Carne v Crime and Corruption Commission

This application gave rise to the issue of whether a report prepared by the CCC which had been provided to the PCCC, but had not yet been tabled in Parliament by the Speaker, was protected by parliamentary privilege. It required the Court to determine, as a matter of statutory construction, whether the report was part of the “proceedings of the Assembly” within the meaning of s 8 Parliament of Queensland Act 2001.

Davis J

10 September 2021

The applicant was the Public Trustee of Queensland. He was mentioned in a report prepared by the Crime and Corruption Commission (“CCC”) into alleged corrupt conduct by him. The CCC forwarded the report to the Parliamentary Crime and Corruption Committee (“PCCC”) and asked the PCCC to direct that the report be given to the Speaker of the Legislative Assembly. The applicant brought an application in the Supreme Court seeking various relief in relation to the report and the CCC’s actions in requesting that the PCCC direct the report be given to the Speaker. [1].

It was argued by the CCC, in resisting the application, that the report attracted parliamentary privilege, with the effect that it was protected from impeachment by a court. In other words, the applicant’s complaints were non-justiciable. [58].

His Honour agreed with the submission of the CCC for the following reasons.

The legislative framework

Section 8 of the Parliament of Queensland Act 2001 (“POQ Act”) bestows parliamentary privilege upon “proceedings in the Assembly”. [59].

Section 9 of the POQ Act provides a non-exhaustive definition of the phrase, including in s 9(1) “all words spoken and acts done in the course of, or for the purposes of or incidental to, transacting business of the Assembly or a committee”. [64].

Relevantly, “committee” is defined in the POQ Act as “a committee of the Assembly, whether or not a statutory committee”. [60]. By s 291 of the Crime and Corruption Act 2001 (“CC Act”), the PCCC is established. Consequently, proceedings in the PCCC are “proceedings in the Assembly”. [61], [118].

The report was prepared for the purposes of transacting the business of the PCCC

His Honour concluded that the report attracted parliamentary privilege. It was a document prepared for “presenting or submitting a document to the Assembly … for the purposes of or incidental to, transacting business of the [PCCC]”. [120]. This finding flowed from the following reasoning:

• The report was prepared by the CCC as a result of an investigation pursuant to the powers vested in it by the CC Act where it is intended by the CCC to supply the report to the PCCC. [120].
• The CCC has statutory obligations to achieve the purposes of the CC Act which include to reduce the incidence of corruption and improve the integrity of the public sector. The CCC is to fulfil its functions by various means, including conducting investigations and it may report its findings. [117].
• The business of the PCCC, and therefore, by definition, the business of the Assembly, includes oversight of the CCC which includes oversight of its investigations. [118].
• Section 64 of the CC Act provides that the CCC “may report in performing its functions”. That constitutes a conferral of authorisation to report at least to the PCCC. [119].
• That authorisation flows from analysing s 69 ([126]–[128]):
  • Section 69(1), read with s 69(3) means that a report which falls within s 69(1)(a) must be given to the chairperson of the PCCC, the Speaker and the Minister;
  • In relation to a report which falls within s 69(1)(b), the CCC does not deliver the report to the Speaker or the Minister, but the PCCC may direct that the report be given to the Minister. As the report is the report of the CCC, s 69 must contemplate the delivery of the report by the CCC to the PCCC.
• On the facts, there was “no doubt” that the CCC in preparing the report and delivering it to the PCCC was acting under the authorisation in s 64 of the CC Act. [121].

As delivery to the PCCC is, relevantly, delivery to the Assembly, privilege attaches to the report. [121].

The effect of s 69(7) CC Act

For completeness, I note that the applicant argued that the delivery of the report to the PCCC did not attract parliamentary privilege, as ([131]):

“s 69(7) provides that the report receives immunity and privilege once tabled, it follows that immunity and privilege do not attach until that point.”

Justice Davis dismissed this point briefly. His Honour stated, “It would be a very strange result if a provision such as s 69(7), which is clearly intended to bestow privilege, operated so as to impliedly deny privilege arising from other sources”. [132].

Z Brereton of Counsel