Parliamentary privilege concepts clarified in CCC v Carne

Crime and Corruption Commission v Carne [2023] HCA 28

In its first decision on parliamentary privilege in some years, the High Court in Crime and Corruption Commission v Carne [2023] HCA 28 has clarified the scope of the privilege as it applies to documents emanating from outside Parliament.

Although the case concerned the privilege enshrined in the Parliament of Queensland Act 2001 (Qld) (POQ Act), the decision has broader implications because ss 8 and 9 of that Act have an effect indistinguishable from that of s 16 of the Parliamentary Privileges Act 1987 (Cth). Both statutes prohibit the impeachment of proceedings in Parliament (or in Queensland’s case, the Legislative Assembly) in courts, and ensure the continuing effect of article 9 of the Bill of Rights 1688 in each jurisdiction. Relevantly, “proceedings” is defined to include the presentation or submission of documents to Parliamentary committees, as well as the preparation of documents for the purposes of, or incidental to, transacting such business.

Background

Carne concerned a report about the respondent, Peter Carne, produced by the state Crime and Corruption Commission. Mr Carne was a former Public Trustee, having resigned following a corruption investigation conducted by the Commission.

After the investigation, which made no conclusive findings, the Commission prepared its report about Mr Carne which it proposed to make publicly available by tabling it in the Legislative Assembly. The Commission went about this through providing a version to the Parliamentary Crime and Corruption Committee and seeking a direction from the Committee pursuant to s 69 of the Crime and Corruption Act 2001 (Qld). That section required that certain reports, including those subject to Committee directions, be given to the Speaker of the Legislative Assembly who was then obliged to table it in the Assembly. 

With a view to resisting publication, Mr Carne commenced proceedings seeking a declaration that the report was not subject to s 69. The Committee deferred making any direction but did issue an evidentiary certificate stating that the report was “a document prepared for the purposes of, or incidental to, transacting business of the [Committee]”. The Commission submitted that the report was therefore “proceedings in the Assembly” for the purposes of the POQ Act, which would be impeached if the Supreme Court made the declaration sought by Mr Carne.

The primary judge dismissed Mr Carne’s application, and held that the report did attract parliamentary privilege. The Court of Appeal allowed an appeal finding that the report was first, not subject to s 69 and secondly, not “proceedings in the Assembly” despite the Committee’s certificate.

The Commission appealed to the High Court on both issues, with the Attorney-General for the Commonwealth and the Speaker of the Legislative Assembly intervening to make submissions on the privilege issue. Both interveners endorsed the Commission’s contention that the report was “proceedings in the Assembly”, on the basis that the report was prepared with the intention of being delivered to the Committee. The primary judge had made that factual finding, which remained unchallenged, on the basis of agreed facts about interactions between the Commission and the Committee.

The High Court’s decision on privilege

In two joint judgments, the High Court unanimously dismissed the appeal, and the contentions of the interveners, holding that parliamentary privilege did not attach to the Commission’s report. The Court also held that the report was not properly subject to s 69 and accordingly the Court of Appeal’s declaration was upheld.

On the privilege issue, Kiefel CJ, Gageler and Jagot JJ said that the report was not “proceedings in the Assembly” because it was prepared by the Commission and presented to the Committee for the Commission’s own purposes of publicising its content, not for the purpose of transacting business of the Committee. The majority accepted some arguments put by the Speaker, that it was the “functional connection” of a document to the business of an Assembly or committee that was relevant rather than the motivations of a person creating or receiving that document. On this basis, the mere presentation of a document to Parliament would not suffice to attract the privilege without any other connection to parliamentary business. The majority said in obiter, however, that if the Committee had validly made a direction under s 69 the report’s status may have been different.

Gordon and Edelman JJ considered that the parliamentary privilege question did not properly arise because, in advance of any direction, no act had actually been done in the course of, for the purposes of or incidental to, transacting business of the Committee. Their Honours explained that the relevant “purposes” to be considered were those of the Assembly or the Committee rather than any individual. Their Honours remarked that otherwise, privilege could attach to documents provided by strangers to Parliament and its committees, based on nothing more than the purposes of those strangers.

Documents created outside Parliament

Carne represents a modified approach to that taken in decisions of intermediate appellate courts concerning documents emanating outside parliament. Gordon and Edelman JJ cast doubt on Carrigan v Cash [2017] FCAFC 86, in which the Full Court considered the application of the privilege to a document that was prepared at the request of a Minister and subsequently tabled in the Senate. The Full Court approved the primary judge’s consideration of evidence which allowed his Honour to infer the author’s purposes for preparing the report, including his letter of appointment and public statements of the Minister. These materials all pointed towards the report constituting “proceedings in Parliament” because it had been prepared for the purpose of eventually being tabled so that its subject matter could be considered by both Houses.

Another example is Rowley v O’Chee [2000] 1 Qd R 207, where a Federal Senator refused to produce documents in his possession which were relevant to a radio broadcast which had resulted in defamation proceedings. The Queensland Court of Appeal determined that the documents did attract parliamentary privilege, accepting the Senator’s contention that they had been assembled and retained by him for parliamentary purposes. The documents directly related to matters raised by the Senator on multiple occasions in Parliament. McPherson JA opined that the word “purposes” in s 16 introduced “an element of subjectivity or intention” to the analysis.

Although it is not clear that Carrigan and O’Chee would have different outcomes following Carne, focus would now need to be more squarely on how the impugned documents might functionally connect with the business of Parliament, as opposed to the purposes of particular individuals such as their author or members of Parliament. As McPherson JA mused in O’Chee, it is now clearly “not … possible for an outsider to manufacture Parliamentary privilege for a document by the artifice of planting the document upon a Parliamentarian” – or submitting it to a Committee.