CITATION: Law Society Northern Territory v Legal ...
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CITATION: Law Society Northern Territory v Legal
Practitioners Disciplinary Tribunal
(NT) & Anor [2020] NTSC 79
PARTIES: LAW SOCIETY NORTHERN
TERRITORY
v
LEGAL PRACTITIONERS
DISCIPLINARY TRIBUNAL (NT)
and
ALISTAIR WYVILL SC
TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory
jurisdiction
FILE NO: 2020-03306-SC
DELIVERED: 11 December 2020
HEARING DATE: 3 December 2020
JUDGMENT OF: Mildren AJ
CATCHWORDS:
CONSTITUTIONAL LAW – Parliamentary privilege – scope of “purposes
of or things incidental to the transacting of the business of the Assembly” –
whether legal practitioner’s advice regarding statements to be made in
parliament protected by parliamentary privilege – whether privilege attaches
to communications from a legal practitioner to a Parliamentarian – whether
absence of correlation between advice sought by Parliamentarian and
response given fatal to claim for parliamentary privilege –– scope of
s 6(2) Legislative Assembly (Powers and Privileges) Act 1992 (NT)
ADMINISTRATIVE LAW – Jurisdictional error – non-jurisdictional error
on the face of the record – admissibility of evidence
Bill of Rights 1688 (Imp), Article 9
Legal Profession Act 2006 (NT), Part 4.11
Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 3, s 4, s 6
Parliamentary Privileges Act 1987 (Cth) s 16
Supreme Court Act 1979 (NT) s 14, s 18, s 20
ACT v SMEC Australia Pty Ltd [2018] ACTSC 252, Carrigan v Cash [2016]
FCA 1466, Craig v South Australia (1995) 184 CLR 16 , Erglis v Buckley
[2005] QCA 404, Independent Commission of Corruption v Cuneen & Ors
[2015] HCA 14; 256 CLR 14, Kirk v Industrial Court (NSW) [2010] HCA;
(2010) 239 CLR 531, Obeid v R [2015] NSWCCA 309, OPEL Networks Pty
Ltd (In Liq) [2010] NSWSC 142, Project Blue Sky Inc v Australian
Broadcasting Authority (1998) 194 CLR 355, R v Grassby (1991) 55 A Crim
R 419, Rowley v Armstrong [2000] QSC 88, Rowley v O’Chee [2001] 1 Qd R
207, Sportsbet Pty Limited v State of New South Wales (No 3) [2009] FCA
1283, referred to
REPRESENTATION:
Counsel:
Plaintiff: A Moses SC with K Anderson
First Defendant: No appearance
Second Defendant: J Kirk SC with M Caristo
Solicitors:
Plaintiff: Hicksons Lawyers
First Defendant: Solicitor for the Northern Territory
Second Defendant: Squire Patton Boggs
Judgment category classification: A
Judgment ID Number: Mil20565
Number of pages: 32
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Law Society Northern Territory v Legal Practitioners Disciplinary Tribunal
(NT) & Anor [2020] NTSC 79
No. 2020-3306-SC
BETWEEN:
LAW SOCIETY NORTHERN
TERRITORY
Plaintiff
AND:
LEGAL PRACTITIONERS
DISCIPLINARY TRIBUNAL (NT)
First Defendant
AND:
ALISTAIR WYVILL SC
Second Defendant
CORAM: MILDREN AJ
REASONS FOR JUDGMENT
(Delivered 11 December 2020)
Introduction
[1] This is an application brought by Originating Motion by the Plaintiff
seeking orders in the nature of certiorari and prohibition against the First
Defendant, the Legal Practitioners Disciplinary Tribunal (NT) (the
Tribunal), with respect to two decisions of the Tribunal dismissing
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complaints made against the Second Defendant for alleged unprofessional
conduct or alternatively, unsatisfactory professional conduct contrary to
s 464 of the Legal Profession Act 2006 (NT). The First Defendant also ruled
as inadmissible a number of documents which the Plaintiff intended to
tender into evidence (the Evidentiary Rulings). The Plaintiff seeks
declaratory relief in respect of these documents and an order prohibiting the
Tribunal from making a final determination of the Disciplinary Application
without reconsideration of the Evidentiary Rulings.
[2] The Tribunal has made a submitting appearance and was excused from
attendance at the hearing.
Background facts
[3] In July 2012, the Cabinet of the Northern Territory Government approved
the offer of a Crown Lease over land known as the Stella Maris site to
Unions NT. At the time, Ms Delia Lawrie was Deputy Chief Minister and a
member of the Legislative Assembly. Ms Lawrie was involved in the Stella
Maris site and had worked towards the goal of the lease being offered to
Unions NT. On 3 August 2012 the documents offering and setting out the
conditions of the lease were signed by the then Minister for Lands and
Planning, Mr Gerald McCarthy (Mr McCarthy). A general election for the
Northern Territory Legislative Assembly was to take place on 25 August
2012. The Government entered into caretaker mode on 6 August 2012.
[4] The election resulted in a change of Government. The new Government
opposed the lease which was ultimately not granted to Unions NT. In
December 2013 the Government commissioned an inquiry into the
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circumstances of the purported decision to offer the lease and associated
matters (the Inquiry). Mr John Lawler was appointed as the Commissioner
of the Inquiry under the provisions of the Inquiries Act 1945 (NT).
[5] Ms Lawrie and Mr McCarthy were summoned to appear at the Inquiry to
give evidence and to produce documents. At that time, Ms Lawrie was
Leader of the Opposition and Mr McCarthy was the Deputy Leader. The
Second Defendant, who practised as a barrister at the independent bar, acted
as counsel for Ms Lawrie and Mr McCarthy at the Inquiry, instructed by a
firm of solicitors.
[6] Hearings before the Inquiry took place over a number of days between 12
February 2014 and 1 April 2014. On 26 May 2014 the Commissioner
presented his report to the Administrator. The report was tabled in the
Legislative Assembly on 19 June 2014. It contained a number of adverse
findings concerning Ms Lawrie’s conduct.
[7] On 19 May 2014, Mr Michael Gleeson, Ms Lawrie’s then Ch ief of Staff,
sent an email to the Second Defendant, to which he replied on the same day.
These emails formed the basis of Allegation One in the proceedings before
the Tribunal. In short, the Tribunal found that the emails forming the basis
of the allegation were inadmissible because they were subject to
parliamentary privilege, that it would be unlawful for the Tribunal to receive
them into evidence and dismissed Allegation One on 5 August 2020. The
Plaintiff contends that that decision amounted to jurisdictional error on the
part of the Tribunal and seeks an order quashing that decision.
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[8] Subsequently, the Tribunal sought submissions from the parties concerning
Allegation Three. This allegation is that on 19 June 2014 at or shortly before
10:04am, the Second Defendant telephoned Mr Gleeson advising that either
Ms Lawrie or Mr McCarthy should make a statement in the Assembly, in the
event that Commissioner’s Report, when tabled , contained adverse findings
about either of them, stating that those findings came as a complete surprise
when it is alleged that the Second Defendant knew that this assertion would
be false or alternatively, was reckless as to whether it was true or false.
[9] The evidence relating to the telephone call was contained in an email sent on
19 June 2014, and the particulars of the allegation, relied on an email chain
starting on 14 February 2014 and ending on 19 June 2014, as well as other
documents, the substance of which were set out in the affidavit of Fiona
Kepert sworn on 2 October 2020 as contained in Annexure A thereto at
paragraphs 3.1 to 3.30.
[10] After hearing submissions from the parties, on 4 September 2020 the
Tribunal held that the telephone communication by the Second Defendant
was protected by parliamentary privilege and dismissed this allegation.
[11] Following its decision on 4 September 2020, the Tribunal made a number of
oral rulings during a hearing from 7 September to 11 September 2020
rejecting the tender by the Plaintiff of various documents (the Excluded
Documents) into evidence (collectively, the Evidentiary Rulings). It is
common ground that the Evidentiary Rulings were made on the basis that
receipt of the Excluded Documents into evidence would be unlawful as a
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breach of parliamentary privilege for the same reasons given by the Tribunal
in its decision in relation to the Allegation One.
The Tribunal
[12] The Tribunal is established by s 669 of the Legal Profession Act 2006 (NT).
Membership of the Tribunal is provided for by s 670. The Chairperson of the
Tribunal may make rules for the practice and procedure of the Tribunal and
may issue practice directions: s 677A. If a disciplinary application is
brought in the Tribunal, the Tribunal must conduct a hearing into each
allegation particularised in the application: s 517. The Tribunal is bound by
the rules of evidence in conducting the hearing: s 521. The parties to the
application are the Law Society and the Australian legal practitioner against
whom the complaint has been made: s 522 (1). A complainant may also be
granted leave to appear as may any other person whom the Tribunal is
satisfied that it is appropriate to appear: s 522 (3). Parties and persons
granted leave to appear have the right to be heard and may be represented by
an Australian legal practitioner: s 522(5). The Tribunal has the power to
make a variety of orders if it finds the legal practitioner guilty, including an
order recommending that the name of the legal practitioner be removed from
the Roll, and order that the legal practitioner’s Practising Certificate be
suspended, or an order that the legal practitioner pay a fine as well as other
relief: s 525. Oddly, the power to dismiss a complaint is not mentioned but
it is common ground that such a power must be inferred. The Tribunal has
the power to make interlocutory or interim orders before making its final
decision: s 526 (1). The Tribunal may also order costs: s 529. If the legal
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practitioner is found guilty he or she has a right to appeal to the Supreme
Court: s 533 read with s 525. There is no right of appeal if the complaint is
dismissed, nor against an interlocutory order.
The relief sought
[13] The jurisdiction of this Court to grant the relief sought is not in dispute.
This Court has long had the power to grant certiorari, prohibition or what is
now called judicial review. So much is clear from s 14(1)(c) of the Supreme
Court Act 1979 (NT). Order 56 of the Supreme Court Rules provides for the
procedure in these circumstances to be commenced by Originating Motion.
[14] The Tribunal is not a Court. In Craig v South Australia1 the High Court
discussed the types of errors which are amenable to review by the former
Writ of Certiorari. The starting point was that a distinction is made between
inferior courts and administrative tribunals. In relation to the latter, the
Court said2:
At least in the absence of a contrary intent in the statute or other
instrument which established it, an administrative tribunal lacks
authority either to authoritatively determine questions of law or to
make an order or decision otherwise than in accordance with law…
…If such an administrative tribunal falls into error of law which
causes it to identify a wrong issue, to ask itself the wrong question,
to ignore relevant material, to rely on irrelevant material or, at least
in some circumstances, to make an erroneous finding or to reach a
mistaken conclusion , and the tribunal’s exercise or purported
exercise of power is thereby affected, it exceeds its authority or
powers. Such an error of law is jurisdictional error which will
invalidate any order or decision by the tribunal which reflects it.
1 (1995) 184 CLR 163. 2 At p179.
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[15] Certiorari will lie if there is jurisdictional error, or error of law on the face
of the record, even in the case of an error by a Tribunal. The Plaintiff
contends that the Tribunal erred in finding that the documents upon which it
sought to rely were subject to parliamentary privilege, and that this was an
error which went to its jurisdiction. Alternatively it was a non-jurisdictional
error on the face of the record.
[16] The Plaintiff’s argument is that the Tribunal wrongly determined on the
facts of the case that the evidence was inadmissible . This led to the two
allegations being dismissed as there was no evidence left to try those
matters. Thus, it was put that the error was jurisdictional in each case,
relying on Kirk v Industrial Court (NSW)3. In that case, the former Industrial
Relations Commission of New South Wales (which at the relevant time was
a tribunal) convicted Mr Kirk of occupational and safety offences. The High
Court held that the Commission made two errors of law which amounted to
jurisdictional error. The first error was that the Commission failed to
properly construe the section of the offence with which the appellant had
been charged, with the result that there was no evidence to support the
charge. The second error was that the Commission permitted the prosecution
to call the appellant as a witness in which the appellant was one of the
defendants. Although that was not a case where the Commission wrongly
rejected admissible evidence which amounted to jurisdictional error, I
accept that if the Tribunal wrongly construed the relevant statutory
3 [2010] HCA 1; (2010) 239 CLR 531 at [67] -[68].
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provisions which led to the exclusion of evidence relevant to its
determination of the complaint in this case, it is subject to judicial review.
The Court also said that ordinarily if relief is granted on the ground of
jurisdictional error, it is unnecessary to consider whether there is error on
the face of the record4, although that might not always be the case if there is
no jurisdictional error. The Court also confirmed that the record does not
ordinarily include the reasons of the Tribunal unless the Tribunal has chosen
to incorporate its reasons5. I am able to find that this has occurred in this
case. As was pointed out by the High Court in Craig6 a merely introductory
or incidental reference to the reasons for the decision does not produce the
consequence that the whole or part of the reasons somehow both become
part of both the formal order and “the record” of a particular court or
tribunal. In the present case, the orders of the Tribunal and the reasons were
in both cases incorporated into the same document. That being so, the result
will likely be the same in this case whether there is jurisdictional error or
error of law on the face of the record.
Parliamentary Privilege
[17] Article 9 of the Bill of Rights 1688 (Imp) provides:
That the Freedom of Speech and Debates or proceedings in Parlyament
ought not be impeached or questioned in any Court or Place out of
Parlyament.
[18] Section 6 of the Legislative Assembly (Powers and Privileges) Act 1992
(NT) (the LAPP Act) provides, relevantly:
4 Ibid, fn 3 at [78]. 5 Ibid fn 3, at [83]. 6 Craig v South Australia (1995) 184 CLR 163 at 181-182.
9
(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 Assembly and, as so applying, shall be taken to
have, in addition to any other operation, the effect of the
subsequent provisions of this section.
(2) For the purpose of the provisions of article 9 of the Bill of Rights,
1688 as applying in relation to the Assembly, and for the purposes
of this section proceedings in Parliament means all words spoken
and acts done in the course of, or for the purposes of or incidental
to the transacting of the business of the Assembly or of a
committee, and without limiting the generality of the foregoing
includes:
(c) the preparation of a document for the purposes of or
incidental to the transacting of any such business;
(3) In proceedings in a 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 the
assembly, 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 the
Assembly;
(b) otherwise questioning or establishing the credibility, motive,
intention of good faith or a person; or
(c) drawing, or inviting the drawing of, inferences or conclusions
wholly or partly from anything forming part of those
proceedings in the Assembly.
The reasons of the Tribunal relating to the first allegation
[19] After setting out the background facts which are referred to in paragraphs
[3] to [9] above, the Tribunal set out the particulars of the charge, which
consisted of the emails referred to in the two paragraphs below.
[20] On 19 May 2014 at 9:33am, Mr Michael Gleeson, who was at that time the
Chief of Staff to Ms Lawrie, sent an email to the Second Defendant
concerning statements made by Adam Giles, who at the time was the Chief
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Minister [and leader] of the Country Liberal Party [Government] . That email
said:
Hi Alistair,
In the last week’s censure debate Giles made these comments:
Mr GILES: You cannot even accept your name being presented this
way. My challenge to the Leader of the Opposition, the member for
Karama, and the members for Arnhem, Fannie Bay, Johnston and
Wanguri is quite simple. If you believe your claims to be true, take
them outside and made (sic) them public. If you do not have the
courage to take them outside, then clearly you do not believe these
claims to be true and you are simply playing politics in coward’s
castle. If you are true to your word about elements of corruption and
wanting enquiries- I challenge you, member for Barkly, you misled
the Stella Maris Inquiry…
Mr MCCARTHY: Will you call me Gerry Obeid outside? Bring your
Hansard.
Madam SPEAKER: Member for Barkly!
Mr GILES: I ask you to step aside from your position for misleading
an enquiry under the Inquiries Act, which has been proven to be true
and correct. Should you believe the professional standards of politics
and inquiries, I ask you to resign because you misled the Stella
Maris Inquiry, which you admit and for which you were found guilty.
Clearly the Chief Minister’s assertion is untrue - the Member for Barkly
has not be (sic) found guilty of anything and the Chief Minister’s
comments are highly prejudicial to the Inquiry’s findings and
recommendations.
Maybe the Chief Minister has received a final report which has already
drawn the findings which he asserts.
In the event that he hasn’t, one conclusion is that he has used
parliamentary privilege to pressure or influence the commission in the
preparation of its final report.
In my view even though the submission may not have been closed, this
would justify a strong letter to the Commissioner and could be used in
the debates in the Assembly.
What do you think, Alistair?
[21] At 12:02pm on that day, the Second Defendant sent an email to Mr Gleeson
in the following terms:
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Hi Mike,
I would think the best point to make- in parliament- is that Giles’
statements suggest he has been provided with a draft of the report
apparently for his review and approval. Getting this on the record in
the House will help with labelling this the CLP’s report. I would prefer
to adopt the position that this process never had any independence from
the beginning, they picked Lawler because they knew he would do what
he was asked to do and this just confirms that this whole process was a
set up from the beginning.
Writing to Lawler suggests that he has an independence to be
influenced! What do you think?
Dissenting report underway!
[22] The Tribunal said:
Ms Lawrie’s Chief of Staff in substance requested Mr Wyvill’s
thoughts on what should be done in response to Mr Giles’ words. Mr
Wyvill replied with what he thought was the best point to make in
Parliament and said that getting it on the record in the House would
help.
[23] The Plaintiff’s submission to the Tribunal referred to the decision of White J
in Carrigan v Cash7 which highlighted the absence in the present matter of a
clear causal connection between the advice of the Second Defendant and the
business of the Assembly. The Tribunal held that it did not accept that a
causal connection was essential for the purposes of s 6(2) of the LAPP Act
although the existence of a causal connection may well be relevant.
Nevertheless, the Tribunal found that there was a clear causal connection
between the advice of the Second Defendant and the business of the
Assembly, observing that “what was said in the Assembly is the explanation
for the Respondent’s advice being sought and the advice he gave included
7 [2016] FCA 1466.
12
what he thought was the best point to make in Parliament and that getting it
on the record of the House would help”. The Tribunal again dealt with this
point subsequently in relation to a submission that further evidence was
needed before the Tribunal could be satisfied that the advice proffered by
the Second Defendant was for the purpose of or incidental to transacting the
business of the Assembly. The Tribunal said:
We disagree. The Applicant was given leave to file any material on
which it relied in response to the Respondent’s written submission on
the parliamentary privilege issues and did so by referring the Tribunal
to portions of one of the Respondent’s affidavits, emails and letters.
This material did not contradict or diminish the obvious inferences to
be drawn from the emails in question. They speak for themselves. What
was said in parliament was expressly the subject of Ms Lawrie’s Chief
of Staff’s email requesting the Respondent’s thoughts and we infer that
in sending that email he was acting for her. The respondent’s email in
reply expressly referred to what he thought was the best point to make
in Parliament and getting it onto the record in the House. In these
circumstances we conclude that these emails are encompassed by s 6(2)
as they were prepared for the purposes of or incidental to the
transacting of the business of the Assembly. As such they come within
the meaning of “proceedings in Parliament.”
[24] For the reasons discussed below I do not think that this conclusion was in
error.
[25] The Plaintiff submitted to the Tribunal that the decisions in Rowley v
Armstrong8 and R v Grassby9 were inconsistent with the construction of
s 6(2) of the LAPP Act because they rejected the proposition that
parliamentary privilege extended to communications from non-members that
seek to persuade members to make particular statements in Parliament. The
Tribunal rejected this submission observing that these decisions turned on
8 [2000] QSC 88. 9 (1991) 55 A Crim R 419.
13
their own facts and that there was ample authority, referring to Erglis v
Buckley10 that communications from non-members may be covered by
parliamentary privilege. After referring to a number of decisions, including
Rowley v O’Chee11, Sportsbet Pty Limited v State of New South Wales (No
3)12, OPEL Networks Pty Ltd (In Liq)13 and ACT v SMEC Australia Pty Ltd14
the Tribunal concluded that it would be unlawful for the Tribunal to
consider Allegation One and it was dismissed.
The submissions of the parties and reasons for refusing relief
[26] Counsel for the Plaintiff began his submission by referring to the decision of
the New South Wales Court of Criminal Appeal in Obeid v R15. In that case,
a former member of the Legislative Council was charged with wilfully
misconducting himself in public office, a common law indictable
misdemeanour. It was alleged that whilst in office, he made representation
to a senior public servant with the object of securing a benefit for a business
in which he had an undisclosed interest. It was held that the indictment does
not concern matters incidental to parliamentary speech or proceedings. As
the Court said, the communication which was the subject of the offence was
not communicating with the executive generally, but communicating with
the public servant about the renewal of certain leases in particular which had
nothing to do with proceedings in Parliament. It is difficult to see the
10 [2005] QCA 404. 11 [2001] 1 Qd R 207. 12 [2009] FCA 1283. 13 [2010] NSWSC 142. 14 [2018] ACTSC 252. 15 [2015] NSWCCA 309.
14
relevance of this decision to the facts of this case, and no particular
submission was made concerning it.
[27] Next, it was submitted that counselling or soliciting by a non-member of
particular statements in Parliament by a member is insufficient to attract
parliamentary privilege, even if the statements relate to an issue recently
raised in parliamentary debates. Counsel referred to R v Grassby16 for the
proposition that whilst privilege could extend to non-members it was
confined to “petitioners”, “witnesses and others who so licit business in
parliament” in “the discharge of their duties”. It was put that it did not cover
the provision of information to members in other capacities, irrespective of
whether that information was subsequently used in proceedings in
Parliament. The facts in that case concerned a document prepared by Mr
Grassby, a former Member of Parliament, which contained defamatory
imputations against three persons said to have been complicit in the murder
of Donald MacKay. Mr Grassby had been charged with criminal defamation.
The document was given to the informant’s Member of Parliament for the
purpose of it, or the information contained in it, being used in Parliament.
[28] Allen J, after referring to a passage in T E May, Parliamentary Practice,
which stated that “although both Houses extend their protection to witnesses
and others who solicit business in Parliament, no such protection is afforded
to informants, including constituents of Members of the House of Commons
who voluntarily and in their personal capacity provided information to
16 (1991) 55 A Crim R 419.
15
Members, the question whether such information is subsequently used in
proceedings in Parliament being immaterial”, held that the material was not
privileged. As counsel for the Second Defendant pointed out in his
submissions, that case is not authority for the proposition expressed in such
wide terms as the Plaintiff submitted. The real ratio of the case was that
there was no immunity to just anybody who seeks to persuade a
Parliamentarian to say something in Parliament. The distinguishing feature
from that case is that the Second Defendant was not just a mere informant;
he was acting in his professional capacity as an adviser to the Leader of the
Opposition and was responding to a request for advice from the Leader of
the Opposition’s Chief of Staff.
[29] The same applies to the decision in Rowley v Armstrong17. In that case the
Plaintiff brought an action for defamation against the Defendant for two oral
publications the Defendant had made about illegal fishing by the Plaintiff.
The publications were made to a member of the Senate and to a member of
the Legislative Assembly of Queensland. In both cases, the publications
were unsolicited by either parliamentarian and the informant was acting in
his personal capacity. Jones J, after reviewing the authorities, held that “an
informant in making a communication to a parliamentary representative is
not regarded as participating in ‘proceedings in Parliament’ and therefore
the provisions of the Parliamentary Privileges Act do not apply”18.
17 [2000] QSC 88. 18 At para [34].
16
[30] Reliance was also placed on the decision of the Queensland Court of Appeal
in Rowley v O’Chee19. That case was concerned with whether documents in
the hands of Senator O’Chee, which came into his possession from outside
sources and were not prepared by him or someone on his behalf, were the
subject of the privilege. The Court of Appeal held that they were so
privileged. McPherson JA said20:
They [the documents] consist principally, if not exclusively, of letters
sent by or documents received from other persons or sources. It is not, I
think, possible for an outsider to manufacture Parliamentary privilege
for a document by the artifice of planting the document upon a
Parliamentarian: see Rivlin v Bilainkin [1953] 1 QB 485; and Grassby
(1991) 55 A Crim R 419. The privilege is not attracted to a document
by s16 (2) until at earliest the parliamentary member or his or her agent
does some act with respect to it for the purposes of transacting business
in the House….Generally, it seems to me that if documents like these
came into possession of Senator O’Chee and he retained them with a
view to using them, or the information they contain, for the purpose of
Senate questions or debate on a particular topic them it can be fairly
said that his procuring, obtaining or retaining the possession of them
were ‘acts done… for purposes of or incidental to the transacting of the
business’ of the House.”
[31] I agree with counsel for the Second Defendant that this case does not carry
the matter any further than was decided in R v Grassby or Rowley v
Armstrong, so far as concerns the facts of this case.
[32] The next authority relied upon by the Plaintiff is the decision of White J in
Carrigan v Cash21. In that case, the respondent, the Honourable Senator
Michaelia Cash, was the Minister for Employment in the Australian
Government. She appointed a retired Federal Court Judge, the Honourable
Peter Heerey AM QC to inquire into, and report on, complaints and related
19 [2001] 1 Qd R 207. 20 At 221. 21 [2016] FCA 1466.
17
issues concerning the Honourable Michael Lawler, who was then the Vice
President of the Fair Work Commission. Mr Heerey provided his report to
the Minister who published a redacted version of the report in the Senate.
The Plaintiff sought judicial review including certiorari and a declaration
that the report is void and of no effect. The issue was whether the report was
subject to parliamentary privilege. The Parliamentary Privileges Act 1987
(Cth) is for all intents and purposes identical with the LAPP Act.
[33] White J said22:
The question of whether words were spoken, or acts were done, for a
specified purpose is a question of fact. Prima facie, it requires an
assessment of the subjective purpose of the actor in question: O’Chee v
Rowley (1997) 150 ALR 199 at 208. However, as with so many areas of
the law, the ascertainment of that purpose is informed by an objective
consideration of the circumstances, that is, by consideration of those
matters which stand independently of any statement of the actor of his
or her purpose, especially statements made in retrospect.
[34] His Honour observed that the Minister’s purpose may also inform the
assessment of Mr Heerey’s purpose; the terms of reference included whether
there was a reasonable basis for both Houses of Parliament to consider
requesting the Governor-General to remove Vice President Lawler from the
Fair Work Commission on the grounds of proved misbehaviour or
incapacity. Mr Heerey did not state his task as being to advise the Minister
as to whether there was such a reasonable basis; instead he referred to the
consideration of the issue by the Parliament itself. Mr Heerey prepared his
report for the consideration of the Parliament and he had no other purpose;
accordingly the conduct of Mr Heerey in preparing and providing the report
22 At para [44].
18
and the conduct of the Minister both fell within the description of
“proceedings in Parliament”.
[35] Counsel for the Plaintiff submitted that this case demonstrates that the
request for advice from Ms Lawrie could only be salient where it was
directed to transacting the business of the Assembly and is distinguishable
from the business of an ordinary parliamentarian in respect of non-
parliamentary capacities or interests. Thus it was put that, contrary to the
approach adopted by the Tribunal, an examination of the scope of the
request for advice, the content of the advice, and the correspondence or
disjunction between the two, is essential. As to the first of these
propositions, it seems to me that if the purpose of the advice given in
relation to what a Parliamentarian might say during debates, even if related
only to defending the personal reputation of that Parliamentarian or for that
matter, the personal reputation of another Parliamentarian, is very much the
business of the Assembly. As counsel for the Second Defendant correctly
submitted, free speech by Parliamentarians in Parliament is at the very heart
of what is protected by Article 9 of the Bill of Rights. Certainly, Carrigan v
Cash is not authority against that proposition as that did not fall to be
considered in that case. I accept that whilst White J approached the matter
on the basis that the report’s purpose was not simply to advise the Minister,
but to inform the Parliament, his Honour did not deal with the question of
whether, had the report been prepared solely to advise the Minister, it would
have been protected. I also accept that White J did find a strong correlation
between the advice sought and the response given, but it does not
19
necessarily follow that the absence of such a strong correlation is fatal to a
claim for parliamentary privilege.
[36] Counsel for the Second Defendant referred me to the decision of the
Queensland Court of Appeal in Erglis v Buckley & Ors23. In that case, the
Leader of the Opposition in the Queensland Legislative Assembly made a
lengthy statement in Parliament criticising the conduct and management of
Ward 9D of a certain Queensland hospital. The source of the information
supplied to the Leader of the Opposition, was the plaintiff, Ms Erglis, who
had been a nurse on the relevant ward. A number of other nurses sought an
opportunity to refute these allegations and to that end, had a meeting with
the Minister for Health. Following that meeting, the Minister promised to
read out a letter in Parliament containing their side of the matter. The letter
was composed, written, signed by the defendants and transmitted to the
Minister who read it in Parliament. Ms Erglis sued for defamation, as the
letter contained some imputations which were found by a jury to be
defamatory of her. The question that arose on the appeal is whether the
defendants were protected by parliamentary privilege.
[37] McPherson JA, with whom Jerrad JA and Dutney J concurred, said24:
The effect of what he [the trial judge] said was that in doing the acts of
composing, typing and sending the letter to the Minister, the defendants
were entitled to the absolute protection of parliamentary privilege
under the Act, and that the plaintiff was therefore not entitled to
impeach or question them as she did in bringing her claim for damages
for defamation in respect of the letter ex 9. This, as will be seen, has
23 [2005] QCA 404.
24 At [31]-[32].
20
the consequence of extending the protection to persons who are not
themselves members of Parliament, but it seems to me that such an
extension is, in the circumstances of this case, necessarily implicit in
the statutory provisions themselves. Sections 8 and 9 of the Act do not
in terms confine the privilege to members of Par liament themselves.
That is consistent with the nature of the privilege as it has been
judicially characterised in the past. It is well settled that it belongs not
to the individual member but is the privilege of parliament as a whole:
see Rowley v O’Chee [2000] 1 Qd R 207, at 224-225, and the
authorities cited there. Furthermore, as his Honour pointed out or
implied, it would be wrong to assume that the protection afforded by,
for example, s 9(2)(e), is restricted only to a member of the Assembly
who prepares the document himself or herself; the protection must be
intended to cover those who prepare and provide the document for him
or her to use in transacting the business of the Assembly. Unless
therefore the statutory protection is designed to benefit onl y members
who have unusually retentive memories, other persons will inevitably
be drawn into and become involved in the member’s behalf in the act of
preparing the document for presentation to the Assembly, or in other
acts incidental to that business of the Assembly.
[38] What Erglis demonstrates is that the privilege is not confined to the
member; it is available even to outsiders who prepare a document for the use
of the member at the member’s request if the document is to be used in
transacting the business of the Assembly. Counsel for the Second Defendant
submitted that the Second Defendant’s email did not seek to manufacture
Parliamentary business. On the contrary, it counselled the making of a
statement in Parliament in response to a statement made in Parliament in
relation to a report that was required to be tabled in Parliament, doing so in
response to a request for advice from the Chief of Staff of the Leader of the
Opposition. The Second Defendant was not an “outsider” as is the case with
a person who sends unsolicited documents to Parliamentarians. I agree.
Clearly, the Second Defendant’s advice was being sought by the terms of the
Gleeson email: “What do you think, Alistair?”
21
[39] Counsel for the Plaintiff submitted that Erglis provides no clear answer to
the question to be determined in this case. In that case the letter
corresponded within the scope of the request and additionally the letter itself
was to be published in Parliament. So it was put that the connection between
the Second Defendant’s email and the request for advice in the Gleeson
email did not sufficiently correspond so as to afford protection. The
following matters were relied upon to support this submission. First, to the
extent that the request contemplated anything being impugned, it was Mr
Giles’ statements in the House. Secondly, the Second Defendant’s email
recommended that Ms Lawrie impugn the integrity of the Commissioner.
There was therefore a major disjunction between the scope of the request
and the subject matter for advice. The Second Defendant’s email stated that
the matters he suggested could be used in unspecified debates in the
Legislative Assembly. There was nothing to indicate that the contents of the
“letter” (presumably the proposed letter to the Commissioner) were intended
to inform the Assembly on a particular issue or otherwise assist in the
transacting of the business of the Assembly. The advice was directed at the
protection of advancement of the private interests of Ms Lawrie, in
particular, her reputational interests as a witness in the Inquiry, and not in
relation to the discharge of her functions in the Assembly. Therefore, the
connection between the Second Defendant’s email and the transacting of the
business of the Assembly was not materially greater than the connections
that were held to be insufficient in Grassby and Rowley v Armstrong.
22
[40] There is no authority which authoritatively deals with the point raised by
counsel for the Plaintiff, namely that there must be a sufficient
correspondence between the request and the advice given.
[41] Counsel for the Second Defendant submitted that the Plaintiff’s argument
mischaracterises the emails. Part of the Gleeson email suggests that the
Chief Minister had already received the Commissioner’s report, as otherwise
how would he know that Mr McCarthy had been found guilty of misleading
the Commissioner? At that time, the report had not been presented to the
Administrator. Alternatively, Mr Gleeson surmised that the Chief Minister
had used parliamentary privilege to put pressure on or influence the
Commissioner’s final report. The Second Defendant’s email dealt directly
with that question in the first sentence of his email. The second part of the
Second Defendant’s email was directed at “the process” adopted and the
Commissioner not being independent and making these points in Parliament
rather than writing a “strong letter to the Commissioner”. Mr Gleeson was
seeking the Second Defendant’s advice on both questions insofar as he asked
about the possibility of the Chief Minister putting pressure or influence on
the Commissioner. Further, it was put that it was the Second Defendant’s
intention that was of primary importance and it was clear that his purpose
was to suggest that Ms Lawrie make certain statements in the Legislative
Assembly in response to those of Mr Giles. The point was also made that in
a situation such as the present, when the Second Defendant was acting for
Ms Lawrie, that he would normally be expected to provide advice not merely
on suggestions coming from her or her staff as to how to respond to an
23
attack in Parliament, but what, in his opinion, is the best way to respond,
which is what he did. I should add that he left his suggestions for the
consideration of Mr Gleeson because at the end of the email, he asks “What
do you think?” implying that the discussion of how best to respond was still
open for further consideration. I accept counsel for the Second Defendant’s
submission.
[42] In OPEL Networks Pty Ltd (in liq)25 Austin J considered a claim for
parliamentary privilege in respect of an email prepared by an assistant
secretary to the Prime Minister and Cabinet which disclosed a Question
Time brief containing information for a Minister’s use in Ques tion Time in
the Senate; and a Question Time brief to be used by the Prime Minister in
Question Time in the House of Representatives. The briefs had been
prepared by the sender of the email. Austin J upheld the privilege saying26:
It seems to me to be necessarily true, and not dependent upon the
evidence of the particular case, that if briefings to parliamentarians for
Question Time and other Parliamentary debate are amenable to
subpoenas and other orders for production, the Commonwealth officers
whose task it is to prepare those documents will be impeded in their
preparation, by the knowledge that the documents may be used in legal
proceedings and for investigatory purposes that may well affect the
quality of information available to Parliament. To take a step that
would have that consequence would, I think, derogate from the force of
the Bill of Rights and run contrary to the historical justification for that
legislation, so ably sketched by McPherson JA (and see Mees v Road
Corporation (2003) 128 FCR 418; [2203] FCA 306 and [75-79] per
Gray J).
25 [2010] NSWSC 142. 26 At [118].
24
[43] What OPEL and other authorities27 establish is that documents prepared by
Ministerial staff for use by a Minister in the business of the Parliament will
ordinarily be privileged. I see no distinction between a Minister and any
other Parliamentarian. In ACT v SMEC Australia Pty Ltd28, the privilege was
extended to drafts of briefs to the Minister. I see no reason to differentiate
between an advisor or the staff of a Parliamentarian and a legal practitioner
employed to advise a Parliamentarian on what to say or do in the Legislative
Assembly. To the extent that the Second Defendant’s email could be
considered as only a suggested response which may or may not have been
accepted by Ms Lawrie, it is relevantly no different from a draft.
[44] Counsel for the Plaintiff submitted that when considering the scope of
purposes of or things incidental to the transacting of the business of the
Assembly, it is important to focus on the business of the Assembly rather
than the business of individual members of the Assembly which may have a
broader scope. It was put that the evident statutory purpose of s 6 of the
LAPP Act is to safeguard the functioning of the Assembly as an organ of
Government, not to safeguard the interests of individual members, even
where those individual interests may be affected by other events in
Parliament. Counsel referred to the decision of the High Court in
Independent Commission Against Corruption v Cunneen & Ors29 where the
27 For example, ACT v SMEC Australia Pty Ltd (2018) ACTSC 252. 28 At [79]. 29 [2015] HCA 14; 256 CLR 14 at [31] .
25
plurality referred to what was said in Project Blue Sky Inc v Australian
Broadcasting Authority30:
The primary object of statutory construction is to construe the relevant
provision so that it is consistent with the language and purpose of all
the provisions of the statute. The meaning of the provision must be
determined by reference to the language of the instrument viewed as a
whole.
A legislative instrument must be construed on the prima facie basis that
its provisions are intended to give effect to harmonious goals. Where
conflict appears to arise from the language of particular provisions, the
conflict must be alleviated, so far as possible, by adjusting the meaning
of the competing provisions to achieve that result which will best give
effect to the purpose and language of those provisions while
maintaining the unity of all the statutory provisions.
[45] Counsel referred to s 6(2) which provides, relevantly, that “proceedings in
Parliament means all words spoken and acts done in the course of or for the
purposes of or incidental to the transacting of the business of the Assembly
or of a committee, and without limiting the generality of the foregoing
includes:
(a) the giving of evidence before the Assembly or a committee, and
evidence so given;
(b) the presentation or submission of a document to the Assembly or a
committee;
(c) the preparation of a document for the 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 the Assembly or a committee and
the document so formulated, made or published.
30 (1998) 194 CLR 355 at 381-382; [69]-[70].
26
[46] It was submitted that sub-paragraphs (a), (b) and (d) are tied to intrinsic
functions of the Assembly as an integrated organ of government rather than
the individual capacities of Parliamentarians.
[47] As counsel for the Second Defendant pointed out in reply, Article 9 of the
Bill of Rights is in very wide terms. In effect, whatever is said in Parliament
is protected, whether it is said by an individual member or a member of the
Government Ministry, and whatever it relates to, regardless of the motive of
the member raising it. It is perfectly within the scope of that freedom for
Ms Lawrie to make any statement she wishes to make in the Assembly in
order to protect her own reputation or that of another member, or to respond
to criticism of her or another member, just as it was within the scope of that
freedom for Mr Giles to say what he is alleged to have said. The business of
the Assembly includes whatever is said in the Assembly by a member. The
purpose of s 6(2) is not to place a limitation on Article 9 of the Bill of
Rights, but if anything, to expand it. I reject the submission that s 6(2)(c) is
to be read down in the manner contended by the Plaintiff.
[48] In conclusion, I can find no error by the First Defendant in the decision it
reached that the documents sought to be relied on to support Allegation One
were inadmissible because they were protected by parliamentary privilege. It
was conceded that if this were so, there was no evidence upon which the
First Defendant could convict the Second Defendant of Allegation One and
that it was rightfully dismissed.
Allegation Three
[49] This allegation is in the following terms:
27
On 19 June 2014, the Respondent engaged in professional misconduct,
contrary to section 454 of the LPA, by breaching Rule 59(a)(i) of the
Barrister’s Conduct Rules. The Respondent advised Mr Michael
Gleeson, the Chief of Staff to Ms Delia Lawrie, the then Leader of the
Opposition in the Northern Territory, that in the event that the report of
the Stella Maris Inquiry contained adverse findings about Ms Lawrie or
Mr McCarthy, a public statement should be made by Ms Lawrie that the
findings came “as a complete surprise”’ when the Respondent knew this
assertion would be false or alternatively, was reckless as to whether it
would be true or false.
[50] The advice given was in a telephone conversation with Mr Gleeson shortly
before 10:09am on 19 June 2014. The evidence relied upon to prove this
allegation was contained in an email from Mr Gleeson to Ms Lawrie sent at
10:09am that day, in the following terms:
Alistair just called. He says we should say words to the effect:
“We have only just received this report and clearly we will need some
time to digest the findings”.
“We weren’t given any notice that there would be adverse findings and
these findings come as a complete surprise”.
“We won’t be making any further comment now as there is a real
chance we will be taking this matter to the Supreme Court”.
[51] This particular email is but one in a chain of emails dating back to
14 February 2014 which related to the question of whether or not the
findings came as a surprise. Of particular relevance in this case was an
email of 18 June 2014 at 12:40pm from Mr Gleeson to the Second Defendant
which attached two documents headed “Delia Notes” one of which continues
“Stella Maris Inquiry (assuming adverse findings)” and the other continues
“Stella Maris Inquiry (assuming no adverse findings)”. There was a further
email at 8:40pm that day from Ms Lawrie to the Second Defendant that she
had Charlie Phillips working further on responses to Parliament and had
28
asked Mr Gleeson to ensure the argument around the Commissioner’s Report
would be ready tomorrow. On 19 June 2014 at 10:25am Mr Gleeson sent an
email to the Second Defendant headed “Delia speaking notes”. At 10:33am
on the same day the Second Defendant responded by email to Mr Gleeson
and Ms Lawrie re “Delia Speaking Notes” advising that all was fine and
referring to what should be reinforced. At 10:54am (after the subject
telephone call) Ms Lawrie sent an email to Mr Gleeson:
Send Alistair my speech notes from Charlie Phillips for consideration. I
will of course follow Alistair’s advice.
[52] That night, the Commissioner’s Report was tabled in the Assembly. When
speaking in the Assembly in response to the Report, Ms Lawrie’s comments
reflected some of the Second Defendant’s advice insofar as she said: “We
have only just received the Report” and on three occasions said “…no notice
of adverse findings has been provided to us”.
[53] The Tribunal made some factual errors in setting out the facts. The Tribunal
incorrectly referred to the time of the Second Defendant’s telephone
conversation with Mr Gleeson as occurring at a short time before 10:39am
instead of 10:09am, and incorrectly referred to the timing of the email at
10:54am, stating instead to it being sent at 10:20am. I am not persuaded that
these minor factual errors vitiated the Tribunal’s decision.
[54] The Tribunal concluded that the conversation was privileged because it fell
within the words of LAPP Act, s 6, in that it was “words spoken…in the
course of, or for the purposes of or incidental to, the transaction of the
business of the Assembly”. The Tribunal also said that “consistent with our
29
view of the applicable law as explained in the reasons we published on
5 August 2020 referable to Allegation One, it is not lawful for the Tribunal
to receive evidence of Mr Wyvill’s advice as it is being tendered in order to
question the truth or good faith of what he advised Ms Lawrie to say in the
Assembly”, referring to s 6(3)(a) of the LAPP Act. The Tribunal also held
that “the same outcome follows if the admonition in Article 9 of the Bill of
Rights 1688 (Imp) is applied to the Second Defendant’s advice. To allow it
to go into evidence would allow proceedings in Parliament to be impeached
within the meaning of that term as explained in the authorities referred to in
our reasons of 5 August 2020”.
[55] I note that in submissions made to the Tribunal before that ruling was made,
counsel for the Plaintiff said “that if you apply the reasoning in your August
5 decision, then Allegation Three stands in the same position as Allegation
One. And I could not put to you a submission that differs from that because
I am bound to accept at this stage, subject to judicial review, your reasoning
in your 5 August decision”.
[56] Despite that concession, counsel for the Plaintiff submitted that there was no
request for any advice prior to the telephone call, and that therefore
parliamentary privilege did not arise in relation to the email. The Plaintiff’s
submissions concentrated on the telephone advice given rather than on the
document which evidences the advice. That document was an email from
Mr Gleeson to Ms Lawrie. Plainly that document was privileged as it came
from Ms Lawrie’s Chief of Staff to her and it directly related to what she
was being advised to say in Parliament. So far as the telephone advice itself
30
is concerned, although there was no actual request for advice, the
circumstances show that the preceding emails to that advice were not just
being provided for the Second Defendant’s information. It was only natural,
and to be expected, that he would respond in some way. When one goes to
the “Delia notes” which preceded the advice, there is specific reference to
the matter of whether previous notice of any adverse findings had been
given. In the “Delia notes…Stella Maris Inquiry (assuming adverse
findings)” that subject is raised in paragraphs 2 and 3. The only matter the
Second Defendant added in addition is that statement was that “this (ie the
adverse findings) came as a complete surprise to us”.
[57] Counsel for the Second Defendant in his submissions pointed out that in the
OPEL decision, there was no request for any advice, but nevertheless the
Question Time briefs were held to be subject to privilege. That was because
of the relationship between the relevant Ministers and the person who
drafted the briefs was doing what was expected of him in the ordinary
course. In this case, the relevant relationship between the Second Defendant
and Ms Lawrie and the context in which that advice was given explains why
the Second Defendant provided the advice. The Second Defendant’s purpose
was not to advance some objective of his own; it was to assist Ms Lawrie to
deal with an attack which was expected to be made against her and
Mr McCarthy in the Parliament.
[58] In my opinion the telephone call between the Second Defendant and
Mr Gleeson was privileged for essentially the same reasons as the emails in
Allegation One were privileged. Although the First Defendant made some
31
mistakes in the timings of the emails, this did not vitiate the First
Defendant’s decision which was correct on the facts.
The Declaration sought
[59] The Plaintiff has sought a declaration that the admission into evidence of the
documents listed in Schedule 1 for the purposes of the Disciplinary
Application is not rendered unlawful by s 6(2) of the LAPP Act and/or
Article 9 of the Bill of Rights.
[60] It is agreed between the parties that the Tribunal rejected the tender of each
of the documents listed in Schedule 1 to the Originating Motion on the sole
basis that receiving them would be unlawful as a breach of parliamentary
privilege.
[61] It is also agreed between the parties that the Plaintiff acknowledged before
the Tribunal, and the Second Defendant agreed, that if the Tribunal adopted
the same approach to s 6(2) of the LAPP Act and the law of parliamentary
privilege as it had in respect of the dismissal of Allegation One of the
Disciplinary Application, it would follow that the Tribunal would exclude
from evidence the documents listed in Schedule 1 to the Originating Motion.
[62] No submission was made before me that I should re-examine the documents
myself and I was not taken to them by either counsel. In those
circumstances, in the light of my decision in relation to the claims for
certiorari, I decline to make the declaration sought.
Orders
[63] The relief sought in the Originating Motion is refused.