Criminal Justice Commission v Parliamentary Criminal Justice Commissioner
[2001] QCA 218
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Criminal Justice Commission v Parliamentary Criminal Justice Commissioner[2001] QCA 218
- Add to List
Criminal Justice Commission v Parliamentary Criminal Justice Commissioner[2001] QCA 218
Reported at [2002] 2 Qd R 8
Criminal Justice Commission v Parliamentary Criminal Justice Commissioner[2001] QCA 218
Reported at [2002] 2 Qd R 8
SUPREME COURT OF QUEENSLAND
CITATION: | Criminal Justice Commission and Ors v Parliamentary Criminal Justice Commissioner [2001] QCA 218 |
PARTIES: | CRIMINAL JUSTICE COMMISSION (first applicant/first appellant) MICHAEL ALLAN BARNES (second applicant/second appellant) JOHN JOSEPH BARTON (third applicant/third appellant) PIERRE MARK LE GRAND (fourth applicant/fourth appellant) GEORGE ANTHONY NOLAN (fifth applicant/fifth appellant) GAVIN JAMES RADFORD (sixth applicant/sixth appellant) v PARLIAMENTARY CRIMINAL JUSTICE COMMISSIONER (respondent/respondent) |
FILE NO/S: | Appeal No 7215 of 2000 SC No 11504 of 1999 SC No 6073 of 2000 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 5 June 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 May 2001 |
JUDGES: | McPherson and Williams JJA, Chesterman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | Appeals dismissed with costs |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW AT COMMON LAW – EXCESS OF POWER AND DEFECTIVE USE OF POWERS – LACK OR EXCESS OF JURISDICTION – where Parliamentary Criminal Justice Commissioner was required to investigate allegations of an unauthorised disclosure of information from the Criminal Justice Commission – whether the report of the Commissioner was ultra vires ADMINISTRATIVE LAW – JUDICIAL REVIEW AT COMMON LAW – PROCEDURAL FAIRNESS – EXCLUSION OF RULES OF NATURAL JUSTICE – UNDER LEGISLATION – whether the Parliamentary Criminal Justice Commissioner was required to observe the rules of procedural fairness STATUTES - ACTS OF PARLIAMENT – INTERPRETATION – FUNCTION OF COURT – whether the Court should make a declaration regarding the meaning of s 118F(2)(c) Criminal Justice Act 1989 (Qld) STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – INCONSISTENT STATUTES – whether the enactment of s 118ZA Criminal Justice Act 1989 (Qld) deprives the Parliamentary Criminal Justice Commissioner of privileges or immunities conferred by the Bill of Rights and the Parliamentary Papers Act 1992 (Qld) Bill of Rights 1688, art 9 Commissions of Inquiry Act 1950 (Qld) Constitution Act 1867 (Qld), s 40A Criminal Justice Act 1989 (Qld), s 115, s 118G(1), s 118K(1), s 118R(1), s 118R(2), s 118W, s 118ZA, s 132(1), s 132(2) Parliamentary Papers Act 1992 (Qld), s 2, s 3, s 9 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, considered Balog v Independent Commission against Corruption (1990) 169 CLR 625, distinguished British Railways Board v Pickin [1974] AC 765, considered Criminal Justice Commission v Nationwide News Pty Ltd [1996] 2 Qd R 444, considered Mahon v Air New Zealand [1984] AC 808, considered National Companies and Securities Commission v News Corporation (1984) 156 CLR 296, considered Sankey v Whitlam (1978) 142 CLR 1, considered Stockdale v Hansard (1939) 9 Ad & E 1, considered |
COUNSEL: | W Sofronoff QC, with G Newton for all appellants A J H Morris QC, with D Rangiah for the respondent H Fraser QC for the Speaker of the Legislative Assembly, amicus curiae |
SOLICITORS: | Criminal Justice Commission for all appellants Parliamentary Commissioners for the respondent |
- McPHERSON JA: On 28 September 1998 Mr J K Paff attended a function at Government House, in the course of which he conversed with an inspector of police. Mr Paff, who is himself a former policeman, was then a member of the Legislative Assembly having been elected in the One Nation Party interest. He was also a member of the Parliamentary Criminal Justice Committee (PCJC). In speaking to the police inspector, he reminisced about some bygone incidents in his police career which, he said, had involved some form of serious misconduct on the part of senior police officers.
- Mr Paff has since admitted making the allegations but denied they were true. In the meantime, however, the police inspector, considering it his duty to do so under the Police Service Administration Act 1990, reported the allegations to the Criminal Justice Commission (CJC), whose function it is to investigate allegations of official misconduct. He also informed the Assistant Commissioner of Police of his having done so.
- On 30 October,1998 a report appeared in the Courier Mail under the heading One Nation MP quizzed over police comments. It said that "One Nation MP Jack Paff was questioned this week by the Criminal Justice Commission over comments he allegedly made about past police practices, law enforcement authorities claimed". As a result of that report the PCJC requested the Parliamentary Criminal Justice Commissioner to:
"investigate and report to the committee [the PCJC] in relation to whether there was an unauthorised disclosure of information or other material from the Criminal Justice Commission (CJC) concerning the CJC's investigation of allegations made by Mr Paff MLA at Government House on 28 September, which information or other material:
- under the Act is to be treated as confidential, and
- resulted in an article in the Courier Mail on 30 October 1998 … entitled One Nation MP quizzed over police comments."
- At that time the Parliamentary Criminal Justice Commissioner was Ms Julie Dick SC. In consequence of the request to her, she heard evidence from Mr Paff himself; the police inspector who had conversed with him; and various officers of the CJC. In her report, which was delivered on 30 August 1999, Ms Dick concluded that, on the evidence before her, the information in the newspaper report that Mr Paff had been interviewed by the CJC could have come from one of three sources. For reasons which she gave, she eliminated both Mr Paff and the police inspector, as well as the Assistant Commissioner of Police, as possible sources of the information in the newspaper report of 30 October 1998. She said she was satisfied that none of them had released the information to the Courier Mail. She concluded her report by saying:
"Accordingly I am satisfied to the appropriate standard that the source of the information was the Criminal Justice Commission. However, there is no evidence that the information was disclosed directly to the Courier Mail by any of the officers involved in the investigation or mentioned in this report."
- The report of the Parliamentary Commissioner was in due course furnished to the chairman of the PCJC. It was incorporated as annexure "A" to a Report no 51 published on 13 December 1999 under the hand of the Chairman of PCJC, who was Mr Paul Lucas MLA. At the conclusion of that Report no 51, Mr Lucas recorded that Mr Paff's conduct was a separate matter which had already been dealt with by the PCJC in another Report no 47, and that the subject Report no 51 was concerned not with that conduct, "but with the leak from the CJC".
- On 23 December 1999 the CJC issued an originating application no 11504 of 1999 directed to Ms Dick as Parliamentary Criminal Justice Commissioner seeking the following relief:
- A declaration that the report of the Parliamentary Criminal Justice Commissioner to the Parliamentary Criminal Justice Committee dated August 1999, concerning allegations made by Jack Kelvin Paff, was ultra vires.
- A declaration that the Parliamentary Criminal Justice Commissioner, when investigating allegations of possible unauthorised disclosure pursuant to s 118R(2)(c) of the Criminal Justice Act 1989 (Q), and in reporting to the Parliamentary Criminal Justice Committee on the results of carrying out her investigation, is not entitled to make findings of guilt.
- A declaration that in reporting adversely to the Criminal Justice Commission in her report dated August 1999, concerning the said allegations by Jack Kelvin Paff, the Parliamentary Criminal Justice Commissioner failed to observe the requirements of procedural fairness.
Later, on 24 July 2000, a further such application no 6073 of 2000 was made in which five officers of the CJC were named as the applicants. The two applications came before Helman J in the Supreme Court, where, after hearing submissions from the PCJC and the Speaker of the Legislative Assembly, his Honour dismissed the applications with costs. These are appeals against those orders.
- On behalf of the applicants on appeal, Mr Soffronoff QC advanced what were essentially two submissions, corresponding to paras 2 and 3 of the relief sought in the applications, in support of the claim in para 1 for a declaration that the report of the Parliamentary Criminal Justice Commissioner dated August 1999 was ultra vires. The first submission was that Ms Dick had no authority to "make findings of guilt on the part of any person" in the course of making a report in carrying out an investigation under s 118R(2)(c) of the Criminal Justice Act 1989. Section 118R(2) is a provision of that Act which defines the functions of the Parliamentary Commissioner. Having stated in s 118R(1) that the Commissioner has the functions given under that or another Act, s 118R(2) goes on to provide that he or she has the functions "as required by the Parliamentary Committee", established by s 115 of the Act as a Committee of the Legislative Assembly, to:
"(a)…
(c) independently investigate allegations of possible unauthorised disclosure of information or other material that, under this Act, is to be treated as confidential."
It was in pursuance of this provision that the Commissioner was requested to make her investigation and report in the present instance. Its terms may be contrasted with those of s 132(2) of the Act, which makes it a contravention of the Act, punishable by a fine or imprisonment, to wilfully disclose information that has come to a person's knowledge because he is or was a person to whom that subsection (2) applies, which, by s 132(1)(b) includes an officer of the Criminal Justice Commission.
- Among the difficulties confronting the applicants' first submission are that Ms Dick made no finding against anyone that he was guilty of a contravention of, or of an offence against, s 132(2) of the Act. In fact, she was careful not to do so. In referring to the evidence and actions of the individual officers of the CJC who testified before her, she avoided identifying any of them by name, but instead designated them only by means of an alphabetical letter as Mr "A", Mr "B" and so on. It was not until the second originating application issued on 14 July 2000 that the names of any individuals became linked in any way to her investigation, and even then it was not possible to say which of those letters of the alphabet designated particular applicants.
- What was more, Ms Dick did not make any finding that any one or more of those persons so designated had contravened s 132(2) of the Act by "wilfully" or otherwise disclosing knowledge that had come to him as an officer of the CJC. To do so was no part of the function that she was requested by the PCJC to carry out. What she had been requested to do was "to investigate and report to the [Parliamentary Criminal Justice] committee in relation to whether there was an unauthorised disclosure of information or other material from the Criminal Justice Commission …". That is the function which she in fact discharged. Her conclusion was that "the source of the information was the Criminal Justice Commission"; but, more specifically, that there was "no evidence" that the information was disclosed directly to the Courier Mail "by any of the officers involved in the investigation or mentioned in this report". It is true that this left open the possibility that one of those officers, as distinct from someone else at the CJC, might have disclosed the information indirectly; but it was very far from a finding or conclusion that he had done it "wilfully" within the meaning of s 132(2) so as to constitute a contravention of that provision, or that any of the applicants had been "guilty" of doing so.
- There is, therefore, nothing in the report of the Commissioner that is capable of being considered a "finding of guilt" of that or any other offence on the part of any of the individual applicants. If it is relevant, the same is also true of the applicant Criminal Justice Commission itself. The CJC is by s 6 of the Act constituted a corporation with a membership consisting of a chairperson and four other members: s 8(1). As a corporation, it can, under the general law, act only through human agency and, except in day to day business, can ordinarily do so only with the authority of a formal resolution passed at a meeting of members. There is no suggestion anywhere in the report that it was either the incorporated CJC or any of its members who disclosed the information in question. Neither it nor they were found to have committed an offence against s 132(2) of the Act or any other law of Queensland. Quite apart from differences in the legislation, the case is therefore plainly distinguishable from Balog v Independent Commission against Corruption (1990) 169 CLR 625 and other authorities relied on by Mr Soffronoff QC to say that a commission or a commissioner of that general character is not authorised to make findings of "guilt".
- The second major submission advanced by the applicants on appeal is that the Parliamentary Commissioner was bound, in carrying out the function requested by the PCJC, to observe the rules of procedural fairness, and that she had failed to do so. In that regard, it was said that she had not permitted the CJC to be represented at the hearings; she had not informed counsel for the CJC witnesses about the identities of those who would be called to give evidence, or afforded access to the full transcript of evidence taken at the hearing; and, although she had offered an opportunity to the CJC to cross-examine Mr Paff, she had done so at short notice and, it was said, only some time after she had submitted her report.
- The submission takes as its starting point the decision of the Privy Council in Mahon v Air New Zealand [1984] AC 808, to the effect that, when investigating a matter under statutory authority, a commissioner of inquiry is required to observe the rules of natural justice; and to do so by ensuring that a person represented at the inquiry, who might be adversely affected by a finding, should be given notice of that possible finding together with an opportunity of meeting it. In the present case the investigation was being conducted by Ms Dick as Parliamentary Commissioner under the authority of s 118R(1) of the Act, read in conjunction with s 118W, which confers on the Commissioner all the powers of a commission of inquiry under the Commissions of Inquiry Act 1950. As a result, it was submitted, a duty to observe the rules of natural justice or procedural fairness was imposed on Ms Dick in conducting the investigation and in reporting her conclusions in the present case.
- It is, however, clear from the Mahon v Air Zew Zealand and decisions which follow it that the duty to afford natural justice or procedural fairness arises only when there is a risk that an adverse finding may be made against someone. Sometimes that risk may appear from the very terms of reference itself, as where a commissioner is appointed to investigate the actions of a particular person or group of persons. Sometimes it emerges in the course of the inquiry that such a finding may be made. Sometimes it becomes evident only after the event, when the report of the investigatory findings are published. At that stage, it may, as in the Air New Zealand case, be too late to correct the procedural defect by affording the necessary opportunity to be represented, or to be heard, or to call evidence in opposition to the prospective adverse finding. In that event, and there being, it would seem, no power to quash the finding or report, the only relief that is ordinarily capable of being afforded by a court of law is to make a declaration that, in reporting adversely to the person affected, the commissioner has failed to observe the requirements of natural justice or procedural fairness. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 597 is an illustration of the exercise of the power of making such a declaration in circumstances of that kind.
- It is a declaration in that form that is now sought in para 3 of the originating applications here. Paragraph 1, which claims a declaration that the report is ultra vires, founds a conclusion of law on the alleged deficiencies in procedure at the hearing that are specified in that paragraph and perhaps also in para 2. Here, however, the immediate question is whether, looking at the matter in the light of the report by the Parliamentary Commission dated 30 August 1999 which was published by the PCJC on 13 December 1999, any of the applicants was the subject of an adverse finding which they, or any of them, has reason to complain about. As to that, we were not, except perhaps in the most general way, directed to any portion of the report that involved such a finding. As I have said more than once, Ms Dick was not asked to, nor did she, find that any identified or identifiable person had communicated information to the Courier Mail or anyone else. On the contrary, in responding to the terms of reference from the PCJC, she concluded that there was no evidence that the information was disclosed directly by any of the applicants or the officers mentioned in the report. There was never any suggestion that it was the incorporated CJC or its members who had revealed it. The investigation was therefore not one in which an adverse finding was either requested or made against any of the applicants.
- This avoids the need to consider the character of the right in virtue of which the applicants seek the relief by way of declaration which they claim in these proceedings. In Mahon v Air New Zealand [1984] AC 808, 840, their Lordships spoke of "reputation" and of findings that were "gravely defamatory" of the respondent airline and of certain individuals who were found to have contributed to the disaster under investigation. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, it was, again, a company and the individuals associated with it who were condemned in the subject report and who were held to have been denied procedural fairness. In their joint judgment, Mason CJ, Dawson, Toohey and Gaudron JJ, said (175 CLR 564, 577) that the question was whether the report:
"… adversely affected a legal right or interest, including an interest falling within the category of legitimate expectation, such that the Commission was required to proceed in a manner that was fair to the appellants."
Later, in explaining the character of the right that had been infringed, their Honours said that "the law proceeds on the basis that reputation itself is to be protected"; that the report, published in accordance with the Act, "could only ensure that, thereafter, the appellant's reputation in Queensland would be of the worst kind"; that personal reputation was an interest that should not be damaged by an official report without an opportunity to show why the finding should not be made; that the same was true of a business or commercial reputation; and that the appellants' reputation was "blackened" in circumstances in which they should have been given an opportunity to put their side of the matter (175 CLR 564, 577, 578, 579). Brennan J, in his separate reasons, also spoke of a statutory authority preparing a report that was "damaging to … reputation".
- From this it appears to me that, in cases of this kind, the "interest" that is being protected is the common law right of every person to maintain their reputation against the damage that may be caused to it as a consequence of being denied a proper opportunity of vindicating it. If it is in law that interest that attracts protection, then the applicants in this case are in a position of some difficulty. Their reputations have not been damaged in the report, which made no findings or imputations against them that could be considered damaging or defamatory. Even if some form of unfavourable imputation had been made in the report, it might be questionable whether, because the CJC itself is neither a trading corporation or a charity, it has a reputation that is protected by the law. See Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, and NSW Aboriginal Land Council v Jones (1998) 43 NSWLR 300. The reputations of the individual applicants do, of course, stand on a different plane; but there is, as I have said, no finding that any identified or identifiable one or more of them directly disclosed the information whether wilfully or otherwise.
- If, therefore, reputation or damage to reputation provide the jurisdictional point of access to relief of the nature sought here, the applicants are not shown to possess an interest sufficient to justify the declarations sought in paras 1 to 3 of their originating applications. Although it is not necessary to determine that issue in a final way, it serves to lead on to the next matter raised by Mr Soffronoff. He submitted that, even if there might be reasons why the Court either would not, or could not, make the declarations sought in paras 1 and 3 of the originating applications, it was nevertheless appropriate to grant the relief sought in para 2. A declaration in that form, would, he submitted, involve no more than an interpretation of the relevant portion of the Criminal Justice Act. In other words, the Court should, he urged, take the opportunity to settle the meaning of s 118R(2)(c) of that Act by declaring that the Parliamentary Criminal Justice Commissioner, when investigating allegations of possible unauthorised disclosure pursuant to s 118R(2)(c) of the Act, and in reporting to the Parliamentary Criminal Justice Committee on the results of carrying out her investigation, "is not entitled to make findings of guilt".
- There are, in my opinion, valid reasons why no such relief should be granted. There would be no utility in making such a declaration. Ms Dick made no such finding in her report, and her function in carrying out this particular investigation and report has long since been fully discharged. As it happens, she is no longer the Parliamentary Criminal Justice Commissioner. Even if she were, there is nothing to say that she would ever be called on again to investigate and report on a matter of this kind. Her successor in office may on a future occasion adopt a different approach to matters which he or she may be asked by the PCJC to investigate. The question whether or not, in what respects and to what extent, the requirements of procedural fairness need to be observed, depends largely on the circumstances of the particular matter being investigated. See National Companies and Securities Commission v News Corporation (1984) 156 CLR 296. It is therefore a mistake to try to generalise about it or to do so in advance. In short, what is being sought here is a declaration in the abstract that is in the nature of an advisory opinion, which, as a matter of discretion, courts are always reluctant to give unless there is some good reason for doing so. The question being debated here may never, either in this or any other form, present itself again. Without knowing more about the nature of all future investigations that may be carried out by the Parliamentary Commissioner, it would scarcely be possible to frame a binding declaration that would cover all cases and circumstances.
- In what I have said so far, I may already have gone further than the law allows. The Parliamentary Criminal Justice Commissioner is by s 118G(1) of the Act declared to be an officer of Parliament, who under s 118K(1), must be appointed by the Speaker as an officer of the parliamentary service pursuant to the Parliamentary Service Act 1988. In carrying out her (or his) functions, she may be requested by the Parliamentary Criminal Justice Committee to perform the functions specified in s 118R(2), of which one is, as we have seen, the investigation of a possible unauthorised disclosure of information. Without attempting to identify in detail all of the functions and duties of the PCJC, it is fair to describe that Committee as Parliament's watchdog over the CJC itself, and to regard the Parliamentary Commissioner as the independent agent of that Committee, which is a committee of the Parliament. Even if these matters stood alone, they might well raise issues about the applicability of art 9 of the Bill of Rights 1688 (or 1689, according to whether the Julian or Gregorian calendar is used). The point was considered by Brennan J in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 586-587, but not by any of the other learned Justices in that case. Speaking parenthetically (at 588) about the particular report that was being considered there, his Honour said that it enlivened the Speaker's power to invest it with the immunities and privileges of a report tabled in and printed by order of the Legislative Assembly. However, at the time in January 1990 when the CJC was asked for advice, not by Parliament but by Cabinet, the function of the PCJC, his Honour pointed out, "can hardly have been the function on which the Commission [the CJC] had entered, for the Parliamentary Committee did not hold its first meeting until April 1990", which was some time after the CJC's officer had started work on the project. Nothing resembling a hiatus of that kind existed in the authority of the Parliamentary Commissioner in the present instance.
- The decision in Ainsworth was delivered on April 9, 1992. On 2 July 1992 the Parliamentary Papers Act 1992 was assented to and came into force. By s 12, it applies to evidence and documents published after its commencement. Section 3(1) of the Act of 1992 provides that s 3 applies for the purposes of applying article 9 of the Bill of Rights 1688 to the Queensland Parliament, and also for the purposes of the Act of 1992 itself. Section 3 provides as follows:
"(2)All words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the House or a committee are 'proceedings in Parliament'.
(3)Without limiting subsection (2), 'proceedings in Parliament' include -
- giving evidence before the House, a committee or inquiry; and
- evidence given before the House, a committee or an inquiry; and
- presenting or submitting a document to the House, a committee or an inquiry; and
- a document laid before, or presented or submitted to, the House, a committee or an inquiry; and
- preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c); and
- preparing, making or publishing a document (including a report) under the authority of the House or a committee; and
- a document (including a report) prepared, made or published under the authority of the House or a committee."
- Article 9 of the Bill of Rights, expressed in modern form as it usually is now, declares:
"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."
There is no doubt that art 9 of the Bill of Rights has always formed part of the law of Queensland. Unlike some other Australian States, Queensland came into existence as a separate entity in 1859 with a representative form of Parliamentary government to which the Bill of Rights was immediately capable of being attracted. The privileges conferred by art 9 are, in any event, now comprehended by s 40A of the Constitution Act 1867 and its application to Queensland is expressly recognised in s 3(1) of the 1992 Act. It may be, as some have claimed, that it already encompassed the matters now specified in ss 3(2) and 3(3) of that Act; but, whether or not that is so, the enacted law on the subject is now placed beyond doubt. In determining what "proceedings of Parliament" may not be questioned in any court out of the Parliament, that expression bears the meaning ascribed to it by those provisions of the 1992 Act.
- In applying them to the matters here, I accept the submissions of Mr Hugh Fraser QC for the Speaker that the request, from the chairman of the Parliamentary Criminal Justice Commission to Ms Dick as Parliamentary Commissioner, to investigate and report satisfies the general description in s 3(2); that her report itself is comprehended by s 3(3)(d); that s 3(3)(f) describes the process undertaken by her of conducting the investigation with a view to publication of the report she prepared; and that her final report is, within para (g) of s 3(3), a report prepared, made or published under the authority of the "House" or a "committee", which terms are defined in s 2 to mean respectively the Legislative Assembly and a committee of it. All these matters have, under s 3 of the Act of 1992, been certified by Mr Paul Lucas MLA as chairman, and his certificate is declared by s 3 to be "evidence" of those matters. It follows that, if uncontradicted as they are here, they are to be received as correct unless there is something to suggest the contrary: cf Re Stollery [1926] Ch 284, 313.
- It remains to be seen whether the report of the Parliamentary Commissioner is, within the meaning of art 9 of the Bill of Rights, now being "questioned" in court. As to that I entertain no doubt. The relief sought in para 1 of the applications would, if granted, result in the report being declared ultra vires, which means that it was beyond the power of the Commissioner to make it. No more potentially destructive form of challenge can be made to the legal validity of any act than one that would result in the Commissioner's investigation and report being nullified as beyond her power. As regards para 2, the relief sought is directed to the Parliamentary Commissioner "when investigating … and reporting to" the PCJC, and seeks a declaration that she "is not entitled to make findings of guilt …". This makes no sense unless it is read in the past tense as "was not entitled" to make such findings of guilt. Because she did not make any such finding, the question does not arise; but, if she had done so, it could readily be regarded as a "questioning" of a proceeding in Parliament to say that the Commissioner was in law not "entitled" to make it. Finally, it is plain that para 3 of the relief also amounts to a form of "questioning" by asserting, as it does, a failure on the Commissioner's part to observe the requirements of procedural fairness. If that claim were successful, it would (as it is plainly intended to do) detract from the authority and cogency of the report by raising doubts about the validity of the conclusions it contains. To that extent, it involves a "questioning" of that "proceeding in Parliament", which by art 9 of the Bill of Rights the courts are precluded from undertaking.
- To this Mr Soffronoff made two responses on behalf of his clients. One is that, to adopt such an approach to the matter, involves an abdication of the courts' undoubted function of determining the outer limits of Parliamentary privilege, as exemplified in the great case of Stockdale v Hansard (1839) 9 Ad & E 1, 114. There the Court of Queen's Bench held it was not competent for the Commons by mere resolution to authorise the publication of defamatory matter as part of the Hansard records of debates in that House. The power of the Commons to define its privileges was held not to extend as far as that. It may well be that the expanded meaning given to "proceedings in Parliament" in s 3 of the Parliamentary Papers Act 1992 has gone a long way to reversing the decision in that particular case; but the critical element in Stockdale v Hansard was that the claim of the House to publish with immunity was authorised only by a resolution of the Commons, which, of course, was itself not an Act of Parliament. By contrast, s 3 of the Parliamentary Papers Act is part of an Act of Parliament, duly passed and assented to, which, until it is repealed or in some way invalidated, is the law of the land that binds the courts.
- The possibility that court might one day have to pass judgment on the legitimacy of an inquiry or report by the Parliamentary Commissioner cannot be altogether discounted. If, for example, the Parliamentary Criminal Justice Committee purported under s 118R(2)(c) to authorise the Parliamentary Commissioner to investigate an allegation of disclosure of information that was not "under the Act" to be treated as confidential, it would or might call for a decision whether or not the ensuing investigation constituted "proceedings in Parliament" that were insulated by art 9 of the Bill of Rights from being "questioned" in a court of law. Intrusion into a field of federal law that is subject to the Commonwealth Constitution may be another area in which such questions could arise. But none of these problems exist in the present case. The submission advanced by the applicants is that the Parliamentary Committee could not lawfully authorise, and the Commissioner could not lawfully act, in defiance of the common law requirement, said to be implicit in s 118R, that the principles of procedural fairness must be observed. The short answer to that contention is that neither the Parliamentary Committee nor the Commissioner herself did or attempted any such thing. The requirements of procedural fairness were not contravened, and the applicants have no valid ground for complaining that they were. It follows that this Court, like others in Queensland, is precluded by art 9 of the Bill of Rights from questioning the validity or propriety of the Commissioner's investigation and report. This accords with the conclusion at which Helman J arrived. In my respectful opinion, his Honour was correct.
- The second of Mr Soffronoff's submissions may be shortly disposed of. Section 118ZA(1) provides that a "parliamentary commissioner officer" (which includes the Parliamentary Commissioner) is not liable to an action or other proceeding for damages "for or in relation to anything done or omitted to be done in good faith and without negligence in the performance, or purported performance, of a function" under Part 4 of the Act. Stripped to its essentials, the submission is that, by subsequently enacting s 118ZA in 1997, the legislature manifested an intention to deprive the proceedings and report of the Parliamentary Criminal Justice Commissioner of the privileges and immunities conferred by the Bill of Rights and the Parliamentary Papers Act 1992, and to confine the Commissioner's protection to that provided by s 118ZA(1). There is, as it seems to me, more than one answer to this proposition. As Williams JA remarked in the course of argument on the appeal, the submission involves viewing the relatively incomplete and partial protection conferred by s 118ZA as an exhaustive code of the privileges and immunities of the Commissioner; and, as I would add, as operating to effect an implied repeal of the relevant parts of the Bill of Rights and the Act of 1992 in their application to the Commissioner. Neither of those interpretations or conclusions is at all plausible, especially when considered in the context of the general interpretive rule that express words (or, as would probably now be said, unmistakable and unambiguous language) are required to abrogate a parliamentary privilege: Duke of Newcastle v Morris (1870) LR 4 HL 661, 668, 671-672, 674, 677; and see Re Parliamentary Privilege Act 1770 [1958] AC 331, 350. Another answer is, as Helman J observed, that the privileges and immunities in question are regarded as belonging to Parliament collectively rather than to the individual member or officer of Parliament who may be able to claim their benefit: Sankey v Whitlam (1978) 142 CLR 1, 36‑37. The substantial difference between the two provisions is that s 118ZA is concerned to protect the Commissioner from personal liability in an action for damages, whereas s 3 of the Act of 1992 is designed to extend the privilege of Parliament established by art 9 of the Bill of Rights to the acts, matters and things specified in that section.
- For these reasons, I would reject the applicants' submissions on this point. It follows in my opinion that the appeals should be dismissed with costs.
- WILLIAMS JA: The circumstances giving rise to this appeal are fully set out in the reasons for judgment of McPherson JA, which I have had the advantage of reading.
- There is no doubt that Article 9 of the Bill of Rights forms part of the law of Queensland and applies to the Queensland Parliament. Relevantly, it provides that "proceedings in Parliament, ought not to be impeached or questioned in any court". Further, it is beyond doubt that the Queensland Parliament has the power to define "proceedings in Parliament" for purposes of Article 9. It is not necessary for present purposes to determine what limits, if any, there may be on that power. Suffice it to say that the Queensland Parliament extended the definition of "proceedings in Parliament" by passing the Parliamentary Papers Act 1992 ("PPAct").
- Section 3(3) provides that "proceedings in Parliament" includes:
"(c)presenting or submitting a document to the House, a committee or an inquiry;
- preparing a document for the purpose of, or incidental to, transacting business mentioned in paragraph . . . (c);
- preparing, making or publishing a document (including a report) under the authority of the House or a committee;
- a document (including a report) prepared, made or published under the authority of the House or a committee".
By virtue of definitions in s 2 "committee" means a committee of the Legislative Assembly. Section 9 of that Act provides that an "authorising person", defined as "the chairperson of a committee", may sign a certificate stating, inter alia, that a document was presented or submitted to a committee; that a document was prepared for the purpose of, and incidental to, presenting a document to a committee; or a document was prepared under the authority of a committee, and such certificate is "evidence of those matters".
- The Parliamentary Criminal Justice Committee (PCJC) is a committee of the Legislative Assembly established by s 115 of the Criminal Justice Act 1989 ("CJ Act"). It follows that the PCJC is a committee for purposes of s 3 of the PPAct.
- As is recorded by McPherson JA in his reasons the respondent, Parliamentary Criminal Justice Commissioner is an office created by s 118G of the CJ Act and that Act provides for the functions of that Commissioner in s 118R. Pursuant to that section the functions include:
"(c)independently investigate allegations of possible unauthorised disclosure of information or other material that, under this Act, is to be treated as confidential;
- report to the Parliamentary Committee on the results of carrying out the functions mentioned in paragraph (c);
- perform other functions the Parliamentary Committee considers necessary or desirable".
- In this case the Chairperson of the PCJC certified pursuant to s 9 of the PP Act that the reports of the Commissioner referred to in the application made by the appellants were:
"(a)a document presented or submitted to a committee.
- a document prepared for the purposes of, and incidental to, presenting a document to a committee.
- a document prepared under the authority of a committee".
It follows that the reports of the respondent in question are deemed to be "proceedings in Parliament" and, as the reasoning of McPherson JA establishes, the appellants seek to challenge such proceedings. Article 9 of the Bill of Rights clearly operates to make such a challenge impermissible at law. Given the provisions of the PP Act the proceedings commenced by the appellants clearly involve the questioning of "proceedings in Parliament", and Helman J was right in refusing the relief sought.
- The result is that neither Helman J nor this Court could investigate whether or not there was any breach of procedural fairness in the way the Commissioner performed her task. In my view, given the operation of Article 9 in this case, this Court should refrain from commenting in any way on that issue.
- On the broader issues, subject to what I have said above, I agree with all that has been said by McPherson JA and Chesterman J and cannot usefully add anything.
- I agree that the appeals should be dismissed with costs.
- CHESTERMAN J: The circumstances out of which this appeal has been brought and the legislative provisions relevant to it have been set out by McPherson JA in his reasons for judgment and do not need repetition.
- The appellants advanced two arguments in support of their submission that article 9 of the Bill of Rights does not prohibit the prosecution of their application for judicial review into the making and contents of the Parliamentary Criminal Justice Commissioner’s (“the Commissioner”) report of 30 August 1999.
- The first argument was that the only immunity enjoyed by the Commissioner in respect of her report was that conferred by s 118ZA of the Criminal Justice Act 1989 which
- does not confer parliamentary privilege upon the Commissioner; and
- does not in its terms prohibit judicial review into the making of the report.
As to this argument I agree entirely with what has been written by McPherson JA and think it unnecessary to add to his Honour’s reasons.
- The other argument was that parliamentary privilege does not extend to unlawful conduct undertaken by the Commissioner. The appellants’ complaints were about the manner in which the Commissioner’s investigation was conducted. Those complaints were not litigated because the trial judge found that to do so would call into question proceedings in Parliament. The point advanced was that the powers conferred on the Commissioner by ss 118R, 118T and 118W of the Criminal Justice Act, being powers of investigation and inquiry the outcome of which is likely to affect the rights (or at least the reputation) of those investigated, must be exercised in such a way as to confer an opportunity to those persons to answer any complaint or allegation made against them. That is to say that persons the subject of the investigation are to be afforded procedural fairness. This is the customary way of construing such provisions; Carruthers v Connolly [1998] 1 Qd R 339; Annetts v McCann (1990) 170 CLR 596. The appellants wish to complain that the Commissioner’s report was compiled from a process of investigation that did not afford them procedural fairness in that they were not given an adequate opportunity to argue against the opinion which became the Commissioner’s ultimate finding. An allied point was that the relevant statutory provisions did not permit the Commissioner to express a ‘finding of guilt’, but only to essay a review of the evidence. To go further was said to be beyond the Commissioner’s jurisdiction.
- The argument proceeds that the Commissioner must exercise her statutory powers and functions lawfully. She may not go beyond the powers given her by statute and must exercise them according to law, ie by affording procedural fairness. Parliamentary privilege, it is submitted, extends only to such a lawful exercise of power. The remedy of judicial review remains available to correct unlawful or excessive use of the powers.
- The submissions have a certain attraction but cannot, I think, be accepted, at least in a case like the present. It must be steadily borne in mind that the only unlawfulness complained of is in the reporting process itself. It is not said that the Commissioner committed any criminal offence or breach of a civil law. The subject matter of the litigation is limited to the means by which a parliamentary officer went about the task of compiling a report to provide information to a parliamentary committee and parliament itself. More particularly the complaint is that information was gathered without sufficient consultation with those who were the subject of the report.
- It may be conceded that difficult questions might arise concerning the extent to which parliamentary privilege attaches as to conduct otherwise unlawful. In Criminal Justice Commission v Nationwide News Pty Ltd [1996] 2 Qd R 444 at 456 Pincus JA appears to have thought that an assault committed by one parliamentarian upon another in the assembly could be prosecuted in the criminal courts notwithstanding parliamentary privilege; and Davies JA at 460 suggested that permission given by parliament to its members to sell prohibited drugs in parliamentary buildings would not be a bar to prosecution. However it should be observed that on two occasions courts in England have felt unable to proceed against parliamentary employees who sold alcohol in breach of the licensing legislation because the sale occurred within the precincts of parliament and had been authorised by the House. In Williamson v Norris [1899] 1 QB 7 the point was grudgingly conceded but in R v Graham-Campbell ex parte Herbert [1935] 1 KB 594 it was held that the sale of alcohol by servants of a committee of the House of Commons within its precincts fell within the scope of the internal affairs of that House and was therefore protected by its privileges. No court of law had jurisdiction to interfere.
- The appellants pressed the court with the decision in Stockdale v Hansard (1839) 9 Ad & El as authority for two propositions: (1) that it is the court which determines the limits of parliamentary privilege and, therefore, the extent to which legal proceedings impeach or question parliamentary proceedings; (2) parliamentary privilege does not extend to unlawful conduct. The case was concerned with the publication of a defamatory report which had been made to, and laid before, the House of Commons. The speaker of the House authorised its publication and Messrs Hansard published it in their journal. Stockdale, who was defamed, succeeded in an action against Hansard whose publication, occurring outside Parliament, was held not to be protected by parliamentary privilege. The passage principally relied upon appears in the judgment of Lord Chief Justice Denman who said (114):
“ . . . whatever is done within the walls of either assembly must pass without question in any other place. For speeches made in Parliament by a member to the prejudice of any other person, or hazardous to the public peace, that member enjoys complete impunity. For any paper signed by the Speaker by order of the House, though . . . calumnious . . . the Speaker cannot be arraigned in a Court of Justice. But, if the calumnious or inflammatory speeches should be reported and published, the law will attach responsibility on the publisher. So, if the speaker, by authority of the House, order an illegal Act, though that authority shall exempt him from question, his order shall no more justify the person who executed it than King Charles’s warrant for levying ship money could justify his revenue officer.”
- As to the right of parliament to conduct its own affairs free of curial restraint the authors of the 22nd ed of Erskine May Parliamentary Practice write (p 89):
“Both Houses retain the right to be sole judge of the lawfulness of their own proceedings, and to settle – or depart from – their own codes of procedure . . . The principle holds good even where the procedure of a House or the rights of its members or officers to take part in its proceedings depends on statute.
The fullest recognition was accorded by the courts to the rights of both Houses to exclusive parliamentary cognisance of their proceedings even in matters prescribed by statute . . . It has been judicially recognised that Parliament is the master of the application of its own procedures to the business before it.”
At p 164 the authors say:
“In general, the judges have taken the view that when a matter is a proceeding of the House, beginning and terminating within its own walls, it is obviously outside the jurisdiction of the courts, though there may be an exception for criminal acts so far as they may be comprehended within the term proceedings in Parliament.”
In British Railways Board v Pickin [1974] AC 765, an authority relied on by the authors, the central allegation was that Parliament had been misled into enacting a private act. Lord Morris said (790):
“It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the . . . court . . . to embark upon an inquiry concerning the effect or the effectiveness of the internal procedures in . . . Parliament or an inquiry whether in any particular case those procedures were effectively followed.”
Lord Simon expressed the same opinion. He said (799):
“Among the privileges of the Houses of Parliament is the exclusive right to determine the regularity of their own internal proceedings . .
‘What is said or done within the walls of Parliament cannot be enquired into in a court of law. On this point all the judges in the two great cases which exhaust the learning on the subject, Burdett v Abbott . . . and Stockdale v Hansard . . – are agreed, and are emphatic.’
(Lord Coleridge CJ in Bradlaugh v Gossett . . .) The rule, indeed, is reflected in the Bill of Rights . . .”
- What is in issue in this litigation is the process by which Parliament sought to be informed about a matter which was its legitimate concern. The Commissioner was an officer of Parliament appointed by the Speaker (s 118G(1) and s 118K(1) of the Criminal Justice Act). The Parliamentary Criminal Justice Committee (“the Committee”) is itself a committee of Parliament being established by s 115 of the Criminal Justice Act. The Committee’s role is to monitor the activities of the Criminal Justice Commission (“the Commission”) and to advise Parliament accordingly. The Commissioner’s report in question was made pursuant to a request by the Committee. As the reasons for judgment of McPherson JA and Williams JA make clear the preparation of the report was a proceeding in Parliament to the same extent as though the Commissioner’s acts occurred “within the walls of the assembly”. The appellants’ applications seek to challenge that very proceeding. In the examples given in Nationwide News the conduct which was thought to be beyond the scope of privilege was ancillary to parliamentary proceedings.
- The appellants’ submissions seek the circumvention of article 9 by inquiring into the lawfulness of the Commissioner’s report in order to determine whether it and the process by which it was made are privileged. That inquiry, as the other judgments explain, causes the appellants to question a parliamentary proceeding which is forbidden by article 9. The starting point is whether litigation will impeach or question a parliamentary proceeding. If it will the court may not proceed to hear it. The starting point is not, as the appellants’ submissions would have it, to question whether the parliamentary proceeding is lawful to see whether it qualifies for privilege. Such an approach would have the consequence that parliamentary privilege could be abrogated by the mere assertion of unlawfulness attaching to some aspect of the parliamentary proceedings sought to be challenged. The question whether or not the impugned conduct was unlawful would first be litigated to determine whether the proceeding was “lawful” and thus privileged. To a large extent the courts, not parliament, would determine the extent of parliamentary privilege. This is contrary to history and authority.
- The consequence is not that the Commissioner may act with irresponsible abandon secure from censure by parliamentary privilege. That privilege only extends to proceedings in parliament. In the present context that means providing a report to the Committee in response to a request from it. So, to take the example given in argument, where the Commissioner is asked to investigate the conduct of X but instead investigates the conduct of Y and does so without affording Y procedural fairness an application for injunction or judicial review brought by Y could not be defeated by the application of article 9. A report into Y would not be a proceeding in parliament as defined by s 3 of the Parliamentary Papers Act 1992. Similarly, should the Commissioner be requested to inquire into designated affairs of a named person but go beyond those affairs in such a manner as to give rise to a right for injunctive or prerogative relief a claim for such relief will not be overcome by article 9. It is only with respect to matters that are “proceedings in parliament” and the court must stay its hand.
- The answer to the appellants’ reliance on Stockdale is, I think, that the Parliamentary Papers Act 1992 has removed the basis underlying the decision. By that Act the making and furnishing of the report by the Commissioner to the Committee was a proceeding in parliament and was therefore a proceeding which Denman LCJ accepted could not “be arraigned in a court of justice”. The point in Stockdale was that the defamation was a publication outside parliament of material presented to parliament. The defendant’s journal did not become a parliamentary proceeding merely because the House, by resolution, authorised publication of the report. By contrast the Parliamentary Papers Act has made the conduct here in question a proceeding in parliament. It is an internal proceeding of the type referred to by Erskine May and the judgments in Pickins. Parliament itself, not the courts, determines what is the proper procedure for the report.
- It may be noted that the effect of Stockdale was abrogated the following year by the enactment of the (English) Parliamentary Papers Act 1840 which provided that all reports, papers and proceedings published by or under the authority of either House of Parliament should be absolutely privileged and the court was enjoined to stay any proceedings “in respect of defamatory statements contained therein” (See the discussion in Gatley on Libel and Slander 8th ed para 426). That particular change occurred in Queensland by the enactment of s 11 of the Defamation Act 1889, which provides:
“A person does not incur any liability as for defamation by publishing . . . under the authority . . . of the Legislative Assembly, any defamatory matter.”
- For these reasons I agree that the Commissioner’s report is not amenable to judicial review and that the appellants’ application were properly dismissed. I agree that the appeal should also be dismissed with costs.