21 September 2023
High Court rejects application of parliamentary privilege to a report prepared by a statutory agency for its supervisory parliamentary committee
Crime and Corruption Commission v Carne  HCA 28
The High Court has emphasised that whether parliamentary privilege attaches to a report prepared by a statutory agency for its supervisory parliamentary committee will depend on whether there is a connection between the report and the business of the committee. The focus of the inquiry is on the committee’s purposes, not the agency’s. The connection between the report and the committee’s business must be objectively ascertained.
The High Court unanimously found that a report prepared by the Crime and Corruption Commission and submitted to its supervisory Parliamentary Committee for the purpose of having it tabled in the Legislative Assembly did not meet the description of ‘proceedings in the Assembly’ within the meaning of s 9 of the Parliament of Queensland Act 2001 (Qld) (POQ Act) so as to attract parliamentary privilege.
This decision is significant for Commonwealth agencies and public servants because the definition of ‘proceedings in the Assembly’ in s 9 of the POQ Act is relevantly identical to the definition of ‘proceedings in Parliament’ in s 16(2) of Parliamentary Privileges Act 1987 (Cth). The High Court’s decision will therefore likely have direct application to the construction of the latter.
The decision is particularly significant for agencies which report to supervisory parliamentary committees. The decision suggests that where a report has not been authorised or requested by the relevant committee, and is not otherwise objectively connected with the business of that committee, the preparation of the report is unlikely to attract privilege. The High Court emphasised that the focus of the inquiry is on the purposes of the committee, not those of the agency which prepared the report. The existence of a ‘statutory relationship’ between the agency and committee may not be sufficient to establish the requisite connection. Further, the subjective intention of those who prepared the report will be of little, and perhaps no, relevance to determining whether the report was prepared for the purpose of transacting parliamentary business.
The decision is also likely to have implications beyond the context just described. In particular, the question of whether parliamentary privilege attaches to the preparation of any document that is to be presented or submitted to Parliament or a committee will need to be analysed against the principles stated by the High Court in this case.
The Commission and the Committee were established by the Crime and Corruption Act 2001 (Qld) (CC Act). The Commission’s functions included investigating complaints about corruption. The Committee’s functions included monitoring and reviewing the Commission’s performance of its functions.
In 2018, the Commission received a complaint that Mr Carne, the Public Trustee of Queensland, was involved in corrupt conduct. The Commission investigated the complaint but ultimately determined not to take any action against Mr Carne.
Despite this, the Commission prepared a report of its investigation. The report was the subject of several discussions between the Chairperson of the Commission and the Chairperson of the Committee, the effect of which were that the Commission would seek to have the report published by having it tabled in the Legislative Assembly, with the assistance of the Committee. The Commission subsequently requested the Committee give a direction under s 69 of the CC Act that the report be given to the Speaker of the Assembly. The consequence of such a direction was that the Speaker would be required to table the report and it would thereby be published.
Mr Carne brought proceedings in the Supreme Court of Queensland seeking relief including declarations that the report was not a report for the purposes of s 69 of the CC Act (such that it could not be the subject of a direction of the kind just described) and that the Commission, in preparing the report, had denied him procedural fairness. Upon request from the Commission, the Committee deferred its decision on whether to direct that the report be given to the Speaker pending the outcome of the legal proceedings.
Section 8(1) of the POQ Act provides:
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.
Section 9 of the POQ relevantly provides that:
(1) Proceedings in the Assembly include 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.
(2) Without limiting subsection (1), proceedings in the Assembly include—
(a) giving evidence before the Assembly, a committee or an inquiry; and
(c) presenting or submitting a document to the Assembly, a committee or an inquiry; and
(d) a document tabled in, or presented or submitted to, the Assembly, a committee or an inquiry; and
(e) preparing a document for the purposes of, or incidental to, transacting business mentioned in paragraph (a) or (c)…
The primary judge dismissed Mr Carne’s application, finding that the report and its preparation were privileged. The Court of Appeal (by majority) upheld Mr Carne’s appeal, finding that the Commission exceeded its power in preparing and delivering the report to the Committee, which precluded the application of parliamentary privilege.
The Commission was granted special leave to appeal from the Court of Appeal’s judgment. The Attorney-General for the Commonwealth and the Speaker of the Assembly were granted leave to intervene in support of the Commission.
High Court’s Reasoning
The High Court unanimously, albeit in two separate judgments, rejected the Commission’s argument that its preparation and presentation of the report came within the definition of ‘proceedings in the Assembly’ in s 9 of the POQ Act. That was because the facts of the case revealed that the report was not prepared for, or presented to, the Committee for the purpose of transacting business of the Committee. Rather, it was prepared by the Commission and presented to the Committee for the Commission’s own purposes ( and ).
In reaching that conclusion, both judgments emphasised that the central question was whether there existed an objectively ascertainable connection between the preparation of the report and the actual business of the Committee. To fall within the definition of ‘proceedings in the Assembly’, the report must have ‘actually [been prepared] for the purposes of doing the business of the Committee’ (). That was so despite the expansive terms of s 9(2)(e) of the POQ Act. Kiefel CJ, Gageler and Jagot JJ expressly rejected a ‘literal reading’ of that provision and concluded that it ‘should be read to refer to a document that is prepared for the purposes of, or incidental to, transacting business of the Assembly or a committee’ (). Accordingly, the fact that a document has been prepared for the purpose of it being presented or submitted to a committee is not, on its own, sufficient to bring it within the meaning of ‘proceedings in the Assembly’. Rather, the document, itself, must have a sufficient connection with the business of the committee that is distinct from its mere presentation or submission to the committee ().
Ascertaining the purpose for which a document was prepared, and whether that purpose is to transact the business of the Assembly or a committee, is ‘largely a question of fact’ () and an ‘objective inquiry’ (). Generally, the subjective intention of those who prepared the document will say nothing about the requisite connection with the work of the Assembly or committee ( and ). However, in this case, the evidence of the discussions between the Chairpersons of the Commission and Committee indicated the Commission’s purpose for preparing the report was to publish its findings ( and ). Thus, it was prepared for the Commission’s purpose, not the Committee’s (). The Committee did not authorise or request the report ( and ; see also ). Nor did the report ‘raise any business of the [Committee]’ (). Accordingly, the ‘requisite connection [was] not established on the facts of this case’ ().
That conclusion was not altered by an evidentiary certificate issued by the Chairperson of the Committee under s 55 of the POQ Act that the report was prepared for and presented to the Committee for its purposes. Such a certificate is not conclusive and, in this case, was rebutted by the evidence (; see also ).
Gordon and Edelman JJ expressly rejected the proposition that the ‘statutory relationship’ between the Commission and the Committee was sufficient ‘for the purposes of the Commission to become the purposes of the [Committee]’ (). Nor was it enough that the Committee ‘had a “particular responsibility for monitoring and review the commission’s performance” and that it had a general supervisory function under s 292(c) of the CC Act’ (). According to their Honours:
 … The [Committee] needed, at a minimum, to elect to exercise its powers or statutory functions to create a connection between the [report] and the transacting of its business.
Had the Committee, itself, elected to retain the report for the purpose of transacting its business, the report would have been privileged at that point. But this is not what occurred ().
Having concluded that the report and its preparation did not form part of ‘proceedings in the Assembly’ it was not necessary for the Court to determine the ‘large question’ of whether, if privileged, s 8 of the POQ Act would have precluded the relief granted by the Court of Appeal (, ,  and ).
Text of the decision is available at: https://eresources.hcourt.gov.au/downloadPdf/2023/HCA/28
AGS (Simon Thornton and Vanessa McGlynn from the Constitutional Litigation Unit) acted as solicitor, and Tim Begbie KC, Peter Melican and Edwina Smith appeared as counsel, for the Attorney-General, intervening.
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