Flegg v Hallet

Peter Lyons J

7 November 2014

(This summary was prepared by Mr David Ananian-Cooper of Counsel)

This decision concerned the admission of evidence relating to the tabling of a lobbyist register at an estimates hearing of the Transport, Housing and Local Government Committee of the Legislative Assembly. During the estimates hearing, the plaintiff, at that time the Minister for Housing and Public Works, stated his belief that the lobbyist register was “very accurate” (the accuracy statement). The defendant subsequently published statements relating to the plaintiff including disputing the accuracy of the register. The plaintiff brought proceedings against the defendant in defamation. The accuracy of the lobbyist register is in issue because the plaintiff alleges as a basis for an award of aggravated damages that the defendant published the relevant statements, making the pleaded imputations, when he knew or ought to have known those imputations to be untrue. The defendant denies this allegation on the ground that at the time he did not believe the imputations to be untrue.

Peter Lyons J considered the application of ss 8, 9 and 36 of the Parliament of Queensland Act 2001 (“Parliament Act”) to the admissibility of the defendant’s evidence tendered to prove that he believed the imputations to be true. The plaintiff submitted that evidence impermissibly “impeached” the lobbyist register. Counsel instructed by the clerk of the Parliament was invited and made submissions amicus curiae.

Reflecting art 9 of the Bill of Rights (1 W & M, 2d sess, c 2, 1688), s 8 of the Parliament Act provides that: “The freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly.” It was held that this privilege belonged to the Assembly, and not its members. Consequently, it was held that the privilege was unaffected by the fact that a member of the Assembly had commenced proceedings the defence of which, in the defendant’s view, called for impeachment of the speech, debates or proceedings of the Assembly: applying Prebble v Television New Zealand Ltd [1995] 1 AC 321 and Rann v Olsen (2000) 76 SASR 450; disapproving Wright and Advertiser Newspapers Limited v Lewis (1990) 53 SASR 416.

His Honour then considered the exception in s 9(3) of the Parliament Act applicable to documents tabled to a committee, and authorized by that committee to be published. In regards to such documents, s 8 is deemed not to apply “in relation to a purpose for which [the document] was brought into existence other than for the purpose of being tabled in, or presented or submitted to, the Assembly or a committee or an inquiry”. Having regard to the relevant terms and objects of the Public Records Act 2002, the Right to Information Act 2009 and the Information Privacy Act 2009, it was held that a purpose for which the lobbyist register was brought into existence was “the creation and maintenance of a reliable record of contacts between lobbyists … and a Minister … to enable public scrutiny of such contacts and their outcome” (at [33]). Consequently, and giving the phrase “in relation to” a broad reading, it was held that there was a sufficient connection between the purpose for which the lobbyist register was brought into existence and the circumstances in which the proposed challenge to the register would arise in the proceedings.

Separately, s 36(1) purports to exclude any evidence “of an answer given by a person before the Assembly or a committee, or of the fact the person produced a document or other thing to the Assembly or a committee”. While acknowledging the broad literal meaning of this exclusion, it held to have a narrow meaning limited to the privilege against self-incrimination. The following considerations were relevant to this conclusion:

1. the major intrusion that such an extension of parliamentary privilege would represent: Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543 at [11];
2. the inconsistency with the effect of the application of the exception in s 9(3), described above;
3. the reference to the privilege against self-incrimination in the heading to the provision’s immediate predecessor in s 26(9) of the Parliamentary Committees Act 1995; and
4. the parliamentary intention expressed in the Explanatory Note to s 36(1) to “faithfully” reproduce s 26(9), and thus not to modify the field of operation of the section other than perhaps to expand it to a case where objection to evidence is taken on the basis of privacy and irrelevance.

Consequently, it was held that the exclusion in s 36 should be read as operating only in respect of an answer given, or to the production of a document, as the result of compulsion notwithstanding objection, either under ss 33(5)-(8) or ss 32(5) and (6) of the Parliament Act. As such, it was held that s 36 did not apply to the evidence proposed to be adduced in the proceedings.