposes, being the transacting of the business of a House.

50. Both a purposive and textual approach to the interpretation of s 16 lead to the conclusion that the section is not intended to apply to all activities engaged in by a parliamentarian. The section is, at its heart, designed to protect freedom of speech in Parliament. No court can draw a bright line separating those activities that fall within the phrase "proceedings in Parliament", and those that do not, but where a court is faced with the suggestion that evidence, material or questions proposed to be lead in proceedings come within the ambit of "proceedings in Parliament", the court should bear in mind the conflicting interests identified in Prebble v Television New Zealand Ltd (at 336) which, in my opinion, although directed towards Article 9 of the Bill of Rights, apply equally to the application of s 16, see [40] above. Where there is a conflict between these interests, the public interest in ensuring that the legislature can exercise its powers freely on behalf of its electors, and with access to all relevant information, must take precedence over all other interests. Before sublimating those other interests, however, it must first be demonstrated that there is, in truth, a conflict. The onus falls on the plaintiffs, in these proceedings, to establish that the evidence to be led by the third defendant, or the questions to be asked by the plaintiff or evidence to be led by him, will result in such a conflict and, as such, engage the provisions of s 16(3). That onus is not satisfied by speculation and hypothesis: see Rann v Olsen at [212]-[213].

51. Much of the plaintiff's case rests on the proposition that there is an overlap between those activities that may be encompassed by the term "parliamentary business" in clause 2 of the Determination and those activities that fall within "proceedings in Parliament" in s 16 of the PPA. It may readily be accepted that this is the case. As a matter of logic, however, it is clear that unless "parliamentary business" as referred to in the Determination is an entire subset of "proceedings in Parliament", for the purposes of s 16, there must be some activities that fall within the former that do not fall within the latter. The terms of clause 2.1 of the Determination, which include some aspects of party political activity within "parliamentary business" which would not come within the ambit of "proceedings in Parliament" in s 16, establishes that the phrase "parliamentary business" is wider than "proceedings in Parliament". It follows that the proceeding in the Magistrates Court will not necessarily raise for consideration whether the plaintiff was engaged in activities that may fall within the terms "proceedings in Parliament".

52. It is, I think, very clear from the authorities to which I have referred that where a claim for parliamentary privilege is made before a court, whether the claim be based on Article 9 of the Bill of Rights or s 16 of the PPA, the court is entitled to determine whether the circumstances before it found a case in privilege, and it may receive evidence for the purpose of making the determination. Once it is accepted that not everything done by a parliamentarian, even in the course of their occupation, falls within the description of "proceedings in Parliament", the plaintiff's case is reduced to a complaint that the learned Chief Magistrate erred in holding that the terms of s 16 of the PPA were not engaged on the material then before her.

53. On its face, it seems unlikely that the proceedings before the Magistrates Court will raise any question of the application of s 16(3) of the PPA, but, of course, I do not purport to finally decide that point. For a parliamentarian to visit a winery for personal purposes does not constitute "proceedings in Parliament". Nor would attending a winery for electorate or party political reasons, although such visits may come within the ambit of "parliamentary business" for the purposes of the Determination. To engage the prohibition in s 16(3) evidence must possess the necessary connection to "proceedings in Parliament" anticipated by s 16, in the sense that it must have a connection to "the transacting of the business of the House or of a committee". The Magistrates Court may receive evidence, including (if he chooses), evidence from the plaintiff to determine whether the provisions of s 16(3) are engaged, but it is ultimately for the court to determine the facts surrounding the charges, and whether s 16(3) is engaged by those facts.

54. The case against the plaintiff in the Magistrates Court is that on each occasion specified in the charges he used a Cabcharge card or vouchers issued to him for use in the course of parliamentary business to attend wineries in the ACT region. It is alleged that he falsified the details of those trips, either by act or deliberate omission, so as to conceal his visits to these wineries. As I understand it, the prosecution will ask the Magistrates Court to infer from this conduct that the plaintiff was not travelling on parliamentary business on each of these occasions. It is difficult to see how the presentation of such a case will, in truth, engage the provisions of s 16 of the PPA, particularly the prosecution case. The plaintiff may, of course, give evidence or cross-examine witnesses to the effect that he was engaged in activities that fall within the term "proceedings in Parliament" for the purposes of s 16 of the PPA, and the Magistrates Court would receive that evidence provisionally for the purposes of ruling on the issue. But the making of such a claim by the plaintiff will not, of itself, establish the claim. In the ordinary way, the Magistrates Court will determine the facts in the proceedings, including the plaintiff's reason for doing any proven acts, and any relevant intention. The plaintiff could only be convicted of the charges if the Magistrates Court is satisfied beyond a reasonable doubt that he was not, at the relevant times, engaged on parliamentary business, which would have to involve satisfaction that he was not participating in "proceedings in Parliament" for the purposes of s 16 of the PPA.

55. The Chief Magistrate was correct to find that the provisions of s 16(3) of the PPA were not engaged by the material before her. Her Honour was equally correct to conclude that she was entitled to take evidence directed towards establishing the charges, and to defer any question of the application of s 16(3) until she had heard the evidence. Her Honour was also correct to rule that the circumstances then before her were not such as to deprive the plaintiff of the opportunity of a fair trial, and as such did not constitute an abuse of process.

56. The plaintiff's application will be dismissed. I will hear the parties on the question of costs.

I certify that the preceding fifty six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Counsel for the plaintiff: Ms K Weston-Scheuber with Mr M Hassall

Solicitor for the third defendant Commonwealth Director of Public Prosecutions