PATRICK v THE STATE OF SOUTH AUSTRALIA [2026] SASCA 65

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (THE HONOURABLE JUSTICE HUGHES) [2025] SACAT 63 Appellant: REX PATRICK Counsel: MR C JACOBI KC WITH MR D LORBEER - Solicitor: HWL EBSWORTH LAWYERS Respondent: THE STATE OF SOUTH AUSTRALIA Counsel: MR M WAIT SC WITH MR J METZER - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 04/12/2025 File No/s: CIV-25-008808 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. PATRICK v THE STATE OF SOUTH AUSTRALIA [2026] SASCA 65 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice B Doyle) 18 June 2026 ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS - CABINET AND EXECUTIVE COUNCIL DOCUMENTS CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - GENERAL MATTERS - PRIVILEGES - PRIVILEGE OF PARLIAMENTARY DEBATES AND PROCEEDINGS - STATES AND TERRITORIES ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS On 30 January 2023, the Chief Executive of the Department for Environment and Water (‘Department’) attended as a witness before the Budget and Finance Committee of the Parliament of South Australia. In advance of his scheduled attendance, the Chief Executive’s departmental officers prepared briefing notes to assist him in answering questions from the Committee about the operations and financial performance of the Department. Two such documents were provided to the Chief Executive on 27 January 2023 (the ‘Executive briefing notes’). The appellant made a request to the Department (as the relevant ‘agency’) for access to various documents pursuant to the Freedom of Information Act 1991 (SA) (‘FOI Act’). The Executive briefing notes fell within the scope of the request. The agency denied the appellant’s request on the basis that the Executive briefing notes were exempt documents by reason of cl 17(c) of Schedule 1 to the FOI Act. Following a successful review of the agency’s decision to the South Australian Ombudsman, the agency brought proceedings in the South Australian Civil and Administrative Tribunal (‘Tribunal’) seeking a substituted determination that -- 1 of 65 -- the documents were exempt from disclosure. The Tribunal published two sets of reasons and ultimately determined that the Executive briefing notes were exempt pursuant to cl 17(c) of Schedule 1 to the FOI Act. The appellant now appeals against the decision of the Tribunal, contending that: 1. a document will only be exempt by reason of cl 17(c) of Schedule 1 to the FOI Act if it contains matter any public disclosure of which would infringe the privilege of Parliament; 2. neither the giving of access nor public disclosure pursuant to the FOI Act of documents prepared for the purpose of parliamentary proceedings results in ‘freedom of speech and debates or proceedings in Parliament’ being ‘impeached or questioned in any court or place out of Parliament’, within the meaning of Article 9 of the Bill of Rights 1688 (‘Bill of Rights’); and 3. alternatively, and in any event, a conclusion that public disclosure of the documents in question would have that effect cannot be reached merely on the basis that they form part of a class of documents prepared to assist a person appearing before a parliamentary committee. Leave to appeal was granted at the hearing. Held (per B Doyle AJA, Livesey P and S Doyle JA agreeing), allowing the appeal: 1. public disclosure pursuant to the FOI Act of documents prepared for the purpose of parliamentary proceedings does not result in ‘freedom of speech and debates or proceedings in Parliament’ being ‘impeached or questioned in any court or place out of Parliament’, within the meaning of Article 9 of the Bill of Rights; 2. even if public disclosure might tend to discourage candour or completeness in the preparation of such documents, or inhibit a person’s preparedness or freedom to participate fully in those proceedings, that effect does not involve ‘impeaching’ free speech and debates or proceedings in Parliament in a ‘place out of Parliament’ in the requisite sense; 3. the Executive briefing notes are not exempt from disclosure by operation of cl 17(c) of Schedule 1 to the FOI Act; 4. in those circumstances, it is unnecessary finally to resolve the first and third grounds of appeal. Acts Interpretation Act 1915 (SA) s 48; Australian Courts Act 1828 (Imp); Bill of Rights 1688 art 9; Calendar (New Style) Act 1750; Constitution Act 1934 (SA) ss 5, 38, 39; Evidence Act 1929 (SA) ss 68, 69A, 70; Freedom of Information Act 1991 (SA) ss 3(1)(a), 3(2)(a), 3(2)(b), 3A(1)(a), 5A, 6, 12, 13, 14, 14A, 20(1)(a), 22(1), 23, 29, 39, 40, 48, 50, 51, sch 1 cll 7(1)(a), 17(a), 17(b), 17(c); Parliamentary Privileges Act 1987 (Cth) s 16(2), 16(3); Privilege of Parliament Act 1512; Public Sector Act 2009 (SA); Public Sector Regulations 2010 (SA) reg 8; Public Works Committee Act 1914 (Tas) s 16(1); South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 71(2), referred to. The President of the Legislative Council of Western Australia v Corruption and Crime Commission (No 2) [2021] WASC 223, applied. Rowley v O’Chee [2000] 1 Qd R 207, distinguished. Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223; Armstrong v Budd (1969) 71 SR (NSW) 386; Arena v Nader [1997] HCA Trans 321; Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469; Australian Capital Territory v SMEC Australia Pty Ltd (2018) 337 FLR 390, [2018] ACTSC 252; Barilaro v Shanks-Markoniva (No 2) (2021) 287 FCR 597; Cadia Holdings Pty Ltd v State of New South Wales (2010) 242 CLR 195; Chagnon v Syndicat de la function publique et parapublique du Quebec [2018] 2 SCR 687; Channel Nine SA Pty Ltd v Police [2014] SASC 69; Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks (2024) 281 CLR 525; Church of Scientology of California v Johnson-Smith [1972] 1 QB 522; Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1; Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453; Commonwealth v ALJ20 (2021) 273 CLR 43; Cook v Cook (1986) 162 CLR 376; CPB Contractors Pty Ltd v State of South Australia [2024] SASC 46; Cornwall v Rowan (2004) 90 SASR 269; Crane v Gething (2000) 97 -- 2 of 65 -- FCR 9, [2000] FCA 45; Department for Environment and Water v Patrick [2024] SACAT 73; Department for Environment and Water v Patrick [2025] SACAT 63; Egan v Willis (1998) 195 CLR 424; Ellis v The King [2023] SASCA 28; Erglis v Buckley [2003] QSC 440; Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435; Guergis v Novak 2022 ONSC 3829; Hammond v Commonwealth (1982) 152 CLR 188; Hanna v Sibbons (2010) 108 SASR 182; Hearne v Street (2008) 235 CLR 125; Horne v Barber (1920) 27 CLR 494; Jay v Topham (1689) 12 ST 822; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Kielley v Carson (1843) 4 Moore PC 63; Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133; Lockwood v Commonwealth (1954) 90 CLR 177; Makudi v Baron Triesman of Tottenham [2014] QB 839; M v Home Office [1994] 1 AC 377; Patrick v The State of South Australia [2025] SASCA 108; Pepper (Inspector of Taxes) v Hart [1993] AC 593; Pickin v British Railways Board [1974] AC 765; Reavey v Century Newspapers Ltd [2001] NIQB 17; Re OPEL Networks Pty Ltd (in liq) (2010) 77 NSWLR 128; Re Royal Commission into Certain Crown Leaseholds [1956] St R Qd 225; R (Miller) v Prime Minister [2020] AC 373; R v Boston (1923) 33 CLR 386; R v Chaytor [2011] 1 AC 684; R v Jackson (1987) 8 NSWLR 116; R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157; Sankey v Whitlam (1978) 142 CLR 1; Sportsbet Pty Ltd v Harness Racing Victoria (No 4) [2011] FCA 196; Sportsbet Pty Ltd v New South Wales (No 3) (2009) 262 ALR 27; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Szwarcbord v Gallop (2002) 167 FLR 262; Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] 1 WLR 2825, [2007] UKPC 48 ; United States v Rayburn House Office Building, Room 2113 497 F 3d 654 (DC Cir, 2007); Victorian Taxi Families Inc v Taxi Services Commission (2018) 61 VR 91; Viro v The Queen (1978) 141 CLR 88, discussed. Attorney-General (Tasmania) v Casimaty (2024) 98 ALJR 1139; [2024] HCA 31; Crime and Corruption Commission v Carne (2023) 280 CLR 555; Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20; Mees v Roads Corporation (2003) 128 FCR 418; Prebble v Television New Zealand [1995] 1 AC 321; Rann v Olsen (2000) 76 SASR 450; R v Murphy (1986) 5 NSWLR 18; Wright v Lewis (1990) 53 SASR 416, considered. -- 3 of 65 -- -- 4 of 65 -- PATRICK v THE STATE OF SOUTH AUSTRALIA [2026] SASCA 65 Court of Appeal – Civil: Livesey P, S Doyle JA and B Doyle AJA LIVESEY P: Introduction 1 At issue in this appeal is whether the disclosure of Parliamentary or Executive briefing notes, prepared to assist the Chief Executive of the Department for Environment and Water answer questions before a Parliamentary committee, are exempt from disclosure under the Freedom of Information Act 1991 (SA). 2 Under cl 17 of sch 1 to the FOI Act a document is an “exempt document” if it “contains matter the public disclosure of which would, but for any immunity of the Crown … (c) infringe the privilege of Parliament”. 3 As argued in this Court, the question of exemption turned on whether the public disclosure of these documents would mean that “freedom of speech and debates or proceedings in Parliament” would be “impeached or questioned in any court or place out of Parliament” within Art 9 of the Bill of Rights 1688 (UK).1 Article 9 is reflected in s 38 of the Constitution Act 1934 (SA).2 Determination of the appeal 4 I agree with B Doyle AJA, for the reasons he gives, that the briefing notes are not exempt from disclosure. 5 In my view, it is appropriate to emphasise the following points. First, disclosure is contemplated under a statutory FOI scheme designed to confer a legally enforceable right of access to documents held by the executive arm of government, to the extent it is defined as an “agency”,3 on members of the public and Members of Parliament.4 6 Secondly, whilst the scheme promotes “openness in government and accountability of agencies”, the statutory right to disclosure is “qualified”, for it is made subject to exclusions or exemptions.5 These include that the Parliament and its officers or committees, as well as courts and judicial officers, are not a relevant 1 Article 9 effectively provides that the freedom of speech, and debates or proceedings in Parliament, shall not be impeached or questioned in any court or place out of Parliament, and it applies to the Parliament and courts of South Australia, Ellis v The King (2023) 306 A Crim R 404, [29] (Livesey P, Bleby JA and Nicholson AJA). 2 Section 38 of the Constitution Act 1934 (SA) stipulates that the privileges, immunities and powers of the Legislative Council and House of Assembly, “and of the committees and members thereof”, are the same but no greater than those held by the House of Commons on 24 October 1856, “whether … held, possessed, or enjoyed by custom, statute, or otherwise”. 3 FOI Act, s 12, concerning the documents of an “agency” as defined in s 4. 4 FOI Act, s 3A(2). 5 Patrick v The State of South Australia [2025] SASCA 108, [33] (Livesey P, Bleby and Stanley JJA). -- 5 of 65 -- [2026] SASCA 65 Livesey P 2 “agency”,6 and sch 1 sets out the categories of documents that are exempt from disclosure. The interpretation of each exemption, such as cl 17(c) of sch 1 in this case, must be undertaken according to the statutory context which reflects a “compromise between competing public interests”,7 and in which “the FOI Act carries no general purposive indicator that the exceptions should be read in such a way as to favour (or not favour) disclosure”.8 7 Thirdly, whilst B Doyle AJA has explained that cl 17 of sch 1 is unique in explicitly contemplating “public disclosure”, and the rationale for that feature, disclosure pursuant to the FOI Act “must be taken to be disclosure to the world at large”.9 8 Fourthly, cll 17(a) and (b) of sch 1 each recognise that a court, by recourse to the doctrine of contempt, or a person or body receiving evidence on oath, by making directions or orders, may protect the integrity of their processes. Similarly, cl 17(c) of sch 1 is concerned with protecting the integrity of the Parliament’s processes, to the extent reflected in “the privilege of Parliament”. That phrase refers to the collection of rights, powers and immunities possessed by Parliament, its members and committees, necessary to enable the proper discharge and effective operation of their constitutional roles and responsibilities. These include, where relevant, standing orders. 9 Fifthly, and in that context, Art 9 and the “wider principle of non- intervention” between Parliament and the courts,10 address a particular kind of use of Parliamentary documents,11 and not merely their disclosure,12 or even their tender where that is solely for the purpose of determining what was said in or to Parliament.13 Likewise, they are not concerned with proper public scrutiny and debate about the statements or conduct of the executive arm of government, for 6 FOI Act, ss 5A and 6. 7 Patrick v The State of South Australia [2025] SASCA 108, [35] (Livesey P, Bleby and Stanley JJA), citing Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469, [67]-[68] (Tate, Kyrou and Niall AJJ). 8 Patrick v The State of South Australia [2025] SASCA 108, [63] (Livesey P, Bleby and Stanley JJA), citing Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469, [68]-[69] (Tate, Kyrou and Niall AJJ). 9 Patrick v The State of South Australia [2025] SASCA 108, [33] (Livesey P, Bleby and Stanley JJA). 10 Prebble v Television New Zealand Ltd [1995] 1 AC 321, 332, 334 (Lord Browne-Wilkonson); Rann v Olsen (2000) 76 SASR 450, [115]-[118], [122] (Doyle CJ); Mees v Roads Corporation (2003) 128 FCR 418, [76]-[78] (Gray J); Cornwall v Rowan (2004) 90 SASR 269, [394]-[397] (Bleby, Besanko and Sulan JJ); The President of the Legislative Council of Western Australia v Corruption and Crime Commission (No 2) [2021] WASC 223, [140]-[149] (Hall J); Attorney-General (Tas) v Casimaty (2024) 98 ALJR 1139, [78]-[83] (Edelman J). 11 Crime and Corruption Commission v Carne (2023) 280 CLR 555, [35]-[39] (Kiefel CJ, Gageler and Jagot JJ), [106]-[116] (Gordon and Edelman JJ). 12 The President of the Legislative Council of Western Australia v Corruption and Crime Commission (No 2) [2021] WASC 223, [150] (Hall J). For these purposes both legal professional privilege and public interest immunity may be distinguished because they are usually concerned with disclosure, cf CPB Contractors Pty Ltd and Hansen Yuncken Pty Ltd v State of SA [2024] SASCA 130, [118], [153] (Livesey P and David JA), [314] (S Doyle JA). 13 Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales (2026) 401 FLR 151, [71] (Leeming JA, Stern JA and Griffiths AJA). -- 6 of 65 -- [2026] SASCA 65 Livesey P 3 that does not entail Parliamentary freedom of speech or its proceedings being impeached or questioned in any court or place out of Parliament. Rather, public scrutiny and debate of that kind is inherent in a vibrant democracy. It remains within the power of the Parliament, including by its standing orders, to restrain the public disclosure of particular documents or classes of documents where that is thought necessary. 10 As B Doyle AJA has explained, the construction of the “composite concept” in Art 9 is concerned with the use of Parliamentary documents by courts, tribunals, commissions or other official inquiries, which may involve determining liability or making findings about character or conduct, so as to afford protection against civil and criminal liability, together with liability to other sanctions such as disciplinary sanctions. Whilst the disclosure of the briefing notes contemplated in this case might possibly discourage candour in the provision of advice, that does seem unlikely. That prospect is, in any event, outweighed by the consideration that mere disclosure does not, without more, undermine the integrity of Parliament’s committee process. 11 Accordingly, disclosure of the briefing notes under the FOI Act does not constitute impeaching or questioning of Parliamentary proceedings or conduct in any relevant sense,14 and so does not infringe the privilege of Parliament. 12 Finally, I agree with B Doyle AJA that both Wright v Lewis,15 and Rowley v O’Chee,16 are distinguishable because they concerned coercive disclosure in defamation proceedings or the application of s 16 of the Parliamentary Privileges Act 1987 (Cth). Whilst it would seem unlikely that they would now be followed for the reasons his Honour has given, it is not necessary in this case to reach any concluded view. Conclusion 13 I agree that appeal ground two should be upheld, that it is not necessary to rule on appeal grounds one and three, and the appeal should be allowed. 14 Cf The President of the Legislative Council of Western Australia v Corruption and Crime Commission (No 2) [2021] WASC 223, [153]-[154] (Hall J). 15 Wright v Lewis (1990) 53 SASR 416. 16 Rowley v O’Chee [2000] 1 Qd R 207 (McPherson JA, with whom Moynihan J agreed), cf 214 (Fitzgerald P). -- 7 of 65 -- [2026] SASCA 65 S Doyle JA 4 14 S DOYLE JA: As identified at the outset of B Doyle AJA’s reasons, the issue in this appeal is whether the Executive briefing notes prepared to assist the Chief Executive of the Department for Environment and Water in answering questions that might be asked by a parliamentary committee are exempt from disclosure by operation of cl 17(c) of schedule 1 to the Freedom of Information Act 1991 (SA). 15 I agree with B Doyle AJA’s reasons for concluding that the Executive briefing notes are not exempt from disclosure. At the risk of repetition, I propose merely to set out what I consider to be the key steps in reasoning towards this conclusion. In so doing, I gratefully adopt B Doyle AJA’s summary of the background to this matter, the parties’ contentions, and the historical context and modern authorities relevant to the operation of parliamentary privilege and, in particular, art 9 of the Bill of Rights 1688 (UK). I also adopt his Honour’s definitions and terminology. 16 Clause 17 of schedule 1 to the FOI Act relevantly provides that a document is an exempt document ‘if it contains matter the public disclosure of which would … (c) infringe the privilege of Parliament.’ The ‘privilege of Parliament’ in this context is a reference to a miscellany of constitutional, statutory and common law principles governing the rights, powers, immunities and other protections applicable to parliaments, members of parliament and parliamentary proceedings.17 Those principles relevantly include art 9 of the Bill of Rights, which in this State is enshrined in s 38 of the Constitution Act 1934 (SA), and provides that:18 The freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament. 17 It was accepted by the parties in this matter that the Executive briefing notes were sufficiently connected with proceedings in Parliament to attract the principles associated with parliamentary privilege, including art 9 of the Bill of Rights. At issue is whether the ‘public disclosure’ of those notes, as hypothesised by the chapeau to cl 17 of schedule 1 to the FOI Act, would infringe the privilege of Parliament in that it would be to ‘impeach or question’ the proceedings of Parliament in any ‘court or place out of Parliament’ within the meaning of art 9 of the Bill of Rights. 18 Whilst art 9 is a provision of high constitutional importance, and not to be narrowly construed, that does not mean that its scope is unlimited,19 or even that it is to be given the broadest meaning its words will permit. In particular, as B Doyle AJA has explained, the meaning of art 9 may be informed by, and to some extent confined by, its historical and constitutional context. Consistently with this contextual approach to the meaning of art 9, I also agree with his Honour that the 17 Campbell, Parliamentary Privilege (2003) at p1; Twomey, The Constitution of New South Wales (2004) at p 489. 18 Rendered in modern terms. 19 Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20 at [88]-[89], [94] (Leeming JA, Stern JA and Griffiths AJA). -- 8 of 65 -- [2026] SASCA 65 S Doyle JA 5 expressions ‘impeach or question’ and ‘court or place out of Parliament’ should be construed as a composite concept, or at least as exerting an interpretive influence on each other. 19 Construed in this contextual way, it becomes apparent that art 9 is concerned not so much with the disclosure of documents or information connected with proceedings in Parliament as with their use in certain ways. I accept that the expression ‘impeach or question’, and the balance of the wording of art 9, are capable of bearing a broad meaning. However, I do not consider that art 9 should be construed as intended to prevent every disclosure or use of documents or information that might tend to hinder or impair proceedings in Parliament in the broad sense of tending to inhibit a person’s preparedness or freedom to participate fully in those proceedings (for example, by tending to discourage candour or completeness for fear of public exposure, discussion and scrutiny of things said in the course of parliamentary proceedings). Public discussion and scrutiny of this type is fundamental to a parliamentary democracy. Rather, understood in its historical and constitutional context, art 9 reflects an intention to protect against a more direct interference with a person’s freedom to participate fully in those proceedings. 20 As B Doyle AJA has outlined, there have been various expressions of this more limited understanding of the purpose and reach of art 9.20 However, at its core, it reflects an intention to protect against interference with a person’s freedom to participate in parliamentary proceedings by protecting that person from having their participation challenged or ‘held against’ them in a way, and in a setting, which may involve some adjudication of the veracity, intention or propriety of their conduct. In this way, it also reflects a concern to ensure that parliaments and courts respect their separate constitutional roles, through a principle of mutual non- intervention. 21 I accept that this represents a narrower view of parliamentary privilege than was adopted by McPherson JA in Rowley v O’Chee,21 and the line of first instance authorities referred to by B Doyle AJA which have followed that decision. 22 However, like B Doyle AJA, I prefer the approach articulated by Hall J in The President of the Legislative Council of Western Australia v Corruption and Crime Commission (No 2)22 which, with respect, persuasively identifies and explains the limits upon the art 9 manifestation of parliamentary privilege and, in 20 Referring to, for example, Sankey v Whitlam (1978) 142 CLR 1 at 35 (Gibbs ACJ); Pepper (Inspector of Taxes) v Hart [1993] AC 593 at 638-639 (Lord Browne-Wilkinson); Prebble v Television New Zealand Ltd [1995] AC 321 at 332-334 (Lord Browne-Wilkinson); Rann v Olsen (2000) 76 SASR 450 at [116]-[122] (Doyle CJ); Mees v Roads Corporation (2003) 128 FCR 418 at [76]-[78] (Gray J); Cornwall v Rowan (2004) 90 SASR 269 at [384]-[397] (Bleby, Besanko and Sulan JJ). See also Erskine May: Parliamentary Practice at [13.11]. 21 Rowley v O’Chee [2000] 1 Qd R 207 at 222, 227 (McPherson JA, Moynihan J agreeing); cf at 214 (Fitzgerald P). 22 The President of the Legislative Council of Western Australia v Corruption and Crime Commission (No 2) [2021] WASC 223 at [5], [140]-[154] (Hall J). -- 9 of 65 -- [2026] SASCA 65 S Doyle JA 6 particular, its focus upon the use to be made of documents or information relating to parliamentary proceedings, rather than their disclosure. This approach is consistent with the views expressed by Professor Twomey, including her reservations about the decision in Rowley v O’Chee.23 It is consistent with the obiter formulations of the purpose and reach of art 9 in the recent High Court authorities referred to by B Doyle AJA,24 and with the reasoning of the New South Wales Court of Appeal in Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales.25 It differs from the approach that is applicable in the context of other forms of privilege, particularly legal professional privilege and public interest immunity. But the focus of those species of privilege upon preventing disclosure, rather than merely use, may be seen as reflecting the concern for confidentiality which is inherent in the rationale for those species of privilege, but which is not inherent in the rationale for parliamentary privilege.26 23 This limitation upon the operation of parliamentary privilege is aptly illustrated by the authorities addressing evidence of parliamentary proceedings in defamation cases. Just as it may be accepted that adducing evidence of a statement made in parliamentary proceedings would not, of itself, involve any breach of parliamentary privilege, so too should it be accepted that disclosure of evidence of such a statement would not, of itself, involve any breach of parliamentary privilege. That would be so even in circumstances where the fact of what was said is relied upon to provide the foundation for a defence of qualified privilege. It is only when it comes to the point of a party seeking to deploy, or use, the statement in a manner intended to challenge, or subject to scrutiny, the veracity, intention or propriety of the conduct of the person making the statement that parliamentary privilege intrudes.27 24 All of that said, like both Hall J and B Doyle AJA, I agree that is not necessary to reach any concluded view as to whether the decision in Rowley v O’Chee is plainly wrong, or whether there are compelling reasons to depart from it. As their Honours have explained, that decision involved consideration of a different manifestation of parliamentary privilege (namely, s 16 of the Parliamentary Privileges Act 1987 (Cth)), and the compulsory production of documents in curial proceedings. Thus, it does not speak directly to the issue in this appeal. 25 Returning to the issue in this appeal, and adopting the approach outlined above, the public disclosure of the Executive briefing notes hypothesised in cl 17 of schedule 1 of the FOI Act would not involve impeaching or questioning parliamentary proceedings at all, let alone in a court or other place of the type 23 Twomey, The Constitution of New South Wales (2004) at pp 494, 502-503. 24 Crime and Corruption Commission (Qld) v Carne (2023) 280 CLR 555 at [106] (Gordon and Edelman JJ); Attorney-General (Tasmania) v Casimaty (2024) ALJR 1139 at [78]-[83] (Edelman J). 25 Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20 at [6], [10], [71], [97], [100], [103]-[105] (Leeming JA, Stern JA and Griffiths AJA). 26 The President of the Legislative Council of Western Australia v Corruption and Crime Commission (No 2) [2021] WASC 223 at [140]-[141] (Hall J). 27 See the authorities cited in footnote 20 above. -- 10 of 65 -- [2026] SASCA 65 S Doyle JA 7 contemplated by art 9. The contemplated disclosure would not involve, or have any necessary connection with, any attempt to use the Executive briefing notes in a manner involving a challenge to, or adjudication of, the veracity, intention or propriety of a person’s conduct in connection with parliamentary proceedings. Nor would any disclosure or use be in any court or analogous place with the power to adjudicate upon that conduct. 26 It follows that the Executive briefing notes are not exempt from production under cl 17(c) of schedule 1 to the FOI Act. 27 It may be accepted that the above approach does not leave any scope for the manifestation of parliamentary privilege in art 9 to be engaged by cl 17(c). However, for the reasons explained by B Doyle AJA, this does not leave that clause without work to do. In a manner harmonious with the cll 17(a) and (b) exemptions from disclosure of documents the public disclosure of which would involve a breach of an order or direction of a court or other analogous body, it leaves cl 17(c) with work to do in exempting from disclosure any documents the public disclosure of which would involve a breach of some direction or standing order of Parliament. 28 For these reasons, and the more detailed reasons given by B Doyle AJA, I agree that the appeal should be allowed. -- 11 of 65 -- [2026] SASCA 65 B Doyle AJA 8 29 B DOYLE AJA: The question in this appeal is whether briefing notes prepared to assist the Chief Executive of the Department for Environment and Water (‘Department’) in answering questions that might be asked by a parliamentary committee are ‘exempt’ from disclosure by operation of cl 17(c) of Schedule 1 to the Freedom of Information Act 1991 (SA) (‘FOI Act’). For the reasons that follow, I would conclude that they are not exempt. Background 30 The appellant made a request to the Department (as the relevant ‘agency’) for access under the FOI Act to: a. Any briefs prepared (or being prepared) for the CEO in relation to potential options/responses to a likely failure (see the Murray Darling Basin Commissioners November 2022 report) to meet the ‘supply’, ‘efficiency’ or ‘constraints’ measures of the Murray Darling Basin Plan by the statutory time limit (2024). b. Any ministerial briefs prepared (or being prepared) for Minister Close in relation to potential options/responses to a likely failure to meet the ‘supply’, ‘efficiency’ or ‘constraints’ measures of the Murray Darling Basin Plan by the statutory time limit (2024). 31 The Chief Executive of the Department had been requested to attend as a witness before the Budget and Finance Committee of the Parliament of South Australia. The Chief Executive’s departmental officers prepared briefing notes to assist him in answering questions from the Committee about the operations and financial performance of the Department. Two such documents were provided to the Chief Executive on Friday 27 January 2023 for his scheduled attendance on Monday 30 January 2023 before the Committee.28 The documents were not tabled or referred to when the Chief Executive gave evidence. 32 These two documents, which fall within the terms of the FOI request, are each styled as a ‘Parliamentary briefing note’. The appellant contends that a more appropriate description would be ‘Executive briefing notes’. Whilst nothing turns on the label given to them, that description will be used. 33 The appellant’s request for access was denied by the relevant agency on the basis that the Executive briefing notes were exempt documents by reason of cl 17(c) of Schedule 1 to the FOI Act. Clause 17 relevantly provides as follows: 17—Document subject to contempt etc A document is an exempt document if it contains matter the public disclosure of which would, but for any immunity of the Crown— … 28 The documents were numbered 5 and 6 by the departmental officers who subsequently collated them for the appellant’s freedom of information application. -- 12 of 65 -- [2026] SASCA 65 B Doyle AJA 9 (c) infringe the privilege of Parliament. 34 Following a successful review of the agency’s decision to the South Australian Ombudsman, the agency brought proceedings in the South Australian Civil and Administrative Tribunal (‘Tribunal’) requesting that a determination that the documents are exempt be substituted in lieu of the Ombudsman’s determination.29 It was common ground that the review raised questions of law. 35 The Tribunal published two sets of reasons and ultimately determined that the Executive briefing notes were exempt pursuant to cl 17(c) of Schedule 1 to the FOI Act.30 36 The appellant sought leave to appeal to this Court. 31 The issues raised are of general importance and leave to appeal was granted at the hearing. Overview of the contentions 37 The appellant’s three appeal grounds advance the following propositions: (1) a document will only be exempt by reason of cl 17(c) if it contains matter any public disclosure of which would infringe the privilege of Parliament. Since the agency could voluntarily have made public disclosure of the matter contained in the Executive briefing notes without infringing any privilege of the Parliament, the documents are not exempt; (2) neither the giving of access nor public disclosure pursuant to the FOI Act of documents prepared for the purpose of parliamentary proceedings results in ‘freedom of speech and debates or proceedings in Parliament’ being ‘impeached or questioned in any court or place out of Parliament’, within the meaning of Article 9 of the Bill of Rights 168832 (‘Bill of Rights’). Even if public disclosure may tend to discourage candour or completeness in the preparation of such documents, that effect does not involve ‘impeaching’ free speech and debates or proceedings in Parliament in a ‘place out of Parliament’ in the requisite sense; and (3) alternatively, and in any event, a conclusion that public disclosure of the documents in question would have that effect cannot be reached merely on the basis that they form part of a class of documents prepared to assist a person appearing before a parliamentary committee. A finding needed to be made with respect to the documents in question. 29 FOI Act, s 40 and South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’), s 34. 30 Department for Environment and Water v Patrick [2024] SACAT 73 (‘First Reasons’), Department for Environment and Water v Patrick [2025] SACAT 63 (‘Second Reasons’). 31 SACAT Act, s 71(2). 32 1 Wm & M sess 2 c 2. -- 13 of 65 -- [2026] SASCA 65 B Doyle AJA 10 38 Whilst success on the first ground would render resolution of the second and third grounds unnecessary, the second ground raises issues about parliamentary privilege that are fundamental and inform the arguments relevant to the other grounds. It is therefore useful to address some aspects of parliamentary privilege in order to frame the parties’ competing submissions with more precision. Parliamentary privilege and the issue arising 39 According to Erskine May: Parliamentary Practice:33 Parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by statute. 40 As that description indicates, the High Court of Parliament in England was historically both a legislature and a court of law. It developed its distinctly legislative function only in the seventeenth century.34 This explains the inclusion of the words ‘out of Parliament’ in Art 9, and shows that those words qualified ‘court’ as well as ‘place’. 41 In an Australian context, it may be said that parliamentary privilege is a convenient label for a bundle of rights, powers and immunities possessed by individual houses of a parliament together with protections accorded by law to members of parliament and other participants in parliamentary proceedings.35 42 Speaking generally, a parliament possesses powers necessary for the proper performance of its functions, which now are fundamentally to legislate and to scrutinise the executive. As to the latter, in the words of Isaacs J:36 When a man becomes a member of Parliament, he undertakes high public duties. … One of the duties is that of watching on behalf of the general community the conduct of the Executive, of criticizing it, and, if necessary, of calling it to account in the constitutional way by censure from his place in Parliament—censure which, if sufficiently supported, means removal from office. That is the whole essence of responsible government, which 33 United Kingdom Parliament, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (2019, 25th ed) (‘Erskine May: Parliamentary Practice’) [12.1]. 34 Goldsworthy, Sovereignty of Parliament (1999), pp 132-135. It has been argued that parliamentary privilege at Westminster derived from the parliament’s curial status: Spencer, ‘Article 9 of the Bill of Rights: An Historical, Philosophical and Practical Primer’ (2023) 38 Australian Parliamentary Review 118. 35 Campbell, Parliamentary Privilege (2003) p 1, Twomey, The Constitution of New South Wales (2004) p 489. 36 Horne v Barber (1920) 27 CLR 494 at 500 (referred to by Isaacs and Rich JJ in R v Boston (1923) 33 CLR 386 at 401-402). See also R (Miller) v Prime Minister [2020] AC 373 at [46] (Baroness Hale and Lord Reed), to the effect that the accountability of Ministers to Parliament through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make, is central to Westminster democracy, and is a means by which citizens are protected from the arbitrary exercise of executive power. -- 14 of 65 -- [2026] SASCA 65 B Doyle AJA 11 is the keystone of our political system, and is the main constitutional safeguard the community possesses. 43 The powers possessed for the performance of these functions include powers to constitute committees to inquire, and to compel evidence from witnesses or the production of documents. As well, they include powers to control the proceedings of the parliament and to discipline members and deal with contempt. One aspect of parliamentary privilege is the exclusive right of a parliament to manage the parliament’s internal affairs, a concept known as ‘exclusive cognisance’.37 44 The immunities include an immunity of members from arrest and compulsion to attend court in respect of certain matters and, relevantly to this appeal, freedom of speech in parliamentary proceedings. In the context of parliaments in the Westminster tradition, that freedom is usually traced to Art 9 of the Bill of Rights which, rendered in modern spelling, provides that: The freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament. 45 At the establishment of the colony of South Australia, and notwithstanding that the colony was not subject to the Australian Courts Act 1828 (Imp),38 the Bill of Rights was understood to form part of inherited imperial law, although in terms it was directed towards the English Parliament and, until a legislature was established in the colony, it applied only proleptically.39 46 As concerns Art 9,40 its direct application to the Houses of Parliament of the State of South Australia was placed on an express and secure footing by s 38 of the Constitution Act 1934 (SA), which provides:41 38—Privileges, powers etc of Council and Assembly The privileges, immunities, and powers of the Legislative Council and House of Assembly respectively, and of the committees and members thereof respectively, shall be the same as but no greater than those which on the twenty-fourth day of October, 1856, were held, enjoyed, and exercised by the House of Commons and by the committees and members 37 R v Chaytor [2011] 1 AC 684 at [63] (Lord Phillips). 38 9 Geo IV c 83. 39 Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 467 (McHugh and Gummow JJ), Egan v Willis (1998) 195 CLR 424 at [23]-[24] (Gaudron, Gummow and Hayne JJ), at [129] (Kirby J). See also s 48 of the Acts Interpretation Act 1915 (SA). See also Attorney-General (Tasmania) v Casimaty (2024) 98 ALJR 1139; [2024] HCA 31 at [70] (Edelman J). 40 Other aspects of parliamentary privilege are the subject of more restrictive provision in this State: see Constitution Act 1934 (SA), s 39. 41 See also Constitution Act 1934 (SA), s 5. -- 15 of 65 -- [2026] SASCA 65 B Doyle AJA 12 thereof, whether such privileges, immunities, or powers were so held, possessed, or enjoyed by custom, statute, or otherwise. 47 Accordingly, the law as expressed in Art 9 applies as though it were addressing the Parliament and the courts of this State.42 48 It was common ground between the parties that the Executive briefing notes were sufficiently connected with proceedings in Parliament so as to render them capable of enjoying such status or protection as the principles associated with parliamentary privilege, including as enshrined in Art 9, may confer. So, for instance, the maker of the note would not be exposed to a liability in defamation for any statements contained in the notes. 49 However, recognising that the freedom or immunity contemplated by Art 9 is only one aspect of ‘parliamentary privilege’, the fundamental question arising in this appeal in respect of the Executive briefing notes is whether and to what extent the ‘public disclosure’ posited by cl 17 would or might ‘impeach’ the freedom of speech or debate in proceedings of the Parliament ‘in any court or place out of Parliament’ and, in particular, in any ‘place out of Parliament’. The parties’ contentions 50 The appellant contends that the public disclosure postulated by cl 17 would not result in anything done in (or incidentally to) a parliamentary proceeding being ‘impeached or questioned in any court or place out of Parliament’ as that compound expression should be construed. The appellant contends that, in context, ‘place’ takes its genus from ‘court’ (so as to include, for instance, statutory tribunals), and ‘impeach’ means to accuse or expose to some liability or at least adverse finding by a relevant body. The appellant contends that the broader meaning of impeach (extending to ‘hinder’ or ‘impair’, including by an indirect chilling effect) adopted by McPherson JA in Rowley v O’Chee43 should not be followed. The appellant embraces doubts expressed in a Western Australian Supreme Court decision about aspects of Rowley v O’Chee.44 51 By contrast, the respondent submits that Rowley v O’Chee and a number of subsequent decisions consistent with it show that, in addition to restricting the use of, or the challenge that may be made in courts and tribunals to, statements in or in connection with parliamentary proceedings, Art 9 confers an immunity against involuntary disclosure of such materials. 52 The respondent submits that when an accredited FOI officer or the Ombudsman makes a determination whether any exemption under the FOI Act applies, that amounts to an authoritative determination and that the consequence if access is granted amounts to impeaching in a ‘place out of Parliament’. As will be 42 Ellis v The King [2023] SASCA 28 at [29] (Livesey P, Bleby JA and Nicholson AJA). 43 [2000] 1 Qd R 207 at 222-227 (McPherson JA, Moynihan J agreeing). 44 The President of the Legislative Council of Western Australia v Corruption and Crime Commission (No 2) [2021] WASC 223 at [149]-[150] (Hall J). -- 16 of 65 -- [2026] SASCA 65 B Doyle AJA 13 explained, the respondent’s preferred approach to ‘place out of Parliament’ differs subtly from the approach adopted in the Tribunal. On the Tribunal’s approach, the FOI Act is to be understood as picking up, applying and adapting the Art 9 principles so that they operate in a particular statutory context, whereas on the respondent’s approach, compelled disclosure of documents sufficiently connected with parliamentary proceedings under the FOI Act infringes the privileges or immunities recognised by Art 9 without any necessary modification or extension. 53 In supporting a narrower view of the meaning of ‘impeach’ than that adopted by McPherson JA in Rowley v O’Chee, the appellant emphasised the limited scope given to the privilege by the Full Court in Wright v Lewis.45 It was submitted that the reasoning of King CJ in that case, and the decision that interrogatories could be administered about what had been said in Parliament, was inconsistent with the proposition in Rowley v O’Chee that the privilege is a bar to compulsion. The appellant submitted that Wright v Lewis was not referred to in Rowley v O’Chee, rendering that decision per incuriam. 54 The respondent, relying in part upon the Privy Council’s decision in Prebble v Television New Zealand46 (‘Prebble’) and observations made by some members of a five-member Court in Rann v Olsen,47 submitted that Wright v Lewis is wrong and should not be followed. Because the status of Wright v Lewis was given some prominence in the parties’ oral submissions, they were both granted permission to file supplementary written submissions on that question. 55 It will be necessary to return to aspects of the competing submissions in more detail, but as this outline of the rival contentions shows, the parties differed as to the scope and effect of Art 9, the status and correctness of intermediate appellate authority about that provision and any wider dimensions of parliamentary privilege, the interpretive approach to be applied to and, ultimately, the proper construction of, cl 17(c) of Schedule 1 to the FOI Act. 56 These reasons address the historical context in which Art 9 was enacted, before turning to how the modern authorities have grappled with its status, reach and application to Australian parliaments with a view to then resolving the particular questions of construction of the FOI Act arising in this appeal. Art 9 of the Bill of Rights and its historical context 57 Professor Campbell has said that:48 The immediate object of Article 9 was to give statutory force to privileges which had, for some time, been claimed by the houses of parliament, and particularly by the House of Commons. These privileges were freedom to debate subjects of their choosing and freedom 45 (1990) 53 SASR 416. 46 [1995] 1 AC 321. 47 (2000) 76 SASR 450. 48 Campbell, Parliamentary Privilege (2003), p 10. -- 17 of 65 -- [2026] SASCA 65 B Doyle AJA 14 of their members to say in parliament what they wished to say without risk of their incurring any legal liability, notably for seditious libel. 58 The appellant submits that a consideration of the extent of the freedom asserted by Parliament in the period prior to 1689 shows that the mischief to which Art 9 was directed was the levelling of charges or accusations in courts (rather than in the Parliament itself) about the statements or conduct of persons in Parliament. 59 Shortly after the accession of William III and Mary II to the throne, the Convention Parliament enacted the Bill of Rights (‘An Act declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown’).49 60 Rendered in modern spelling, its preamble recited that: Whereas the late King James the Second by the assistance of diverse evil councillors, judges and ministers … did endeavour to subvert and extirpate … the laws and liberties of this kingdom: … 61 The document then listed a number of assertions or declarations, the eighth of which was that: by prosecutions in the Court of King’s Bench for matters and causes cognizable only in Parliament and by diverse and other arbitrary and illegal courses … (the ‘eighth declaration’). 62 However, as is explained by Holdsworth,50 controversy about the proper role of the courts in respect of statements or conduct within the houses of Parliament substantially pre-dated the reign of James II, to whom reference was made in the preamble. 63 During James I’s first Parliament the House of Commons stated that the privileges of Parliament were as much their ‘undoubted right’ as the right of property which every subject had in his lands or goods; that the House of Commons was a court of record and the highest court in the land; and that the privileges, being necessary for the conduct of the business of the House, could not be ‘withheld from us, denied or impaired, but with apparent wrong to the whole state of the realm’.51 64 James I did not accept that the Parliament enjoyed privileges by way of ancient or undoubted right. On the contrary, he contended that they derived ‘from 49 The Bill is sometimes given the date 1688. It was passed into law in December 1689, but with retrospective effect from the first day of the session of Parliament, which was taken to be in February 1689. Until the adoption of the Gregorian calendar (in lieu of the Julian calendar) by the Calendar (New Style) Act 1750 (24 Geo II c 23), the legal commencement of the legal year was 25 March rather than 1 January. See, eg, Cadia Holdings Pty Ltd v State of New South Wales (2010) 242 CLR 195 at fn 212 (Gummow, Hayne, Heydon and Crennan JJ). 50 Holdsworth, A History of English Law (1937, 2nd ed) Vol 6, pp 92-93. 51 Apology of the House of Commons (1604), Prothero, Select Statutes and Documents of Elizabeth and James I (‘Select Documents’), pp 287-289. -- 18 of 65 -- [2026] SASCA 65 B Doyle AJA 15 the grace and permission of himself and his ancestors’, and he warned that if they persisted in trenching upon his prerogative, he would be forced to trench upon their privileges.52 65 In 1621, the House of Commons responded and, it may be noted, used the language of impeachment in its Protestation:53 The Commons now assembled in parliament … do make this protestation following: That the liberties, franchises, privileges and jurisdictions of parliament are the ancient and undoubted birthright and inheritance of the subjects of England; and that the arduous and urgent affairs concerning the king, state and defence of the realm, and of the church of England, and the maintenance and making of laws, and redress of mischiefs and grievances which daily happen within this realm, are proper subjects and matter of counsel and debate in parliament: and that in the handling and proceeding of those businesses every member of the House of Parliament hath and of right ought to have freedom of speech, to propound, treat, reason and bring to conclusion the same: and that the Commons in parliament have like liberty and freedom to treat of these matters in such order as in their judgments shall seem fittest: and that every member of the said House hath like freedom from all impeachment, imprisonment and molestation (other than by censure of the House itself) for or concerning any speaking, reasoning or declaring of any matter or matters touching the parliament, or parliament business; and that, if any of the said members be complained of and questioned for anything done or said in parliament, the same is to be shewed to the king by the advice and assent of all the Commons assembled in parliament, before the king give credence to any private information. 66 ‘Impeachment’ in this context appears to have entailed the visiting of adverse consequences upon a member. The Protestation also addressed ‘questioning’. The concern of the Commons in that respect was that the monarch not give credence to any private information in respect of things said or done in Parliament other than by the advice and assent of the Commons itself. Any complaint or questioning about things said and done would occur by or with the assent of the Commons, and not otherwise. 67 The extent of the right of freedom of speech came to a head in the 1629 proceedings taken against Eliot, Holles and Valentine for seditious speeches, contempt against the King in resisting the adjournment of the House, and conspiracy to keep the Speaker by force in the chair.54 Those men contested jurisdiction, but the Court of King’s Bench overruled the objection. They were imprisoned in the Tower,55 although 12 years later Holles and Valentine were released and compensated. This was too late for Sir John Eliot, who died in 1632. In 1668, the House of Lords reversed the judgment.56 52 Holdsworth, A History of English Law (1937, 2nd ed) Vol 6, p 93. 53 House of Commons Protestation (1621), Prothero, Select Documents, pp 313-314. 54 The events are colourfully described in Skottowe, A Short History of Parliament (1886), pp 74-75. 55 Holdsworth, A History of English Law (1937, 2nd ed) Vol 6, pp 97-98. 56 Lord Denning, ‘Annex on the Strauss Case’, reproduced in Lock, ‘Parliamentary Privilege and the Courts: the Avoidance of Conflict’ [1985] Public Law 64 at 88. -- 19 of 65 -- [2026] SASCA 65 B Doyle AJA 16 68 Following the ‘Personal Rule’ (or the ‘Eleven Years’ Tyranny’), during which Charles I ruled without a Parliament, and the three week term of the ‘Short Parliament’, in 1641, the ‘Long Parliament’ presented a list of grievances to the monarch known as the ‘Grand Remonstrance’. These included:57 … the privilege of Parliament broken, by imprisoning divers Members of the House, detaining them close prisoners for many months together, without the liberty of using books, pen, ink or paper; denying them all the comforts of life, all means of preservation of health, not permitting their wives to come unto them even in the time of their sickness. … … and to keep them still in this oppressed condition, not admitting them to be bailed according to law, yet vexing them with informations in inferior courts, sentencing and fining some of them for matters done in Parliament, and extorting the payments of those fines from them, enforcing others to put in security of good behaviour before they could be released. The imprisonment of the rest, which refused to be bound, still continued; which might have been perpetual, if necessity had not, the last year, brought another Parliament to relieve them; of whom, one died, by the cruelty and harshness of his imprisonment, which would admit of no relaxation, notwithstanding the imminent danger of his life, did sufficiently appear by the declaration of his physician: And his release, or at least, his refreshment, was sought by many humble petitions. And his blood still cries either for vengeance, or repentance of those Ministers of State, who have at once obstructed the course, both of his Majesty’s justice and mercy. 69 The blood in question was that of Eliot. In dismissing Eliot’s objection to jurisdiction, the Court of King’s Bench had held that Strode’s Act was a private Act applying only to Strode and not other members of parliament. 70 Richard Strode was a member of Parliament who in 1512 introduced a bill to alleviate the harsh working conditions of tin miners on Dartmoor. A local ‘Stannary Court’ held it had jurisdiction to enforce a law against the obstruction of tin mining and Strode was prosecuted and imprisoned before he could travel to Westminster to present his bill. In response, Strode’s Act, later named the Privilege of Parliament Act 1512,58 was passed. It provided that:59 ...AND over that be it enacted by the said authority that suits, accusations, condemnations, executions, fines, amerciaments, punishments, corrections, grievances, charges and impositions put or had or hereafter to be put or had unto or upon the said Richard [Strode] and to every other of the person or persons afore specified, that now be of this present parliament or that of any parliament hereafter shall be, for any bill speaking, reasoning, or declaring of any matter or matters concerning the parliament to be convened and treated of, be utterly void and of none effect. And over that be it enacted by the said authority that if the said Richard Strode or any of all the said other person or persons hereafter be vexed, troubled or otherwise charged for any causes as is afore said, that then he or they and every of them so vexed or troubled of and for the same to have action upon the case against every 57 House of Commons, A Remonstrance of the State of the Kingdom (1641), p 76 (rendered in modern spelling). 58 4 Hen VIII c 8. 59 This excerpt is rendered in modern spelling. -- 20 of 65 -- [2026] SASCA 65 B Doyle AJA 17 such person or persons so vexing or troubling any contrary to this ordinance and provision, in the which action the party grieved shall recover treble damages and costs, and that no protection, essoin, nor wager of law in the said action in any wise be admitted nor received. 71 Charles I’s rejection of the Grand Remonstrance contributed to tensions that led to the English Civil War. In 1667, a few years after the restoration of the former monarch’s son, Charles II, the Commons and the House of Lords each carried resolutions declaring Strode’s Act to be a law of general application, extending to indemnify ‘all and every the Members’ of both Houses of Parliament, ‘for and touching all Bills, speaking, reasoning, or declaring of any Matter or Matters in and concerning the Parliament’. 72 According to Holdsworth, after the Restoration, the privileges of both Houses of Parliament were for the most part unquestioned.60 However, subsequent cases in the 1680s evidently informed what became Art 9. 73 In 1682, the Serjeant-at-Arms of the House of Commons, Topham, had taken several persons into custody who had been committed for breach of privilege.61 They sued Topham in the King’s Bench in actions for damages. Topham pleaded to the jurisdiction of the court. This was overruled by Pemberton CJ and Jones J, and a judgment in damages was awarded.62 74 In 1684, and thus shortly before Charles II was succeeded by his younger brother, James II, an information was laid against the Speaker of the House of Commons, Mr William Williams. He had authorised the publication of a 1680 pamphlet63 that had been printed among the papers of the House of Commons and contained libels on the Duke of York. In 1686, Williams was fined the sum of £10,000.64 His plea to the jurisdiction was overruled. By this time, the Duke (the younger brother of Charles II) had become James II. 75 Holdsworth wrote that:65 In all these cases the defendants had pursued the same course as that pursued by Sir John Eliot—they had pleaded to the jurisdiction. Pemberton CJ was examined in the House of Commons as to the reason for his decision in one of these actions against Topham. He explained that in such a case the defendant should have pleaded in bar and proved the facts; and that then, if the facts showed that the acts complained of were covered by privilege, he might have had judgment in his favour. By pleading to the jurisdiction he tied the hands of the court. … 60 Holdsworth, A History of English Law (1937, 2nd ed) Vol 6, p 256. 61 Lord Denning, ‘Annex on the Strauss Case’, reproduced in Lock, ‘Parliamentary Privilege and the Courts: the Avoidance of Conflict’ [1985] Public Law 64 at 88. 62 Jay v Topham (1689) 12 ST 822. 63 Dangerfield’s ‘Particular Narrative of the Late Popish Design’. 64 The fine was later reduced to £8,000 in cash. 65 Holdsworth, A History of English Law (1937, 2nd ed) Vol 6, pp 269-270. -- 21 of 65 -- [2026] SASCA 65 B Doyle AJA 18 No doubt these cases were inspired by political motives. The crown wished to make things unpleasant for the House of Commons and its officials. On the other hand, the House of Commons defeated its own ends by the unfounded notion that its assertion that an act was privileged ousted the jurisdiction of the courts. It was not likely that it would abate its claims after the Revolution. But there was now a much better chance that the questions at issue would be impartially considered by the courts; and that some certain rules would be at last evolved, which would not unduly restrict the privileges of the House, and yet would maintain the supremacy of the law, and give some protection to the subject. 76 The Parliamentary debates in respect of the Bill of Rights show that the prosecution of Williams informed Art 9. Sir George Treby said:66 This Article was put in for the sake of one, once in your place, Sir William Williams,67 who was punished out of Parliament for what he had done in Parliament … 77 In the course of debate, and noting that the prosecution had been initiated during the reign of Charles II, a reference in an earlier draft recital to ‘informations’ was removed. Lord Denning has remarked extra-judicially on the significance of the cases of Topham and Williams in these terms:68 It was these last two cases—and the last one in particular—which led to the ninth article of the Bill of Rights. The Convention Parliament (which passed the Bill of Rights) was clearly of opinion that the courts in each case ought to have upheld the plea to the jurisdiction. So far as Topham’s case was concerned, they committed Pemberton CJ and Jones J to prison ‘for their breach of the privilege of the House by giving judgment to over-rule the Plea to the Jurisdiction of the Court of King’s Bench’. So far as Williams’ case was concerned, it was the immediate reason for the eighth Declaration of the Bill of Rights. As originally drafted, it accused James II of subverting the laws of England ‘by causing informations to be brought and prosecuted’, etc. It was amended so as to omit ‘informations’ and to read ‘by prosecution in the Court of King’s Bench’. The reason for the amendment was because the information was filed in Charles II’s time (to which the House took no objection) but the prosecution was carried on and judgment obtained in James II’s time (to which the House did take objection). And corresponding to the eighth Declaration, the Convention Parliament in the ninth article of the Bill of Rights declared ‘that the freedom of Speech, and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament’. When that article is read in the light of the cases which gave rise to it, it becomes plain that it did not prevent a plaintiff from commencing an action or laying an information. It only prevented him from prosecuting it in the court. The judges in those cases ought to have upheld the plea to the jurisdiction. The article is a direction to the courts of law not to allow speeches or debates or proceedings in Parliament to be impeached or questioned. 78 On this view Art 9 is concerned not only to impose immunity but to ensure deference or non-interference by ensuring, inter alia, that any questioning of the 66 Debates in Parliament in 1688, 9 Grey’s Debates, p 81. 67 By this time, Williams had switched his allegiance to James II and become Solicitor-General, being granted a knighthood and then a baronetcy. See Lock, ‘Parliamentary Privilege and the Courts: the Avoidance of Conflict’ [1985] Public Law 64 at 74 (fn 45). 68 Denning, ‘Annex on the Strauss Case’, reproduced in Lock, ‘Parliamentary Privilege and the Courts: the Avoidance of Conflict’ [1985] Public Law 64 at 88-89. -- 22 of 65 -- [2026] SASCA 65 B Doyle AJA 19 things said and done in the course of parliamentary proceedings occurs in that forum. 79 The ‘Glorious Revolution’ saw James II deposed and succeeded by his daughter, Mary II and her Dutch husband, William III of Orange. A Convention Parliament drew up the Declaration of Rights and offered the throne to William and Mary. The Parliament then turned its Declaration into the Bill of Rights.69 80 The appellant submits that the controversies between parliament and the courts (whose judges lacked security of tenure prior to the Act of Settlement 1701 and were viewed by the Commons as agents of the monarch)70 suggest that the concern of Art 9 was the making of accusations, or the bringing of charges, in respect of parliamentary proceedings. 81 The appellant points in particular to the language of the eighth declaration and its reference to matters cognisable only in Parliament, contending that what the Bill of Rights was seeking to exclude from the jurisdiction of the courts was a jurisdiction it reserved to itself, viz, the making of accusations or charges about statements or conduct within the parliament.71 The appellant thus contends that to the extent that the modern authorities, following Rowley v O’Chee, have embraced a wider concept of impeachment, this was in error. 82 The respondent, however, emphasises that whatever be the scope of the eighth declaration, the language of Art 9 is designedly wide. The respondent contends that with the exception of two doubtful modern authorities,72 it has been recognised that the scope and application of Art 9 is wider than the subject matter of the seventeenth century cases to which reference has been made. 83 In considering that submission it may be noted that it was recently observed that Art 9, at least as it applies in New South Wales, should not be read as an ordinary statute but as having the status of a basic constitutional principle.73 The Bill of Rights was, after all, one of the ‘foundation stones’ of constitutional monarchy.74 84 That having been said, in the South Australian context, s 38 of the Constitution Act might be thought to support a historical approach, given that the 69 Holdsworth, A History of English Law (1937, 2nd ed) Vol 6, p 194. 70 Lock, ‘Parliamentary Privilege and the Courts: the Avoidance of Conflict’ [1985] Public Law 64 at 74. 71 The appellant referred to the subsequent impeachment of Lord Somers, as recounted in Sachse, Lord Somers: A political portrait (1912), Ch IX, as an illustration of the contemporary understanding of the concept of impeachment. Impeachment of an individual by the House of Commons forms part of the original jurisdiction of the House of Lords and dates back to the Good Parliament of 1376. Impeachment was common during the seventeenth century but has not been resorted to since the impeachment of Henry Dundas, First Viscount Melville, in 1806. 72 R v Murphy (1986) 5 NSWLR 18 and Wright v Lewis (1990) 53 SASR 416. 73 cf. Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20 at [88]-[89], [96] (Leeming JA, Stern JA and Griffith AJA). 74 The President of the Legislative Council of Western Australia v Corruption and Crime Commission (No 2) [2021] WASC 223 at [97] (Hall J). -- 23 of 65 -- [2026] SASCA 65 B Doyle AJA 20 provision appears to limit the privileges, immunities and powers of the Houses of Parliament and its committees so that they are no greater than those held, enjoyed or exercised by the House of Commons in 1856. 85 The differences between the approaches may be more apparent than real. Adopting the first approach – treating Art 9 as having a quasi-constitutional status which requires that it adapt to prevailing constitutional circumstances – does not mean that it lacks limits tethered to its underlying rationale rooted in the history just discussed. Adopting the latter approach, the mere fact that an application of Art 9 had not been articulated in 1856 does not preclude the conclusion that its meaning was at that time broad enough to accommodate that application. The modern authorities 86 The modern authorities have consistently held that the question whether a relevant privilege exists is a matter that is justiciable in the courts, but that ‘given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise’.75 87 However, as Erskine May: Parliamentary Practice suggests, a recurring question has been whether ‘impeached’ and ‘questioned’ are to be understood as inhibiting only the exposure of Members to legal sanctions for what was done or said in the House, or whether the protection goes further.76 88 The scope and meaning of the words ‘impeached or questioned’ have been the subject of judicial consideration in recent times in Australia, the United Kingdom and elsewhere, with different views being expressed. 89 In Sankey v Whitlam,77 it was argued that a claim of public interest immunity78 was not undermined by reason that members of Parliament had tabled the relevant documents in Parliament and made them public. Because an important reason for the privilege in Art 9 is that a member of Parliament should be able to speak in Parliament with impunity and without any fear of the consequences, if evidence could be given that documents had been tabled in Parliament with the effect that they were thereby rendered admissible, in some cases against Ministers who tendered them, this might lead Ministers to be inhibited in the performance of their duties. They might be led, by fear of the possible consequences, to refrain from tabling documents that ought to be tabled. 90 Gibbs ACJ considered that:79 75 R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162 (Dixon CJ). 76 Erskine May: Parliamentary Practice, [13.11]. 77 (1978) 142 CLR 1. 78 At that time, commonly referred to as ‘Crown privilege’. 79 (1978) 142 CLR 1 at 35. -- 24 of 65 -- [2026] SASCA 65 B Doyle AJA 21 This argument carries the doctrine of parliamentary privilege beyond its proper limits. To prove that a document had been tabled would not be to use against the Minister concerned evidence that he had tabled it. 91 In R v Murphy,80 the question was whether it was permissible for a Crown witness to be cross-examined by reference to evidence he had given to a Senate select committee, with a view to establishing a prior inconsistent statement. Hunt J noted a submission that the dictionary meanings of ‘impeach’ extended to ‘challenge, call in question, attack; discredit, disparage’, and that ‘question’ included ‘interrogate’, ‘doubt’, ‘call in question, dispute, oppose’ and ‘examine judicially … call to account, challenge’. He said:81 Even to ask a witness in the curial proceedings whether or not he had made a particular statement to a parliamentary committee, it is submitted by counsel appearing as amici curiae … would be to impeach or to question that statement in breach of art 9. In my view, that submission carries the doctrine of parliamentary privilege beyond its proper limits, and it must be rejected. 92 In Hunt J’s view, the cross-examination of a witness by reference to an inconsistency between their trial evidence and a statement made by them to a parliamentary committee would not infringe privilege, as the purpose would not be to demonstrate that the person had misled the committee but rather to discredit their trial evidence. The mere fact that their credit might be exposed to attack, even if resulting in the infliction of a harm that would not otherwise have occurred if their parliamentary statement had not been made, was insufficient to engage the principle. In his Honour’s view:82 What is meant by the declaration that “freedom of speech … in parliament ought not to be impeached or questioned in any court or place out of parliament” is, in my view, that no court proceedings (or proceedings of a similar nature) having legal consequences against a member of parliament (or a witness before a parliamentary committee) are permitted which by those legal consequences have the effect of preventing that member (or committee witness) exercising his freedom of speech in parliament (or before a committee) or of punishing him for having done so. In other words, the phrase “impeached or questioned in any court or place out of parliament” in art 9 should be interpreted in the sense that the exercise of the freedom of speech given to members of parliament (and committee witnesses) may not be challenged by way of court (or similar) process having legal consequences for such persons because they had exercised that freedom. 93 Hunt J went on to support that interpretation by reference to a consideration of the controversies of the seventeenth century which formed the backdrop to Art 9, adverted to earlier in these reasons.83 He pointed out that in each case the moving party had sought to visit legal consequences upon the defendant or defendants because of what he or they had said or done either in parliament or with 80 (1986) 5 NSWLR 18. 81 (1986) 5 NSWLR 18 at 26. 82 (1986) 5 NSWLR 18 at 30. 83 (1986) 5 NSWLR 18 at 30-31. -- 25 of 65 -- [2026] SASCA 65 B Doyle AJA 22 the authority of the parliament. Hunt J observed that each of them fell ‘squarely within’ the description of the eighth declaration in the Bill of Rights.84 94 Section 16(3) of the Parliamentary Privileges Act 1987 (Cth) (‘Privileges Act’) overcame the effect of Hunt J’s ruling so far as privileges of the Commonwealth Parliament are concerned. Section 16(2) also gave a wide meaning to ‘proceedings in Parliament’ in a way that was significant to the decision in Rowley v O’Chee. As introduced, s 16 provided as follows: 16—Parliamentary privilege in court proceedings (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 Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section. (2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, "proceedings in Parliament" means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes- (a) the giving of evidence before a House or a committee, and evidence so given; (b) the presentation or submission of a document to a House or committee; (c) the preparation of a document for 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 a House or a committee and the document so formulated, made or published. (3) In proceedings in any 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 Parliament, 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 Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament. (4) A court or tribunal shall not- (a) require to be produced, or admit into evidence, a document that has been prepared for the purpose of submission, and submitted, to a House or a 84 (1986) 5 NSWLR 18 at 31. -- 26 of 65 -- [2026] SASCA 65 B Doyle AJA 23 committee and has been directed by a House or a committee to be treated as evidence taken in camera, or admit evidence relating to such a document; or (b) admit evidence concerning any oral evidence taken by a House or a committee in camera or require to be produced or admit into evidence a document recording or reporting any such oral evidence; unless a House or a committee has published, or authorised the publication of, that document or a report of that oral evidence. (5) In relation to proceedings in a court or tribunal so far as they relate to- (a) a question arising under section 57 of the Constitution; or (b) the interpretation of an Act; neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission in evidence of a record of proceedings in Parliament published by or with the authority of a House or a committee or the making of statements, submissions or comments based on that record. (6) In relation to a prosecution for an offence against this Act or an Act establishing a committee, neither this section nor the Bill of Rights, 1688 shall be taken to prevent or restrict the admission of evidence, the asking of questions, or the making of statements, submissions or comments, in relation to proceedings in Parliament to which the offence relates. (7) Without prejudice to the effect that article 9 of the Bill of Rights, 1688 had, on its true construction, before the commencement of this Act, this section does not affect proceedings in a court or a tribunal that commenced before the commencement of this Act. 95 In Pepper (Inspector of Taxes) v Hart,85 Lord Browne-Wilkinson, with whom the other Law Lords relevantly agreed, held that relaxing the rule concerning the use of ministerial statements in parliament as an aid in some cases to the construction of legislation did not amount to questioning or impeaching within the meaning of Art 9. He said that even taking a generous approach to the construction of a provision of Art 9’s highest constitutional importance, having resort to what was said did not amount to ‘questioning’ in the relevant sense. He reasoned that because Art 9 applied not only in any court but also in any place out of parliament, the contrary view would mean that any comment in the media or elsewhere about what was said in parliament amounted to ‘questioning’ since Members must be expected to speak and act taking into account what political commentators and others would say.86 96 In Lord Browne-Wilkinson’s view:87 85 [1993] AC 593. 86 [1993] AC 593 at 638. 87 [1993] AC 593 at 638. -- 27 of 65 -- [2026] SASCA 65 B Doyle AJA 24 … the plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule will not involve the courts in criticising what is said in Parliament. The purpose of looking at Hansard will not be to construe the words used by the Minister but to give effect to the words used so long as they are clear. Far from questioning the independence of Parliament and its debates, the courts would be giving effect to what is said and done there. 97 He went on to say that:88 As to the authorities, in Church of Scientology of California v Johnson-Smith [1972] 1 QB 522, the plaintiff sued the defendant, a Member of Parliament, for an alleged libel on television and sought to introduce evidence of what the defendant had said in the House of Commons as proof of malice. Browne J held, rightly in my view, that such use would breach article 9 as questioning the motives and intentions of a Member of the House. To the extent that he went further so as to suggest that in no circumstances could the speeches be looked at other than for the purposes of seeing what was said on a particular date, his remarks have to be understood in the context of the issues which arose in that case. Those issues included an allegation that the defendant acted improperly in Parliament in saying what he did in Parliament. That plainly would amount to questioning a member's behaviour in Parliament and infringe article 9. 98 Lord Browne-Wilkinson returned to the subject when delivering the advice of the Privy Council in Prebble.89 Before Prebble, the Full Court of the Supreme Court of this State, in Wright v Lewis,90 was confronted with a very similar problem to that which had arisen in New Zealand. 99 In Wright v Lewis, the primary judge had struck out defences and the defendant’s proposed interrogatories about statements made by the plaintiff in Parliament. The defendants proposed to rely upon those statements in support of pleas of qualified privilege, fair comment and justification in response to the plaintiff’s claim in defamation. 100 King CJ said that if the judge’s decision was correct, it produced a remarkable result, because:91 [a] Member of Parliament could sue for defamation in respect of his criticism of his statements or conduct in the Parliament. The defendant would be precluded, however, from alleging and proving that what was said by way of criticism was true. This would amount to a gross distortion of the law of defamation in its application to such a situation. Defamation in law is by definition an untrue imputation against the reputation of another … If the defendant were precluded from proving the truth of what is alleged, the Member of Parliament would be entitled to recover damages, if no other defence applied, for an imputation which was perfectly true. Moreover the defence of fair comment would often be unavailable, as in the present case, because it would not be permissible to prove the factual foundation for the expression of opinion. The defence of qualified privilege might 88 [1993] AC 593 at 639. 89 [1995] 1 AC 321. 90 (1990) 53 SASR 416. 91 (1990) 53 SASR 416 at 421-422. -- 28 of 65 -- [2026] SASCA 65 B Doyle AJA 25 be seriously inhibited because the defendant would be prevented from answering an allegation of express malice by proving the facts as known to him. If this is the true legal position, it is difficult to envisage how a court could apply the law of defamation in a rational way to an action by a Member of Parliament in respect of an imputation relating to his statements or conduct in the House, or could try such an action fairly or adjudicate upon it justly. 101 After acknowledging that courts have interpreted and applied the privilege in widely different ways,92 King CJ said that:93 Parliamentary privilege does not operate to prevent citizens from subjecting the actions and statements of Members of Parliament to criticism, even severe criticism. … If a Member of Parliament could recover damages for true statements about his conduct in Parliament because the maker of the statement was prevented from proving their truth, public criticism of the conduct of Members of the Parliament would be effectively stifled. As I have already pointed out, neither the defences of qualified privilege nor fair comment would provide adequate protection in all cases. The tendency of such a rule would be to protect the conduct of Members of Parliament in the Parliament from the public scrutiny which is an essential feature of modern notions of public accountability. Does Parliamentary privilege go so far? There can be no doubt that some of the more general expressions of the ambit of Parliamentary privilege found in the cases and in learned writings, if understood literally, would have the effect of precluding a defendant from justifying imputations on a Member of Parliament in relation to his statements and conduct in the Parliament. But the authors of those general expressions were not confronted with that particular issue and there does not appear to be any interest of Parliament or the public which warrants such a rule. Freedom of speech and deliberation in the Parliament is the primary value sought to be protected by Parliamentary privilege. To accord to a defendant the right to defend himself against an action for defamation by proving truth, would not impinge upon such freedom. A member would not be inhibited in the exercise of free speech or of his Parliamentary duties by fear of legal consequences, because he would be aware that his actions and motives could not be examined in court unless he instituted the proceedings which rendered such examination necessary. Only the member's action in launching proceedings alleging a false imputation could lead to an examination in court of the issue of the falsity of the imputation, and therefore of the member's statements and conduct. I cannot think of any other public or Parliamentary interest which could be impaired by such an examination in such circumstances. I do not think that a defendant, so defending himself, can be regarded in any real sense as impeaching or questioning the freedom of speech, debates or proceedings in Parliament as forbidden by Art 9; nor can the courts be fairly regarded as doing so if they permit a defendant to so defend himself. It would not be sought to visit any legal consequences on the member, nor to examine his actions or motives except so far as that examination might be rendered necessary by the member’s own action. The object would be merely to repel the accusation made by the member that a false imputation had been made against him. If Parliamentary privilege operated to prevent a person, exposed to an action by a member for defamation, from defending himself by proving the truth of his criticism of the statements 92 (1990) 53 SASR 416 at 423-425. 93 (1990) 53 SASR 416 at 425-426. -- 29 of 65 -- [2026] SASCA 65 B Doyle AJA 26 or conduct of the member, it would indeed by ‘turned into an abominable instrument of oppression’: Adam v Ward (supra). 102 For those reasons, King CJ considered the appeal should be allowed with respect to the striking out of the particulars in the defence. As for the interrogatories which required the plaintiff to state what he had said in Parliament, the Chief Justice referred to the rule that a Member was not compellable to answer questions as to the proceedings of the Parliament without the permission of the House whose proceedings were in question but said that:94 I do not see how that rule can possibly apply, however, where the member is plaintiff in an action directly related to statements or conduct in the House. Whether the member agrees with the Hansard record is a question which is very likely to arise in the trial of any such action, and it would be absurd if he could not be compelled to answer. If that be so, there can be no objection to his being asked in interrogatories as to that matter and, indeed, other matters bearing on the issues raised upon the pleadings. 103 White J agreed with King CJ’s reasons and added further reasons of his own to similar effect. Olsson J delivered separate reasons reaching the same outcome. He said that the privilege erected by the Bill of Rights was no more than a ‘shield of defence’ which extended only so far as was necessary to protect a member of parliament against legal proceedings sought to be brought against him by virtue of his actions within the House. It was not available to a member as an indirect weapon of attack, to facilitate the bringing of an action for damages by him against others by emasculating what might otherwise be valid defences available to them under the law.95 104 The Court did not consider whether the injustice that it considered was produced by the primary judge’s decision could alternatively be ameliorated by the granting of a stay. That, however, was the approach taken in Prebble by the New Zealand Court of Appeal. 105 The facts of that case were similar to Wright v Lewis save that the defences of justification relied mainly on statements made outside of Parliament. In the Privy Council, the defendant’s reliance upon statements made in Parliament, and the effect upon the defendant in precluding reliance upon the latter, was seen as ‘limited’.96 In that respect, a contrast with Wright v Lewis was drawn, suggesting that their Lordships would, in that case, have precluded the defendant from raising the defences based on statements made in Parliament, but then granted a stay of the plaintiff’s action.97 106 The Privy Council referred both to Art 9 of the Bill of Rights and a wider principle that the courts and parliament were both astute to recognise their 94 (1990) 53 SASR 416 at 427. 95 (1990) 53 SASR 416 at 447. 96 [1995] 1 AC 321 at 338. 97 [1995] 1 AC 321 at 338. -- 30 of 65 -- [2026] SASCA 65 B Doyle AJA 27 respective constitutional roles by not allowing any challenge to be made to what was said and done in the other place.98 Lord Browne-Wilkinson went on:99 According to conventional wisdom, the combined operation of article 9 and that wider principle would undoubtedly prohibit any suggestion in the present action (whether by way of direct evidence, cross-examination or submission) that statements were made in the House which were lies or motivated by a desire to mislead. It would also prohibit any suggestion that proceedings in the House were initiated or carried through into legislation in pursuance of the alleged conspiracy. However, it is the defendant’s case that the principle has a more limited scope. The defendant submits, first, that the principle only operates to prevent the questioning of statements made in the House in proceedings which seek to assert legal consequences against the maker of the statement for making that statement. Alternatively, the defendant submits that Parliamentary privilege does not apply where it is the member of Parliament himself who brings proceedings for libel and Parliamentary privilege would operate so as to prevent a defendant who wishes to justify the libel from challenging the veracity or bona fides of the plaintiff in making statements in the House. 107 His Lordship went on to consider whether R v Murphy supported the first proposition, and whether Wright v Lewis supported the alternative proposition. 108 As to the first, whilst not purporting to pronounce upon Australian law, it was said that Hunt J’s approach was not correct so far as the rest of the Commonwealth was concerned. It was inconsistent with other authorities100 and, so far as it was based on the mischief leading to Art 9 being the assertion by the King’s Courts of a right to hold a Member of Parliament criminally or legally liable for what he had done or said in Parliament, this view:101 … discounts the basic concept underlying Article 9, viz. the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect. Moreover to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non-intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue. 98 [1995] 1 AC 321 at 332. 99 [1995] 1 AC 321 at 332. 100 Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 and Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1. 101 [1995] 1 AC 321 at 334. -- 31 of 65 -- [2026] SASCA 65 B Doyle AJA 28 109 As to Wright v Lewis, whilst their Lordships were sympathetic with the concern felt by the Full Court, they could not accept that the fact that the maker of the statement was the initiator of the court proceedings could affect the question whether Art 9 was infringed. Lord Browne-Wilkinson said:102 The privilege protected by article 9 is the privilege of Parliament itself. The actions of any individual member of Parliament, even if he has an individual privilege of his own, cannot determine whether or not the privilege of Parliament is to apply. The wider principle encapsulated in Blackstone’s words quoted above prevents the courts from adjudicating on issues arising in or concerning the House, viz, whether or not a member has misled the House or acted from improper motives. The decision of an individual member cannot override that collective privilege of the House to be the sole judge of such matters. 110 Doubts about the approach taken in Wright v Lewis have also been expressed in Australian courts, including in the course of obiter observations in Rann v Olsen.103 111 However, it is convenient to first address the Queensland Court of Appeal’s decision in Rowley v O’Chee,104 which was central to the submissions in this appeal. 112 Mr Rowley made a claim in defamation against Senator O’Chee arising out of statements made by O’Chee on radio. Those statements came against a background of questions asked by Senator O’Chee in the Senate. In resisting the production for inspection of a number of documents discovered by him, Senator O’Chee swore that the documents in question were created, prepared, brought into existence or had come into his possession for the purposes of, or incidental to the transacting of, the business of the Senate. 113 The primary judge overruled the claim of privilege. Senator O’Chee appealed. McPherson JA (with whom Moynihan J relevantly agreed) gave consideration to whether Art 9, as affected by s 16(2) of the Privileges Act, required the appeal to be allowed. 114 McPherson JA described the primary purpose of Art 9 as being to ensure that members were not subjected to pains or penalties for what they said in the course of debate or other proceedings in either of the Houses.105 115 However, as is apparent from the decision he reached, he gave the expression ‘impeach’ a meaning that extended beyond that mischief. His Honour observed that the Oxford Dictionary definition meanings included ‘to impede, hinder, prevent’ and ‘to hinder the action, progress, or well-being of; to affect detrimentally or prejudicially; to hurt, harm, injure, endamage, impair’. Both meanings, he said, were in current use in 1688 and, applying the proposition that 102 [1995] 1 AC 321 at 335. 103 (2000) 76 SASR 450. 104 [2000] 1 Qd R 207. 105 [2000] 1 Qd R 207 at 218. -- 32 of 65 -- [2026] SASCA 65 B Doyle AJA 29 the best and surest mode of construing an instrument was to read it in the sense in which it would have been applied when it was drawn up, McPherson JA considered that, when read with s 16(2) of the Privileges Act, Art 9 meant that:106 … preparation of a document for purposes of or incidental to the transacting of the business of a House is not to be impeded, hindered or prevented (first meaning); or is not to be detrimentally or prejudicially affected, or impaired (second meaning). 116 His Honour went on to refer to material before the Court which tended to suggest that the relevant documents may have included material provided confidentially by informants.107 To require compulsory production of the materials might have a ‘chilling effect’ on the Senator’s ability to pursue the subject in the House. McPherson JA also doubted whether, assuming privilege was engaged, an individual member of the House had authority to waive it unilaterally.108 He concluded:109 The American decisions recognise an undeniable characteristic of human behaviour. Sources of confidential information quickly dry up when confronted by the prospect of compulsory disclosure in legal proceedings. Acknowledging that to be so, I nevertheless prefer to base my decision on the particular wording of the statutory language in this case. Article 9 of the Bill of Rights prevents proceedings in parliament from being hindered, impeded or impaired in a court. By s 16(2) of the 1987 Act proceedings in parliament include the preparation of a document for purposes of or incidental to the transacting of any business of a House. More generally, such proceedings include all acts done for such purposes, together with any acts that are incidental to them. Bringing documents into existence for such purposes; or, for those purposes, collecting or assembling them; or coming into possession of them, are therefore capable of amounting to ‘proceedings in Parliament’. Senator O'Chee has sworn that, in relation to the documents in section B of his affidavit, he did such things for those purposes. To order him to produce those documents would be to hinder or impede the doing of such acts for those purposes. If the making of the order has not already hindered or impeded the transacting of this matter of Senate business, it is predictable that in future it will do so with respect either to this or to some other matter of business being, or about to be, transacted in a House of Parliament. If the decision below is allowed to stand, the next step in the action no doubt will be to administer interrogatories questioning the Senator about the sources or other details of the information on which he based his statements to the Senate. Interrogatories are part of a process of discovery or disclosure of which the production of documents for inspection is simply a particular form. Proceedings in Parliament will inevitably be hindered, impeded or impaired if members realise that acts of the kind done here for purposes of Parliamentary debates or question time are vulnerable to compulsory court process of that kind. That is a state of affairs which, I am persuaded, both the Bill of Rights and the Act of 1987 are intended to prevent. 117 Fitzgerald P considered the appeal should be allowed, and Senator O’Chee provided a further opportunity to more precisely address the basis for the claim of 106 [2000] 1 Qd R 207 at 222-223. 107 [2000] 1 Qd R 207 at 224. 108 [2000] 1 Qd R 207 at 225. 109 [2000] 1 Qd R 207 at 227. -- 33 of 65 -- [2026] SASCA 65 B Doyle AJA 30 privilege in respect of particular documents, but he clearly took a much narrower view of the scope of the relevant privilege. He observed that:110 Mr Rowley does not seek to challenge, criticise or question Senator O'Chee's preparation or coming into possession of the material documents, or his parliamentary speeches, which are wholly irrelevant to Mr Rowley's pleaded case and have not been raised by Senator O'Chee in his defence. If given effect, the primary argument for Senator O'Chee's claim to privilege would expand the boundaries of parliamentary privilege to limits which are, to my mind, unnecessary, excessive and unsupported by authority and not within the statutory language. In my opinion, that argument is incorrect. 118 In Rann v Olsen,111 the plaintiff had given evidence to a Committee of the Commonwealth Parliament. The defendant was alleged to have defamed the plaintiff by saying the plaintiff lied to the Committee. The defendant relied upon defences of qualified privilege and justification; the plaintiff sought to support the truth of what he had said to the Committee. A number of issues were stated for the consideration of the Full Court. At issue was the validity and consequences for the proceedings of s 16 of the Privileges Act. A five-member Full Court sat because it was possible that the Court would be invited to overrule Wright v Lewis. 119 Doyle CJ (with whom Mullighan J agreed) rejected an argument that, drawing upon the interpretation and application given to Art 9 by King CJ in Wright v Lewis, s 16 should not be understood as intended to protect the speech of a plaintiff who chooses by their legal action to give occasion to examine the truth of what they said to Parliament. Doyle CJ observed that s 16(3) was plainly intended, at least, to reverse the effect of the decision in R v Murphy, and to maintain a ‘broad scope’ for the operation of Art 9.112 120 Whilst acknowledging the force of the reasoning that appealed to King CJ in Wright v Lewis,113 Doyle CJ said that his Honour had been dealing with Art 9:114 the terms of which are brief and general, and which lend themselves very much to development and application in terms of traditional common law reasoning. Article 9 states a broad principle, and is more readily interpreted by reference to the object of that principle. It is simply not possible to approach the specific terms of s 16(3) in the same fashion. 121 His Honour considered there was a further obstacle to accepting the plaintiff’s submission that s 16(3) did not preclude the defendant advancing a defence of justification based on statements made by the plaintiff to parliament. It was that whilst preserving freedom of speech in parliament was what underlay Art 9, there was another fundamental principle ‘embedded in Art 9 and in s 49 of 110 [2000] 1 Qd R 207 at 214. 111 (2000) 76 SASR 450. 112 (2000) 76 SASR 450 at [88]-[102]. 113 (2000) 76 SASR 450 at [104]. 114 (2000) 76 SASR 450 at [107]. -- 34 of 65 -- [2026] SASCA 65 B Doyle AJA 31 the Constitution, and underlying s 16’, namely, the principle of mutual non- intervention to which the Privy Council had made reference in Prebble.115 122 The Chief Justice went on to say:116 It would not promote the purpose or object of the Privileges Act, which I take to be to preserve freedom of speech in Parliament and to reflect the principle of non-intervention, to interpret s 16(3) in a manner that made its operation subject to a judicial conclusion, on a case by case basis, that in the particular case the course of action proposed would impinge upon freedom of speech in Parliament. That approach is, if anything, destructive of freedom of speech because it leaves the person speaking uncertain whether what the person says in Parliament can be challenged in a court. The answer will be that the possibility of a challenge will depend upon a judicial assessment of the effect of the challenge in the particular case, and in many cases it will be uncertain what the result of that assessment will be. Of course, I am not so naïve as to suggest that on my approach to s 16(3) its operation is always clear. However, treating the section as subject to a judicial assessment, or as subject to exceptions that depend upon the circumstances in which the matter comes before the Court, as did King CJ in Wright v Lewis, will be productive of considerable uncertainty. 123 Doyle CJ had earlier emphasised, however, that a court was not precluded from making a finding on a matter simply because parliament has not considered or debated the matter, or by some means made a finding upon it. It was only when the Court was ‘invited to challenge the parliamentary consideration of the matter’ that the ‘principle of non-intervention’ operated.117 By way of illustration, in the Chief Justice’s view, parliamentary privilege did not stand in the way of the defendant’s reliance upon what had been said in Parliament as providing the foundation for a defence of qualified privilege. That plea would not involve any attack on the truth of what had been said in Parliament. It would only be necessary to show what had been said in fact, in order to demonstrate that the impugned publication was in response to that statement.118 124 Having concluded that s 16(3) of the Privileges Act precluded the defendant from advancing a defence of justification, Doyle CJ turned to consider whether the provision was invalid as impermissibly curtailing the implied freedom of political communication. He considered that the law did pose a substantial burden or restriction upon communication about matters involving the parliament. However, it was directed towards a legitimate end and was reasonably appropriate and adapted. In reaching that conclusion, he acknowledged that the approach taken by King CJ in Wright v Lewis might be thought to illustrate that the provision did not need to go as far as it did. However, in his view:119 … the observations of King CJ do not acknowledge the significance of the principle of non- intervention. There is more at stake than protecting the person who utters protected speech, 115 (2000) 76 SASR 450 at [115]-[118]. 116 (2000) 76 SASR 450 at [124]. 117 (2000) 76 SASR 450 at [122]. 118 (2000) 76 SASR 450 at [60]-[77]. 119 (2000) 76 SASR 450 at [177]. -- 35 of 65 -- [2026] SASCA 65 B Doyle AJA 32 and protecting the institution of Parliament by protecting that person. The principle that in certain respects the courts regard Parliament as the exclusive judge of what transpires in the course of its proceedings, is equally involved. An undeniable consequence of the approach of King CJ is to allow the courts to intrude into an area from which, but for the action of the plaintiff, the courts would otherwise be excluded. 125 In the end, Doyle CJ indicated that because he had resolved the question of the validity of s 16(3) on the footing that it expanded the operation of Art 9, it was not strictly necessary to decide the correctness of Wright v Lewis.120 126 Doyle CJ considered that a stay of the kind considered in Prebble might be required by virtue of the operation of the privilege, but considered it was inappropriate to decide on the case stated whether a stay should be granted. 127 Prior J considered s 16(3) of the Privileges Act was declaratory of Art 9 and that R v Murphy and Wright v Lewis were wrongly decided. The section was necessarily valid because it simply reflected what s 49 of the Constitution envisaged. In his view the proper means of addressing the injustice that troubled the Court in Wright v Lewis was the grant of a stay. Unlike the Chief Justice, he considered the Court was in a position to say the action should be stayed, given the centrality of the justification plea in the case.121 128 Perry J considered s 16(3) extended the operation of Art 9. He reached that conclusion by reference to its text. Noting that in Prebble the Privy Council had said Art 9 was a manifestation of a ‘wider principle’ (of non-interference), Perry J considered s 16 should be construed by reference to the ‘wider principle’.122 He considered that the case provided an opportunity to review R v Murphy or Wright v Lewis and that for the reasons given by the Privy Council in Prebble, neither decision should be regarded as good law.123 His Honour considered the action should be stayed. 129 Lander J was at pains not to determine whether the Privileges Act was declaratory of Art 9 and whether the decision in Wright v Lewis was correct.124 He agreed that s 16(3) precluded a defence of justification but because of the view he took of the pleadings, he did not consider the Court should answer some of the questions posed, including whether a stay should be granted. 130 A subsequent Full Court in Cornwall v Rowan125 referred with apparent approval to what had been said by the Privy Council in Prebble, and by Doyle CJ in Rann v Olsen, without explicitly commenting on the correctness of Wright v Lewis.126 120 (2000) 76 SASR 450 at [192], see also at [136]. 121 (2000) 76 SASR 450 at [224]-[234]. 122 (2000) 76 SASR 450 at [235]-[245]. 123 (2000) 76 SASR 450 at [251]. 124 (2000) 76 SASR 450 at [288]-[293]. 125 (2004) 90 SASR 269. 126 (2004) 90 SASR 269 at [394]-[397] (Bleby, Besanko and Sulan JJ). -- 36 of 65 -- [2026] SASCA 65 B Doyle AJA 33 131 The scope of the privilege arose in a slightly different context in Mees v Roads Corporation127 (‘Mees’). The applicant contended that information provided by the respondents to a federal Minister under legislation was misleading and sought injunctive relief against the respondents. The respondents wished to rely on Hansard reports of statements made in the Victorian Parliament to establish the truth of the facts in them. The respondents contended that the applicant could not argue that those statements were untrue or misleading. 132 Gray J held that the records could be tendered only for the purpose of establishing what was said. The Court could not treat the evidence as a basis for determining the truth of the statement. However, if, in determining the ultimate issue before the Court, the ultimate conclusion led to an inference that a statement made to Parliament was misleading, that did not infringe the privilege, so long as the Court refrained from making any finding, or drawing any inference, to the effect Parliament had been misled. 133 In the course of his reasons, Gray J observed:128 Aside from its historical context, which was a doctrinal struggle for supremacy between absolute monarchy and parliamentary democracy (see Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (22nd ed, 1997) at pp 68-81), the privilege has a modern rationale in the constitutional separation of powers (see Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332 ). A member of Parliament must be able to participate in debates and other proceedings in Parliament, safe in the knowledge that he or she will not be called to account in a court in respect of the truth or content of what is said (see Prebble at 334 and Sankey v Whitlam (1978) 142 CLR 1 at 35 per Gibbs ACJ). Only Parliament has the right to discipline its members for their conduct in its affairs. The courts must refrain from anything which would interfere with or usurp this function of Parliament (see Prebble at 334 ). Further, the privilege attaches to Parliament, and not to its members (see Sankey at 36-37 per Gibbs ACJ). An individual member cannot waive it by participation in a court proceeding in which it might be considered useful, or desirable, to put in issue what was said in Parliament (see Hamsher v Swift (1992) 33 FCR 545 at 564). At the same time, Art 9 of the Bill of Rights cannot be taken absolutely literally. It is a fundamental tenet of a Westminster-style democracy that there be debate in the community about political issues. People are free to challenge and criticise what is said in Parliament and to do so publicly, vociferously and stringently. Any suggestion that Art 9 now precludes media debate about the proceedings of Parliaments, including vigorous debate about whether a member has misled Parliament, would now be greeted with derision (see Pepper at 638 per Lord Browne-Wilkinson, with whom Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Griffiths, Lord Ackner and Lord Oliver of Aylmerton agreed). No doubt the original purpose of Art 9 was to constrain the executive arm of government, in the form of the monarch (see Pepper at 638 per Lord Browne-Wilkinson). In Westminster-style democracies, however, the executive has come to dominate the legislature, so that, through the party system, individual members of Parliament can face effective discipline by the executive in respect of their roles in proceedings in Parliament. In the case of non- government members, party discipline is also relevant in constraining the conduct of 127 (2003) 128 FCR 418 at [87]. 128 (2003) 128 FCR 418 at [76]-[78]. -- 37 of 65 -- [2026] SASCA 65 B Doyle AJA 34 members of modern Parliaments and is effective, even in cases where it might be thought to make members accountable other than to Parliament itself for what they say in the course of parliamentary proceedings. As a result of these developments, Art 9 seems to be construed now as a constraint on the judicial arm of government. The fundamental rationale of a court is the resolution of legal disputes through the exercise of impartial decision-making power and the ability to enforce the resulting decisions. Courts have a duty to resolve the disputes that are brought to them. There is therefore obvious scope for conflict between the duty of a court to decide a particular case according to law, and the privilege of Parliament to retain control over its own proceedings in a case which raises, or has the potential to raise, an issue about what has occurred in parliamentary proceedings. 134 To this point it may be observed that whilst different approaches were taken to the extent to which a party may by adducing evidence, asking questions, or making submissions, place in issue a statement made to or in Parliament, Rowley v O’Chee is the first and apparently only instance of an Australian intermediate appellate court finding that the compulsory disclosure of material relating to parliamentary proceedings has the capacity to ‘impeach’ freedom of speech or debate in respect of those proceedings, on the basis of a kind of chilling effect that hinders or impairs free speech or debate. 135 The approach in Rowley v O’Chee has however been applied in a number of single instance decisions. 136 In Sportsbet Pty Ltd v New South Wales (No 3),129 Jagot J accepted that a document created for the purpose of a minister conducting business in parliament was not required to be produced for inspection in answer to a subpoena. Her Honour said that, consistent with the approach in Rowley v O’Chee, she considered that the privilege protected the document from disclosure and not mere use.130 Mansfield J adopted the same approach in Sportsbet Pty Ltd v Harness Racing Victoria (No 4).131 In neither case, it seems, was there any challenge to the approach in Rowley v O’Chee. 137 The issue arose again in Re OPEL Networks Pty Ltd (in liq)132 (‘Re OPEL Networks’). It appears that in that case the party seeking production under a subpoena sought to distinguish, rather than challenge, Rowley v O’Chee. Austin J said that whilst there was no specific evidence before him that anyone would be ‘impeached’ (in the sense of impaired or deterred or prejudiced) by the production of the documents in question, the claim of privilege should be upheld. He said:133 … not without hesitation, I have reached the conclusion that compulsory production of these documents would “impeach” (as explained in Rowley v O’Chee) “proceedings in Parliament” (as extensively defined in s 16(2)(c) of the Parliamentary Privileges Act (Cth)). It seems to me necessarily true, and not dependent upon the evidence of the 129 (2009) 262 ALR 27. 130 (2009) 262 ALR 27 at [21]. 131 [2011] FCA 196. 132 (2010) 77 NSWLR 128. 133 (2010) 77 NSWLR 128 at [118]-[119]. -- 38 of 65 -- [2026] SASCA 65 B Doyle AJA 35 particular case, that if briefings and draft 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 might 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 Roads Corporation (2003) 128 FCR 418 at 442 [75]–[79] per Gray J). My conclusion as to the scope of Rowley v O’Chee is generally consistent with the judgment of Jagot J in Sportsbet Pty Ltd v New South Wales (No 3) [2009] FCA 1283; (2009) 262 ALR 27 at 32 [19] and 33 [21], though the issues in that case are rather different from the present case. 138 The reasoning in Rowley v O’Chee and Re OPEL Networks was referred to and adopted in the Supreme Court of the Australian Capital Territory in Australian Capital Territory v SMEC Australia Pty Ltd.134 139 More recently, in CPB Contractors Pty Ltd v State of South Australia,135 Kourakis CJ upheld an objection to production of discoverable documents in the context of an arbitration on the basis of parliamentary privilege. It does not appear that any argument was advanced about the correctness of Rowley v O’Chee. In upholding one of the objections, his Honour said:136 The preparation of notes for a Minister to participate in parliamentary debate and answer questions which might be raised either directly or in the course of the debate falls well within the core purpose of parliamentary privilege and the privilege is essential for the purposes of ensuring free debate in Parliament and, in particular, for the purposes of ministerial accountability to Parliament. 140 Further examples may be given of first instance decisions which have proceeded on the basis that, as Rowley v O’Chee suggests, the privilege may operate as a valid objection to compulsory production.137 141 The respondent also pointed to a number of decisions in other jurisdictions. In my view these are of limited assistance. The respondent has cited a Queen’s Bench decision in 2014 in support of ‘impeach’ being understood to embrace ‘hinder’,138 but the observation in that case was made in passing and without obviously accepting that compelled disclosure would amount to a hindrance of the relevant kind. 134 (2018) 337 FLR 390; [2018] ACTSC 252 at [46]-[47] (McWilliam AsJ). 135 [2024] SASC 46. 136 [2024] SASC 46 at [124]. 137 See, eg, Erglis v Buckley [2003] QSC 440 at [14] (Philippides J), Victorian Taxi Families Inc v Taxi Services Commission (2018) 61 VR 91 at [93] (Derham AsJ), cf. Crane v Gething (2000) 97 FCR 9 at [42] (French J). 138 Makudi v Baron Triesman of Tottenham [2014] QB 839 at [20] (Laws LJ, Tomlinson and Rafferty LJJ agreeing). -- 39 of 65 -- [2026] SASCA 65 B Doyle AJA 36 142 The decision in Reavey v Century Newspapers Ltd139 held that compelled disclosure was precluded by parliamentary privilege. However, the decision was of a single judge of the Queen’s Bench Division of the Northern Ireland High Court of Justice and concerned an application to have a court directly compel a parliamentarian to disclose his source for a statement actually made in Parliament. 143 The respondent also cited an Ontario Superior Court decision which, it may be accepted, takes a wide view of parliamentary privilege, holding that it serves the same policy objective underlying witness’ immunity in judicial proceedings, namely, to encourage the full and free participation of witnesses without fear of reprisals.140 However, the actual decision was to uphold an objection to a motion to compel answers to questions asked at the examination for discovery of defendants to an action. 144 The Northern Ireland and Ontario decisions involved curial compulsion against a person who had spoken in parliamentary proceedings, and neither involved any consideration of the historical understanding of the concept of ‘impeachment’. 145 Finally, the respondent drew attention to a decision of the United States Court of Appeals (District of Columbia Circuit) to the effect that the ‘speech or debate’ clause in the United States Constitution includes a non-disclosure privilege.141 That clause, whilst resembling the language of Art 9, is not identical. Further, as the Court there noted, the Supreme Court has not addressed that question. As well, there are some indications in the judgment that the use privilege that inheres in the clause is less nuanced than the modern Australian authorities would suggest for Art 9. 146 These decisions of other common law jurisdictions illustrate that the approach of McPherson JA in Rowley v O’Chee has found voice elsewhere, but it cannot be said to have been established by decisions of courts at the highest level in those jurisdictions. 147 The approach of the majority in Rowley v O’Chee has not been universally acclaimed. Professor Twomey has expressed the view that:142 It is not clear how the production of documents pursuant to [subpoenas, orders for discovery or search warrants] can amount to the questioning or impeaching of parliamentary proceedings in a court or tribunal. If the documents are later sought to be used as evidence in proceedings before a court or tribunal, it is up to that body to decide if they should be admitted as evidence or how they may be used. … 139 [2001] NIQB 17. 140 Guergis v Novak 2022 ONSC 3829 at [77] (Kaufman AsJ). 141 United States v Rayburn House Office Building, Room 2113, 497 F 3d 654 (DC Cir, 2007). 142 Twomey, The Constitution of New South Wales (2004) at pp 502-503 (references omitted). -- 40 of 65 -- [2026] SASCA 65 B Doyle AJA 37 [I]n Rowley v O’Chee the Queensland Supreme Court held that the application of parliamentary privilege prevented the production of documents in discovery, although no clear reason was given why this was the case. 148 More recently, in The President of the Legislative Council of Western Australia v Corruption and Crime Commission (No 2)143 (‘President of the Legislative Council of Western Australia’), Hall J considered whether the exercise by the Corruption and Crime Commission of the power to obtain and examine documents was, when used in respect of documents that relate to the proceedings of Parliament, inconsistent with parliamentary privilege. 149 Justice Hall considered that the nature of parliamentary privilege is such that it is directed to the use to which evidence of proceedings may be put. Unlike legal professional privilege, it is not concerned with maintaining confidentiality. In essence it is a privilege against use, and not against disclosure. It was only where disclosure also necessarily involves prohibited use of documents that the privilege would protect from production.144 150 His Honour commenced his analysis by identifying the scope of parliamentary privilege as it relates to documents. He concluded that it did not extend to every document produced by a member of parliament or their staff in undertaking their duties as an elected representative. There needed to be a close and clear connection between proceedings in the relevant House and the document for it to be potentially protected; the document must be necessarily incidental to the performance of a function in the House for it to attract parliamentary privilege.145 In that context he went on to say:146 Whistle-blowers may be deterred from providing information to members of Parliament if the information that they provide can be produced under compulsion. There may well be a public interest in providing protection for such information, but it is not the role of the courts by 'interpretation' of a long existing provision to significantly extend the scope of parliamentary privilege. It is within the power of Parliament to widen that scope, if it is deemed appropriate to do so, by passing legislation to amend the Parliamentary Privileges Act. 151 Next, Hall J considered what was meant by ‘other place’ in the phrase ‘any court or other place’. His Honour said:147 The privilege finds its primary operation in the courts, but article 9 extends beyond this. The reference to 'any court or other place' contemplates that the proceedings of Parliament can be impeached or questioned in places other than courts. This cannot be taken absolutely literally as it would then operate to prevent debate in the community or the media about political issues. It is beyond question that people are free to challenge and criticise what is 143 [2021] WASC 223. 144 [2021] WASC 223 at [5]. 145 [2021] WASC 223 at [133]. 146 [2021] WASC 223 at [134]. 147 [2021] WASC 223 at [136]-[137] (citations omitted). -- 41 of 65 -- [2026] SASCA 65 B Doyle AJA 38 said in Parliament and do so publicly, vociferously and stringently. So what are the other places that article 9 refers to? The growth in the number of Commissions and Tribunals has been a remarkable feature of the last 50 years. Many of these bodies are provided with wide powers to conduct investigations, compel witnesses and make determinations of fact. These determinations can include, as is the case with the CCC, findings or opinions regarding misconduct. Whilst no penal sanction or civil liability flows from such findings, they can be published in reports. The potential for impact on reputation and public standing is obvious (and, indeed, intended). Furthermore, the CCC, like many other similar bodies, is protected from actions for defamation. This is analogous to the privilege enjoyed by courts and those who appear in courts. These features support the conclusion that the ‘other places’ referred to in article 9 must encompass bodies of this type. If it did not, then the protection that it affords would be significantly watered down. Having regard to the context and the ejusdem generis principle of interpretation, the other places that article 9 refers to must be places that are analogous to courts. In my view this means tribunals, commissions or executive inquiries that determine liability or make findings as to character or conduct. 152 Justice Hall then turned to the question whether parliamentary privilege protects documents from compulsory production. He said:148 The essential nature of parliamentary privilege is that it protects members of Parliament from any legal consequences that could flow from speeches made in Parliament. It ensures that members of Parliament are not deterred from speaking by the threat or risk of being held to account for what they say in a court or other place. It encourages frankness and transparency. In this respect parliamentary privilege can be distinguished from some other privileges, such as legal professional privilege, which protect the confidentiality of communications. There may be rare occasions where the proceedings of Parliament do have a confidential nature. An example is where a committee of Parliament takes evidence in closed session. There is no doubt that a committee has power to do this and that an order in these terms by a committee would protect the evidence from being published or communicated to others. However, the confidential nature of information in these circumstances arises not from article 9 of the Bill of Rights but from the inherent power of Parliament to make orders regarding the conduct of its proceedings. Confidentiality may adhere to proceedings in some circumstances, but it is not an essential or inherent feature of parliamentary proceedings and is not what article 9 protects. In this light, it can be readily seen why parliamentary privilege will act as a bar to the commencement or continuation of civil or criminal court proceedings that seek to impugn things said in Parliament. The most obvious example of this is the protection from actions in defamation for things said in Parliament. What is not so apparent is whether privilege can protect documents from compulsory production. This could arise in the context of notices to produce, search warrants, summonses to produce, or discovery and inspection in civil proceedings. A requirement to produce documents to another person or body does not obviously involve or imply the questioning or impeaching of proceedings in Parliament. The privilege is essentially a non-use privilege rather than a non-disclosure privilege. 153 His Honour accepted, however, that there had been cases in which parliamentary privilege had been relied on to resist compulsory production, most obviously in Rowley v O’Chee. In relation to the question of the scope of the 148 [2021] WASC 223 at [140]-[142]. -- 42 of 65 -- [2026] SASCA 65 B Doyle AJA 39 privilege, Hall J noted the broad effect of s 16(2), and considered that decisions respecting that section were not of assistance when considering Art 9 as it applied in respect of the parliament of Western Australia. In relation to the nature of the privilege (and the meaning of ‘impeached’), Hall J summarised the reasoning of McPherson JA and noted it had been adopted in some later decisions including in the context of State parliaments.149 Hall J then said:150 For my part I have some difficulty in accepting that the broad meaning of 'impeached' adopted in Rowley v O'Chee applies in the present context. I say that not because it relies on an obsolete meaning, but because it shifts the focus from direct protection of freedom of speech in the House to protection of anything that, if revealed, could impact on the exercise of that freedom. That approach has better justification in the context of s 16 of the Commonwealth Act (where the meaning of proceedings has been deliberately expanded) than it does in the context of article 9 in its original unamended state. The purpose of article 9 is relevant but it cannot extend the words beyond their plain meaning where there is no necessity to do so. Article 9 is concerned with the impeaching of proceedings, not with other conduct that may only have an indirect impact on those proceedings. However, I accept that I should not depart from Rowley v O'Chee unless I am satisfied that it is plainly wrong. It is unnecessary for me to reach such a conclusion because I am satisfied that production of documents to the CCC falls within an uncontentious meaning of the word impeached. In my view parliamentary privilege as provided for in article 9 is concerned with the use to which the evidence of the proceedings is put. A requirement to produce records does not as such breach the privilege, particularly when it is borne in mind that confidentiality is not the essence of what is protected. Thus, whether production of records will breach privilege depends on what use is made of the evidence or document. That is, does that use put any member of Parliament at risk of adverse consequence by reason of what has been said or done in Parliament? In this case, the question is how does production of documents that are connected to proceedings put a member of Parliament at such risk? 154 Turning to the particular issue for resolution, Hall J then said:151 In this respect it is relevant to distinguish between court proceedings and other types of inquiry. In the context of court proceedings it is readily understandable that a distinction could be made between production of documents and their use. Documents could be produced under subpoena which would require them to be provided to the court. However, their use to impeach or question the proceedings of Parliament would arguably not occur until such time as they were referred to in the course of proceedings or tendered in evidence. Such a distinction is not meaningful in the case of administrative bodies such as the CCC. Inquiries conducted by the CCC are unlike court proceedings in that there is no decision maker independent of the parties. The CCC is both an investigative body and a determinative one. Furthermore, in a CCC investigation there is no initiating process or pleadings that define the nature of the proceedings and no necessity to hold hearings either private or public. Nor is there an existing forum in which objection to use of privileged material can be taken and ruled upon before any such use occurs. The CCC may conduct an inquiry and produce a report based entirely upon investigations conducted without hearings. Whilst there may be a need to render procedural fairness to those adversely 149 [2021] WASC 223 at [143]-[148]. 150 [2021] WASC 223 at [149]-[150] (citations omitted). 151 [2021] WASC 223 at [152]-[154] (citations omitted). -- 43 of 65 -- [2026] SASCA 65 B Doyle AJA 40 affected, that will not necessarily occur at a time which precedes the use of any documents that are protected by parliamentary privilege. By the time any possible findings are made known or published the use has occurred and any opportunity to object has been lost. Thus, the distinction between production and use in the case of an investigative and determinative body such as the CCC is more difficult to make. On this approach, even if the phrase 'questioned or impeached' was confined to use, there would be scope for parliamentary privilege to prevent production of documents in respect of a CCC notice. Since production of documents to the CCC enables those documents to be immediately used in a way that could have adverse consequences for a member of Parliament, it must be accepted that the point at which parliamentary privilege would be breached would be at the point of production. This does not, however, necessarily mean that a notice to produce and examine is invalid at the time it is issued. It is possible, as was the case here, for notices not to require immediate production of the documents. Where there is a hiatus between service of the notice and the date of compliance there is a real opportunity for privilege to be claimed before any use occurs. Privilege would not be lost or breached until the time of production. 155 As is clear from those passages, Hall J did not consider it necessary to consider whether he could depart from Rowley v O’Chee. First, that decision concerned s 16 of the Privileges Act. Secondly, whether or not production of documents discovered in curial proceedings did involve impeaching parliamentary proceedings (within the expanded meaning given to those proceedings by s 16(2) of the Privileges Act), the production of documents closely connected to proceedings in parliament in response to notices issued by the CCC involved the potential impeaching or questioning of parliamentary proceedings in a relevant place. In substance, production in answer to a notice would inevitably lead to the use of the documents in a way that could result in adverse consequences for a member of Parliament. Or, put another way, what was involved was more than mere disclosure. It was disclosure where it was on the cards that the material would be used to the potential detriment of (or ‘held against’) the person who had engaged in parliamentary proceedings. 156 Before attempting to draw together any threads in the modern authorities, mention should be made of two recent High Court decisions in which passing reference has been made to Rowley v O’Chee, and a recent decision of the New South Wales Court of Appeal concerning the scope of Art 9. 157 Crime and Corruption Commission v Carne152 (‘Carne’) concerned an investigation by the Crime and Corruption Commission into corrupt conduct and maladministration involving Queensland’s Public Trustee, Mr Carne. Mr Carne sought, and the Queensland Court of Appeal granted, a declaration that a report prepared by the Commission and provided to a committee of the Queensland Parliament was not was not a report for the purposes of s 69(1) of the legislation governing the Commission’s work. 152 (2023) 280 CLR 555. -- 44 of 65 -- [2026] SASCA 65 B Doyle AJA 41 158 In dismissing the appeal, the High Court rejected the proposition that the declaration could not be made because it infringed the prohibition on impeaching or questioning proceedings in the Legislative Assembly.153 159 Kiefel CJ, Gageler and Jagot JJ noted what had been said by McPherson JA in Rowley v O’Chee about the expression ‘purposes’ in this context.154 They held that there needed to be a functional connection with the Assembly or committee in question. The report in question was prepared for the purposes of the Commission, not the committee, and a court was not precluded from making a ruling as to the proper character of the report.155 The committee had not taken any steps in relation to the report. If it had commenced consideration of the report with a view to deciding whether to seek that it be tabled, the ‘large question’ of the preclusive effect of the privilege might have had to be determined.156 160 Gordon and Edelman JJ reasoned similarly as to the need for a functional connection with the work of a parliamentary committee before relevant acts could come within the purview of parliamentary privilege under Queensland law. In the course of so concluding they endorsed McPherson JA’s observation in Rowley v O’Chee that if the matter were left at large, junk mail received by a committee would attract parliamentary privilege.157 The committee in this case had not done anything with the report or anything amounting to retaining it for the purpose of transacting its business, and so no question of privilege arose.158 In the course of their reasons, they said:159 Parliamentary privilege is a “bulwark of representative government”.160 It has long antecedents.161 It allows Parliament to perform its functions without obstruction.162 Parliamentary privilege shields certain areas of legislative activity from judicial or executive review, thereby giving “the legislative branch of government the autonomy it requires to perform its constitutional functions”.163 Parliamentary privilege operates to ensure that a person who participates in parliamentary proceedings can do so knowing, at the time of that participation, that what they say cannot “later be held against them in the courts”, thereby ensuring that such a person is not inhibited in providing information to the 153 Which, by relevant legislation, were defined to include 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. 154 (2023) 280 CLR 555 at [34]-[36]. 155 (2023) 280 CLR 555 at [35]-[36]. See also Gordon and Edelman JJ at [78]. 156 (2023) 280 CLR 555 at [39]. 157 (2023) 280 CLR 555 at [78], [110]-[112]. 158 (2023) 280 CLR 555 at [116]. 159 (2023) 280 CLR 555 at [106]. 160 Rowley v O’Chee [2000] 1 Qd R 207 at 218, citing R v Jackson (1987) 8 NSWLR 116 at 118, 121. 161 See Bill of Rights 1688, Art 9; Australia, House of Representatives, Parliamentary Privileges Bill 1987, Explanatory Memorandum, p 9; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332. 162 Elder, House of Representatives Practice, 7th ed (2018), p 733. See also Szwarcbord v Gallop (2002) 167 FLR 262 at 265 [8]. 163 Chagnon v Syndicat de la fonction publique et parapublique du Quebec [2018] 2 SCR 687 at 698 [1]. -- 45 of 65 -- [2026] SASCA 65 B Doyle AJA 42 Parliament or in otherwise participating in parliamentary proceedings.164 This is the “basic concept underlying article 9” of the Bill of Rights 1688.165 161 Whilst their Honours referred by way of footnote to passages in Rowley v O’Chee, and they described Art 9 as operating to avoid inhibiting the provision of information to the parliament, this was, in their Honours’ analysis, achieved by removing the risk of a person’s participation being ‘held against them’ in the courts. In this respect, their Honours deployed similar language to that used by Gibbs ACJ in Sankey v Whitlam. It is not apparent that their Honours considered that the risk of information becoming known would, without more, have such an impact on parliamentary proceedings that it would engage the privilege. 162 Justice Edelman returned to the question of parliamentary privilege in his concurring reasons in Attorney-General (Tas) v Casimaty166 (‘Casimaty’). In that case an individual (Mr Casimaty), who claimed an interest in land adjacent to the proposed construction of a new road interchange, sought declaratory and injunctive relief based on an asserted contravention of s 16(1) of the Public Works Committee Act 1914 (Tas). That section stipulated conditions precedent to the commencement of a public work proposed to be undertaken by a Tasmanian Government department or State authority. Mr Casimaty claimed that the work being undertaken was different from the work referred to and reported on by the committee. The proceedings were struck out at first instance but reinstated on appeal to the Full Court. 163 The High Court allowed the further appeal to it, ruling that the conditions precedent in s 16(1) to the commencement of a public work proposed to be undertaken by a Tasmanian Government department or State authority did not create an obligation enforceable by a court. Their purpose was to strengthen political accountability and, ‘[f]rom beginning to end’, the application of s 16 to a public work was within the control of the two Houses of the Tasmanian Parliament.167 164 Edelman J addressed the wider question of whether any adjudication at all concerning a breach of s 16(1) was within the exclusive cognisance of the Tasmanian Parliament. This involved the ‘centuries-old puzzle of the extent of the exclusive cognisance of Parliament’.168 Edelman J used that expression to describe a principle that ‘wholly encompasses, and extends beyond, Art 9 of the Bill of Rights’.169 165 In discussing Art 9, Edelman J referred to the eighth declaration in the Bill of Rights, namely, that King James II had endeavoured to subvert the laws and 164 Prebble [1995] 1 AC 321 at 334. See also Rowley [2000] 1 Qd R 207 at 224. 165 Prebble [1995] 1 AC 321 at 334, 336. 166 (2024) 98 ALJR 1139; [2024] HCA 31. 167 (2024) 98 ALJR 1139; [2024] HCA 31 at [38] (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech- Jones JJ). 168 (2024) 98 ALJR 1139; [2024] HCA 31 at [48]-[49]. 169 (2024) 98 ALJR 1139; [2024] HCA 31 at [51]. -- 46 of 65 -- [2026] SASCA 65 B Doyle AJA 43 liberties of the Kingdom in various ways including by prosecutions of matters and causes cognisable only in parliament.170 He observed that Art 9 has been recognised as effectively operating as a duty on courts not to consider anything that would impeach or question any speech, debate or parliamentary proceeding. For that reason it was not capable of waiver.171 166 Having canvassed a range of authorities, Edelman J said that the ‘best presently existing test’ for whether the freedom of speech and debates or proceedings in parliament would be ‘impeached or questioned’ by a legal proceeding is a functional and pragmatic test, informed by the purposes served by the privilege. As had been said in a Canadian case, the privilege inheres to the nature and function of legislative assemblies as a separate branch of government and its reach extends only so far as is necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.172 167 Edelman J went on:173 As to individual Members of Parliament, the function of Art 9, including the privilege contained in it, includes protecting Members of Parliament "not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the crown".174 Beyond protection of the individual Members of Parliament, Art 9 also ensures the efficient and effective discharge of parliamentary business, without a real or substantial prospect of a chilling effect arising from, or by, legal challenge. Therefore, courts "will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions".175 In this way, the privileges of Parliament "are vouchsafed so that Parliament can fulfil its key function in our system of democratic government".176 In this respect, Art 9 may reflect the principle which determines the limit of the common law powers of the Houses of Parliament, being those powers that "are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute".177 As Herron CJ explained this common law constitutional principle, it arises where a House of Parliament considers that a power is "necessary to its existence or to the orderly exercise of its important legislative functions".178 These "requirements of necessity" limit the common law powers of the Houses of Parliament in a manner "measured by the need to protect the high standing of Parliament and to ensure that it may discharge, with 170 (2024) 98 ALJR 1139; [2024] HCA 31 at [68]. 171 (2024) 98 ALJR 1139; [2024] HCA 31 at [71]-[72]. 172 (2024) 98 ALJR 1139; [2024] HCA 31 at [77], referring to Chagnon v Syndicat de la fonction publique et parapublique du Quebec [2018] 2 SCR 687 at [27]. 173 (2024) 98 ALJR 1139; [2024] HCA 31 at [78]-[83]. 174 Blackstone, Commentaries on the Laws of England (1765), bk 1, ch 2, p 159. 175 Prebble v Television New Zealand [1995] 1 AC 321 at 332. 176 Pickin v British Railways Board [1974] AC 765 at 798. 177 Kielley v Carson (1843) 4 Moore PC 63 at 88 [13 ER 225 at 234]. 178 Armstrong v Budd (1969) 71 SR (NSW) 386 at 395. -- 47 of 65 -- [2026] SASCA 65 B Doyle AJA 44 the confidence of the community and the members in each other, the great responsibilities which it bears".179 On the other hand, the purpose of Art 9 does not require the protection of Parliament and its Members at any price. For instance, separate from considerations of the boundary between courts and Parliament, public or media discussion and commentary upon proceedings in Parliament might occur in a place outside Parliament and might be in critical terms. But, in that context, the intention of Art 9 was never to "have effect so as to stifle the freedom of all to comment on what is said in Parliament, even though such comment may influence Members in what they say".180 The functional and pragmatic approach to balancing these competing considerations invites courts to ask whether consideration of, or admission of evidence of, parliamentary proceedings could give rise to a real or substantial prospect of a chilling effect upon the functioning of Parliament and its Members: "[i]f what is involved in a tender of evidence ... is simply not capable of being contentious, it is difficult to see how the right of free speech could be affected".181 In that respect, there is merit in the focus, in the authorities mentioned above,[…] upon whether anything said in any proceedings in Parliament is relevant in the legal proceeding only for the uncontentious fact of what was said. But attention should remain focused upon whether any use of speech, debates or proceedings in Parliament could give rise to a real or substantial prospect of chilling or restraining the free engagement of those involved in the Parliament and its processes. … In the application of Art 9 in this functional way, Art 9 should not be seen as only a rule of evidence. Article 9 should extend also to the court receiving, or considering, submissions that would give rise to a real or substantial prospect of a chilling effect upon the functioning of Parliament and its Members.182 There will be cases where the relevance of proceedings in Parliament is not clear until after the admission of the proposed evidence or after receipt of submissions. In such cases, the court complies with Art 9 "not by refusing to admit evidence of what was said in Parliament, but by refusing to allow the substance of what was said in Parliament to be the subject of any submission or inference"183 where receipt, or consideration, of the submission or inference would give rise to a real or substantial prospect of chilling or restraining the free engagement of those involved in the processes of Parliament. 168 Whilst his Honour’s approach requires a consideration of whether the putative infringement of privilege would have a ‘chilling effect’, the focus of that inquiry was upon the real and substantial prospect that the functioning of parliament and its members and the ‘free engagement’ of those involved in the processes of parliament would be affected by legal challenge or by the use of evidence about parliamentary proceedings. 169 There was in Casimaty no occasion to consider or endorse a broader proposition that compelled disclosure in legal proceedings of material prepared 179 Armstrong v Budd (1969) 71 SR (NSW) 386 at 397. 180 Pepper (Inspector of Taxes) v Hart [1993] AC 593 at 638. But see Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435, rejected in Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1 at 4-5. 181 Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 231. 182 Cornwall v Rowan (2004) 90 SASR 269 at [395], quoting Rann v Olsen (2000) 76 SASR 450 at [204]. 183 Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1 at 5. -- 48 of 65 -- [2026] SASCA 65 B Doyle AJA 45 with a view to participating in parliamentary proceedings might infringe parliamentary privilege whether or not the material can be held against a participant in parliamentary proceedings in those proceedings. Nor was there occasion to consider whether provision of access to such material pursuant to a statutory regime, as distinct from at the compulsion of a court, tribunal or similar body, would involve an infringement of parliamentary privilege. However, Edelman J did emphasise, as is generally accepted, that public discussion and commentary about things said and done in parliament is not within the purview of Art 9. 170 The question that arose in Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales184 (‘President of the Legislative Council of New South Wales’) was whether, in the context of an application by the Director of Public Prosecutions for recusal of a judge on the ground of apprehended bias, parliamentary privilege impeded the tender of a submission made by a judge to a parliamentary committee. The judge’s submission had received some publicity and was critical of the Director. The Court of Appeal held that the tender of the judge’s submission and reliance upon it did not without more contravene Art 9 of the Bill of Rights,185 but the Court was at pains to say that this did not mean that any and all submissions which might be made in support of a recusal application consequent upon the judge’s submission would not infringe Art 9.186 The Court recognised a distinction between a submission which pointed to no more than the fact a judge has made a submission in a particular form, and submissions that went further and involved positive contentions or invited inferences about the actual motivation of the judge in making the submission.187 171 The Court ultimately accepted that Art 9 did not prohibit the tender of privileged materials solely for the purpose of establishing what was said in, or submitted to, parliament.188 An issue that divided the parties who took that position was whether this was by reason of the proper construction of Art 9 or by reason of the application of that section being cut back on the basis of the principle in Kable.189 The Court recognised that any observation on that issue would, by reason of the stage of the litigation at which a claim for declaratory relief had arisen, be obiter. However, the Court considered that expressing some views on the matter might assist in refining arguments in a future case.190 172 The Court discussed some of the textual difficulties that beset Art 9 before making some observations about its immediate historical context, observing that 184 [2026] NSWCA 20. 185 [2026] NSWCA 20 at [6] (Leeming JA, Stern JA and Griffiths AJA). 186 [2026] NSWCA 20 at [10] (Leeming JA, Stern JA and Griffiths AJA). 187 [2026] NSWCA 20 at [10] (Leeming JA, Stern JA and Griffiths AJA). 188 [2026] NSWCA 20 at [71] (Leeming JA, Stern JA and Griffiths AJA). 189 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. 190 [2026] NSWCA 20 at [81] (Leeming JA, Stern JA and Griffiths AJA). The Court noted that ‘not all that is said in jurisdictions where s 16 of the Parliamentary Privileges Act or its equivalent necessarily carries through to the position in New South Wales’: [2026] NSWCA 20 at [78]. -- 49 of 65 -- [2026] SASCA 65 B Doyle AJA 46 many of the historical concerns that informed the section were far removed from the concerns to which Art 9 is directed in New South Wales in the 21st century.191 173 The Court considered that on any view Art 9 as currently understood went ‘much further than the mischief to which it was directed in its preamble’ and that this was because it was to be construed quite differently from a modern statute. A body of law had built up around Art 9, including not only decisions of courts, and had been adopted in the Australian context.192 Whilst it was a provision of high constitutional importance, not to be narrowly construed, that did not mean its scope was unlimited.193 174 The Court’s preference was to see Art 9 as having the flexibility itself to adapt to its constitutional environment, rather than as having a natural reach that was required to be cut back by the Kable doctrine.194 This was consistent, in the Court’s view, with seeing Art 9 as itself a kind of constitutional rule or principle that was almost a ‘part of the common law’.195 The question of Art 9’s reach and the constitutional question as to its valid reach could not be kept in watertight compartments.196 175 Influential in reaching that preference was the Court’s recognition of the nuanced operation of Art 9 in cases such as Rann v Olsen. In particular, their Honours saw a kind of analogy between a proposed limited use of the judge’s submission to found a conclusion as to the state of mind of the fair minded lay observer for the purposes of apprehended bias, and the way in which Doyle CJ suggested reliance might be placed upon what Mr Rann in fact said in parliament as relevant to Mr Olsen’s state of mind.197 On that basis, their Honours’ tentative view was that reliance for the purposes of providing an evidential foundation for what the fair minded lay observer might conclude would not, as a matter of the construction of Art 9, amount to impeaching or questioning the freedom of speech associated with the making of a submission to a parliamentary committee.198 Issues concerning Art 9 and parliamentary privilege 176 This survey of the authorities reveals that different views have been expressed over time, and in different jurisdictions, about the scope of Art 9 and parliamentary privilege more broadly. 177 For instance, whereas in R v Murphy, Hunt J considered that the use in court of parliamentary statements with a view to demonstrating an inconsistency with statements made in court so as to discredit the maker of the statement, did not 191 [2026] NSWCA 20 at [87] (Leeming JA, Stern JA and Griffiths AJA). 192 [2026] NSWCA 20 at [88] (Leeming JA, Stern JA and Griffiths AJA). 193 [2026] NSWCA 20 at [89] (Leeming JA, Stern JA and Griffiths AJA). 194 [2026] NSWCA 20 at [94] (Leeming JA, Stern JA and Griffiths AJA). 195 [2026] NSWCA 20 at [95] (Leeming JA, Stern JA and Griffiths AJA). 196 [2026] NSWCA 20 at [99] (Leeming JA, Stern JA and Griffiths AJA). 197 [2026] NSWCA 20 at [100], [104] (Leeming JA, Stern JA and Griffiths AJA). 198 [2026] NSWCA 20 at [105] (Leeming JA, Stern JA and Griffiths AJA). -- 50 of 65 -- [2026] SASCA 65 B Doyle AJA 47 involve ‘impeachment’, the Privy Council in Prebble considered that was too narrow an approach. 178 And whereas in Wright v Lewis, King CJ considered that the use of parliamentary statements against the maker of a statement in proceedings commenced by the maker did not amount to relevant impeachment, again, the Privy Council in Prebble emphasised the institutional nature of Art 9 and the wider principle of mutual non-interference. Whilst it has not been formally overruled in this State, the position of the Privy Council has generally been favoured over the approach of King CJ. Although the Privy Council’s capacity to declare the law of Australia had ceased by the time Prebble was decided,199 members of the High Court have referred to Prebble, in generally approving terms, in a number of cases.200 179 Whilst the limits upon privilege proposed in R v Murphy and Wright v Lewis have been disfavoured, a nuanced approach has nevertheless been adopted in the subsequent authorities. Reliance upon parliamentary statements has been countenanced even though it may be to the forensic or indirect legal detriment of the maker of the statement where it is possible to do so without any examination of the honesty, motivation or appropriateness of the parliamentary statement per se, and thus where the court has been able to avoid trenching upon parliament’s exclusive right to investigate, assess or impose sanctions in respect of things said and done in parliament. That is to say, limits have been recognised in a way that broadly accords with the purpose ascribed to Art 9 as it applies in New South Wales by Kirby J in Egan v Willis,201 namely:202 … to defend, relevantly against legal inquiry or sanction in a court, the freedoms belonging to a House of Parliament. Those freedoms include its right to conduct its affairs, answerable, on matters of truth, motive, intention or good faith, only to the House concerned and through it to the electors. 180 So, for instance, in Rann v Olsen, it was accepted that a parliamentary statement may be relied upon as providing a factual basis for the consideration of a defence of qualified privilege on the part of a person responding to a parliamentary statement. In President of the Legislative Council of New South Wales, reliance upon a statement made by a person to a parliamentary committee was considered permissible if it was merely to establish the facts by reference to which a fair minded lay observer might entertain a doubt about the impartiality of that person for the purposes of judicial proceedings. A contention of actual bias, as distinct from apprehended bias, would no doubt have been seen differently. 199 Viro v The Queen (1978) 141 CLR 88, Cook v Cook (1986) 162 CLR 376. 200 See, eg, the observations of Brennan CJ who with Gummow and Hayne JJ refused special leave to appeal in Arena v Nader [1997] HCA Trans 321, Egan v Willis (1998) 195 CLR 424 at [133] (Kirby J), Carne at [106] (Gordon and Edelman JJ), Casimaty at [78] (Edelman J). 201 (1998) 195 CLR 424. 202 (1998) 195 CLR 424 at [133]. -- 51 of 65 -- [2026] SASCA 65 B Doyle AJA 48 181 Turning to the issue of importance for this appeal, whereas in Rowley v O’Chee, a focus upon what was said to be a historically prevalent usage of the word ‘impeached’ assisted in concluding that compulsory disclosure that might have a chilling effect on sources of parliamentary information engaged s 16 of the Privileges Act, in President of the Legislative Council of Western Australia, a focus upon the historical mischief that informed Art 9 led Hall J to express reservations about aspects of the reasoning in Rowley v O’Chee. 182 It will ultimately be necessary to consider and resolve the rival arguments concerning the proper interpretation of cl 17(c) of Schedule 1 to the FOI Act by reference to its text, context and purpose.203 However, in doing so, it is difficult to avoid consideration of the extent to which, apart from the FOI Act, parliamentary privilege might be infringed by the compulsory provision of materials prepared for the purposes of parliamentary proceedings in a forum that is not a court or tribunal with adjudicative or investigative functions. That issue may inform the correct interpretive approach to cl 17(c). The appellant, contending that neither Art 9 nor any wider dimension of parliamentary privilege operates as a bar to compulsion (or that, if Rowley v O’Chee is correct, parliamentary privilege may only operate as a bar to compulsion by a court or in an analogous ‘place’), submits that the approach of the Tribunal substantially expands the operation of the privilege. The appellant submits that is an unlikely intention to attribute to the legislature when passing legislation designed to facilitate transparency in government, particularly where s 38 of the Constitution Act does not envisage an expansion in the scope of parliamentary privilege. The respondent, by contrast, starts from the proposition that disclosure compelled by a court or by the determination of a body exercising official functions of documents prepared for use in parliamentary proceedings would involve a contravention of Art 9 and that a construction of cl 17(c) such as that contended for by the appellant under its first ground of appeal would cut away at a fundamental constitutional doctrine. Applying the principle of legality, such a construction should only be accepted if the legislature’s intention to abrogate or abridge the ordinary operation of parliamentary privilege is express or unmistakeable.204 183 In my view, because it concerned production in curial proceedings of material that was related to parliamentary proceedings to which s 16 of the Privileges Act applied, the approach of McPherson JA in Rowley v O’Chee does not directly govern the question whether parliamentary privilege precludes coercive disclosure – in a forum that is not a court or tribunal with adjudicative or investigative functions – of materials prepared to facilitate participation in parliamentary proceedings in this State. That said, and with respect, I share the reservations expressed by Hall J about aspects of the reasoning in Rowley v O’Chee. 203 SZTAL v Miniter for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). 204 See, eg, Hammond v Commonwealth (1982) 152 CLR 188 at 200 (Murphy J). -- 52 of 65 -- [2026] SASCA 65 B Doyle AJA 49 184 These reservations do not depend upon a view that Wright v Lewis (or R v Murphy) remains good law, and that Rowley v O’Chee wrongly proceeded without regard to the approach taken by King CJ in that case. Indeed, I consider that the approaches in R v Murphy and Wright v Lewis are unlikely to be followed if the issues presented by them were to arise in a future case in this Court.205 The essential difficulty with the reasoning in R v Murphy was that whatever the stated purpose of the person proposing to rely on the parliamentary statement, a court which permits cross-examination as to credit with reference to previous statements in parliamentary proceedings might in fact find itself entertaining a conclusion that the parliamentary statement was dishonest or otherwise inappropriate. The essential difficulty with the reasoning in Wright v Lewis was that it was not for the maker of the parliamentary statement by their conduct to waive objection to an examination of the true import of their statement. 185 To disfavour the approach in those cases is not to endorse the view that court- ordered or statutorily authorised disclosure of documents which might facilitate an examination of parliamentary conduct necessarily infringes privilege. Indeed, the decisions in Mees, Rann v Olsen and President of the Legislative Council of New South Wales demonstrate that, even where the question under consideration is the use in court of materials evidencing things said and done in parliament, a nuanced approach may be required. The observations of Edelman J in Casimaty are consistent with that. 186 Once it is accepted that some uses of evidence of things said and done in parliamentary proceedings may be countenanced in a court notwithstanding that in an indirect sense there may be detriment to the maker of the statement, the argument that Art 9 is necessarily infringed by the mere provision of access to material that has a close connection with parliamentary proceedings is one that requires a clear justification. Does the efficient and effective functioning of the parliament require that preparatory materials be kept out of the public domain, even where the giving of access to the materials forms no part of any curial, disciplinary or investigative process in which its use is ‘on the cards’? 187 Rowley v O’Chee provides support for the proposition that compelled disclosure of material prepared or received on an otherwise confidential basis for the purpose of parliamentary proceedings may impeach parliamentary speech or debate, but this was based at least in part on what was said to be a then-current meaning of ‘impeach’ in 1688 and, importantly, there were important matters of context which provide a basis for distinguishing the actual decision. 188 As to the approach taken to the meaning of ‘impeach’, the fact that the broader meaning adopted by McPherson JA was a current meaning in 1688 is not conclusive of whether that was the meaning of the expression in Art 9 having regard to its text, context and purpose. The historical events which appear to have 205 See, eg, Barilaro v Shanks-Markovina (No 2) (2021) 287 FCR 597 at [59] (Rares J), cf. Hanna v Sibbons (2010) 108 SASR 182 at [61], [68] (Vanstone J). -- 53 of 65 -- [2026] SASCA 65 B Doyle AJA 50 been the impetus for Art 9 tend to suggest the expression may have been used in the sense in which it was used in the Protestation, where reference was made to ‘freedom from all impeachment, imprisonment and molestation (other than by censure of the House itself)’. Prior to the decision in Rowley v O’Chee, the injunction that freedom of speech and debate not be impeached appears to have been understood as facilitating unrestrained participation by those involved in parliamentary proceedings without fear of that participation being held against them, rather than as removing any disincentives that might operate upon those who might bring matters to the attention of those conducting the business of parliament. It may be that removing any such disincentives would see more information provided and in turn enhance the quality of its deliberations or proceedings. But it is a different question whether parliamentary privilege is infringed by compulsory disclosure according to that rationale. 189 Turning back to the context in which Rowley v O’Chee was decided, the first matter to emphasise, as McPherson JA himself stressed, is that the effect of s 16(2) of the Privileges Act was to treat acts done for purposes of or incidental to the transaction of business in the House as themselves proceedings in Parliament. His Honour considered the act of retaining unsolicited documents received by a Senator for the purpose of informing his conduct in Parliament as a proceeding of the Parliament. The question then became whether production in legal proceedings of such documents would impeach that activity (that is, retaining and considering such documents in connection with Parliamentary business). Even if one accepts that that activity might be hampered or impeded by compulsory disclosure because persons wishing confidentially to supply material to Parliamentarians might ‘dry up’, and that this kind of effect is within the notion of ‘impeach’, the analysis is necessarily different. It is different because, in South Australia, Art 9 applies without the expanded concept of proceedings in parliament that applies in s 16 of the Privileges Act because what is under contemplation is not persons deciding whether to volunteer information to parliament (including ‘whistleblowers’), but members of the public service charged with assisting those who may be required to answer questions in a parliamentary committee. In that context, the appellant submitted that (1) such are the obligations of public servants, it should not lightly be assumed that the mere prospect of disclosure would deter them from including relevant material in any briefing materials;206 and (2) any endeavour to withhold relevant materials may prove ineffective given the parliament’s powers of inquiry.207 Without deciding that those considerations themselves dictate a rejection of the Tribunal’s approach, I agree that they distance the present case from any ratio in Rowley v O’Chee. 190 Secondly, Rowley v O’Chee involved production in legal proceedings. As Hall J said in President of the Legislative Council of Western Australia, a clearer 206 The appellant pointed to provisions of the Public Sector Act 2009 (SA) and the Code of Ethics for the South Australian public sector published under reg 8 of the Public Sector Regulations 2010 (SA). 207 Some aspects of the appellant’s experience of parliamentary practice in this respect were addressed in an affidavit affirmed by the appellant on 2 December 2024. See, generally, Egan v Willis (1987) 195 CLR 424. -- 54 of 65 -- [2026] SASCA 65 B Doyle AJA 51 delineation between production and use may be seen in curial proceedings than in the case of compulsory disclosure to an investigative body.208 It nevertheless remains the case that discovery and production in legal proceedings is, by hypothesis, in aid of possible use of such documents in those legal proceedings. It is an abuse of a court’s processes to seek access to documents for uses other than in the legal proceedings, and, as a corollary, a contempt of court may be committed if the documents are deployed for a collateral purpose.209 It does not follow that a document required to be produced by way of discovery in a legal proceeding will in fact be able to be used for any or all purposes, but that it might be so used is the premise for the giving and obtaining of discovery. Accordingly, because, as Gray J observed in Mees, Art 9 is construed now as primarily constituting a constraint on the judicial arm of government, the decision in Rowley v O’Chee cannot be automatically translated to the context of public disclosure. 191 Indeed, because, as will be seen, access under the FOI Act turns upon posited disclosure by the executive and to the public, it might be thought surprising that this would infringe any broader principle of non-interference operating between courts (or the executive), on the one hand, and the parliament, on the other, or any broader principle of exclusive cognisance. The FOI Act 192 The FOI Act has as one of its stated objects, consistently with the ‘principle of the Executive Government’s responsibility to Parliament’, the promotion of openness in government and accountability of Ministers of the Crown and other government agencies.210 The means by which this is to be achieved is by ensuring that information concerning the operations of government is readily available to members of the public and to Members of Parliament.211 193 The Act confers on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy.212 It is the intention of the Parliament that the Act should be interpreted and applied so as to further the objects of the Act.213 194 Consistent with its focus on the Executive Government, the FOI Act does not apply to the Parliament, an officer of the Parliament, or a parliamentary 208 With the result that compelled production to an investigative administrative body was practically indistinguishable from use. 209 Hearne v Street (2008) 235 CLR 125. 210 FOI Act, s 3(1)(a). 211 FOI Act, s 3(2)(a). 212 FOI Act, s 3(2)(b). 213 FOI Act, s 3A(1)(a). -- 55 of 65 -- [2026] SASCA 65 B Doyle AJA 52 committee,214 and nor is a court or a judicial officer to be regarded as an agency or part of an agency.215 195 The central provision is s 12. It provides that a person has a legally enforceable right to be given access to an agency’s documents in accordance with the Act. Section 13 describes how applications for access may be made, and ss 14 and 14A address by whom and within what time frame they are to be dealt with. Section 20(1)(a) provides that an agency may refuse access to an exempt document. 196 Under s 22(1), access may be given to a document in a variety of ways, including by giving the person a copy. The Act requires determinations to be notified to the applicant.216 A person who is aggrieved by the determination is entitled to a review of the determination in the ‘internal review’ phase.217 A person who remains aggrieved following an internal review may apply to the Ombudsman for an external review.218 A person who is aggrieved by a determination following internal review, or following the Ombudsman’s external review, may apply for a review under s 34 of the SACAT Act. An agency that is aggrieved by a determination of the Ombudsman may do the same, but only on a question of law and with the permission of SACAT.219 In any proceedings concerning a determination made under the Act by an agency, the burden of establishing that the determination is justified lies on the agency.220 The FOI Act confers protections for the consequences of disclosure where determinations are made under the Act with the honest belief they are required.221 197 Schedule 1 sets out the categories of documents that are exempt from disclosure. Each exemption is to be interpreted according to the words used, bearing in mind the legislative objects, but without a ‘leaning’ one way or the other.222 198 Clause 17 of the Schedule provides: 17—Document subject to contempt etc A document is an exempt document if it contains matter the public disclosure of which would, but for any immunity of the Crown— (a) constitute a contempt of court; or 214 FOI Act, s 5A. 215 FOI Act, s 6. 216 FOI Act, s 23. 217 FOI Act, s 29. 218 FOI Act, s 39. 219 FOI Act, s 40. 220 FOI Act, s 48. 221 FOI Act, ss 50 and 51. 222 Patrick v The State of South Australia [2025] SASCA 108 at [34]-[35], [63] (Livesey P, Bleby and Stanley JJA), Attorney-General (SA) v Seven Network (Operations) Ltd (2019) 132 SASR 469 at [67]- [68] (Tate, Kyrou and Niall AJJ). -- 56 of 65 -- [2026] SASCA 65 B Doyle AJA 53 (b) contravene any order or direction of a person or body having power to receive evidence on oath; or (c) infringe the privilege of Parliament. 199 Many of the other clauses within the Schedule identify exempt documents as being documents that contain matter that if disclosed would have a particular consequence. So, for instance, cl 7(1)(a) provides that a document is exempt if it contains matter the disclosure of which would disclose trade secrets of any agency or any other person. Others define exempt documents by reference to the nature of the information they contain (without positing any particular consequence of its disclosure). Clause 17 is unique in positing ‘public disclosure’.223 200 Writing about this feature of the equivalent provision in the Commonwealth legislation upon its introduction, Bayne expressed the view that the words ‘public disclosure’:\224 … contrast with the words ‘disclosure under this Act’ which are employed in most of the other exemption sections. The point of the different language in s 46 would appear to be that whether or not FOI Act disclosure of a document would have any of the effects described in the section must be gauged on the basis that the disclosure by the agency or Minister has been made to the public generally rather than to a FOI applicant. (FOI Act disclosure is of course always to a particular applicant.) For example, there could be cases where disclosure to a particular applicant would not constitute a contempt of court. Whether such disclosure would be a contempt of court must however be gauged by supposing that the agency or Minister has disclosed the document not to the FOI Act applicant alone, or to any other FOI Act applicant alone, but to the public generally. This will have the effect of broadening considerably the scope of the exemptions in s 46. 201 Some indication of the rationale for the different ‘public disclosure’ test may be gained from considering the presently non-contentious paragraphs of cl 17, which concern (a) contempt of court, and (b) contravention of any order or direction of a person or body having power to receive evidence on oath. 202 Focusing on cl 17(a), it would be a contempt of court to make public disclosure of a document containing matter that is the subject of a suppression order made by a State court.225 A suppression order forbids only ‘publication’ of particular material. It is not concerned with private communications.226 A contempt may also be committed by the publication of material that has a tendency to interfere with a particular proceeding before a court (‘sub judice contempt’). 223 That said, by reason that the FOI Act does not invite attention to the purpose of the applicant for access or the use that they propose to make of the information, disclosure under the other provisions has come to be understood as disclosure ‘to the world’: see, eg, Patrick v The State of South Australia [2025] SASCA 108 at [33] (Livesey P, Bleby and Stanley JJA). 224 Bayne, ‘Exemptions Under the Freedom of Information Act 1982’ (1983) 14 Federal Law Review 67 at 127. 225 Evidence Act 1929 (SA), ss 68, 69A and 70. 226 Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133 at [105] (Kourakis CJ), Channel Nine SA Pty Ltd v Police [2014] SASC 69 at [35] (Blue J). -- 57 of 65 -- [2026] SASCA 65 B Doyle AJA 54 203 Of course, confidentiality or non-disclosure orders made by a court may preclude a government agency from disseminating material even to a limited audience. In such a case, it would also follow that public disclosure of the material would amount to a contempt. Clause 17(b) appears to cover similar territory but in respect of investigative or administrative bodies rather than courts. 204 Clauses 17(a) and (b) therefore recognise that courts and other bodies hearing evidence and deciding cases may, to preserve the integrity of their processes, require that material not be disseminated at all, or at least not publicly disclosed. In either case, material of that kind would, but for the immunity conferred by the Act, amount to a contempt or contravention of the relevant direction or order, if publicly disclosed. 205 Against this background, the appellant contends that the work which cl 17(c) should be understood as designed to achieve is to make documents exempt where they contain material that, by reason of a direction by the Parliament or house of Parliament that material not be disclosed, cannot be publicly disclosed without infringing the privilege of the Parliament. The premature publication of evidence taken in camera or that has been ordered not to be published is a contempt of parliament.227 The appellant pointed, by way of illustration, to Order 398 of the Standing Orders of the Legislative Council, which is contained in Chapter XXVI of those orders (‘Select Committees’). It provides: 398. The Evidence taken by any Committee and Documents presented to such Committee, which have not been reported to the Council, shall not be disclosed or published by any Member of such Committee or by any other person, without the permission of the Council. See also (Giving of Evidence) Order No 444; and (after Report) 453. 206 Accordingly, submits the appellant, cl 17(c) addresses ‘contempt of Parliament’228 in a way that is analogous to the subject matter of cll 17(a) and (b). As the appellant submitted, this was the operation of the provision posited by Bayne in his analysis of the exemption provisions of the Commonwealth legislation.229 It also provides work for the words in the chapeau ‘but for any immunity of the Crown’ in the context of cl 17(c). 207 The respondent contends that that appellant’s submission relies upon a principle of construction (the ejusdem generis principle) that has been criticised as unhelpful and of only limited use. In my view, however, even if the ejusdem generis principle does not supply a limiting genus for cl 17 (effectively, contempts of the bodies or institutions there listed), the context supplied by cll 17(a) and (b) suggests an application of cl 17(c) that stands apart from Art 9. On that basis, there 227 Selway, The Constitution of South Australia (1997) at [4.9.1.4]. 228 One text writer uses this expression as a convenient label for the equivalent provision of the Commonwealth legislation: Smark, Freedom of Information and Privacy in Australia (2024, 3rd ed) at [8.121]. 229 Bayne, ‘Exemptions Under the Freedom of Information Act 1982’ (1983) 14 Federal Law Review 67 at 130. -- 58 of 65 -- [2026] SASCA 65 B Doyle AJA 55 is no need, based on a presumption against redundancy at least, to construe cl 17(c) so that it accommodates Art 9. 208 Against this background, I turn to consider the appellant’s contention that neither the public disclosure posited by cl 17(c), nor the granting of access under the FOI Act: • occurs in a ‘place out of Parliament’ within the meaning of Art 9; or • results in freedom of speech or debates or parliamentary proceedings being ‘impeached or questioned’ in such a place. 209 I consider that the expressions ‘court or place out of Parliament’ and ‘impeached or questioned’ exert interpretive influence on each other, or, put another way, should be construed as a composite concept informed by history, authority and constitutional context. However, it is convenient to start with ‘place’. Is disclosure or access under the FOI Act in a ‘place out of Parliament’? 210 Whilst the expression ‘place out of Parliament’ may in some cases have been assumed to have a broad and literal meaning,230 the prevailing approach has been to construe that expression as part of the wider phrase ‘court or place out of Parliament’ and to treat ‘place’ as subject to limits, albeit yet to be exhaustively defined. The expression ‘place out of Parliament’ has been interpreted to mean tribunals, commissions or executive inquiries that determine liability or make findings as to character or conduct.231 211 Professor Campbell expressed the view that whilst the history and object of Art 9 would likely show that Art 9 was concerned to protect against civil and criminal liabilities, courts may today be prepared to read Art 9 as applying to or in any body which has power to impose sanctions, including disciplinary sanctions, albeit not agencies of the executive branch which exercise non-coercive powers.232 212 The respondent accepts that the expression ‘place out of Parliament’ does not simply refer to anything outside parliament in a geographic sense. It proposes, as a general definition, a ‘body performing official functions’. The appellant submits that this is too broad. 230 Pepper (Inspector of Taxes) v Hart [1993] AC 593 at 638 (Lord Browne-Wilkinson), but cf. Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] 1 WLR 2825; [2007] UKPC 48 at [10] (Lord Mance). See also Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435 at 439 (Needham J). 231 Re Royal Commission into Certain Crown Leaseholds [1956] St R Qd 225 at 229 (Townley J as Commissioner), Mees at [77] (Gray J), President of the Legislative Council of Western Australia [at [137] (Hall J). See also, United Kingdom, Parliament, Joint Committee on Parliamentary Privilege, First Report (HL43-1, HC 214-1, Session 1998/1999, [91]. 232 Campbell, Parliamentary Privilege (2003), p 21. -- 59 of 65 -- [2026] SASCA 65 B Doyle AJA 56 213 Recalling the extent to which courts were then seen as an extension of the monarch and the concerns that led to the formulation of Art 9, there is both historical and textual support for an approach which whilst allowing that ‘place’ extends to bodies comprising executive agencies and inquiries, contemplates bodies which, if they do not themselves impose adverse consequences, perform a deliberative or fact-finding function of a meaningful kind. 214 In the Tribunal’s First Reasons, the President considered that to limit the application of Art 9 to places that can compel evidence was consistent with the constitutional purpose of the privilege, and that to construe ‘place’ as meaning places with court-like characteristics was consistent with the historical context. On that basis, it would follow that disclosure of documents by an FOI officer would not of itself constitute an infringement of parliamentary privilege because the disclosure was not to a court or other place within the meaning of Art 9.233 However, the President went on to consider whether cl 17(c) had been drafted so as to modify the operation of the privilege for the purpose of the exemption. That provision posits ‘public disclosure’, which did not seem consistent with disclosure in a relevant ‘place’. The President then posited two possible constructions, before preferring the second:234 One is that, contrary to the conclusion above, “other place” must be taken to mean “any other place”, which would allow it to operate alongside “public disclosure” such that any hypothetical public disclosure comes within “other place”. Another construction is that “public disclosure” replaces “court or other place” for the purposes of determining whether the exemption applies. This has the effect that the FOI officer is required to determine whether the documents attract the privilege and whether their public disclosure amounts to an impeaching or questioning of them. If the answer to both questions is yes, then the documents are exempt. With some hesitation, I consider that the second approach is the appropriate one. By the use of the words “public disclosure” (in contrast to “disclosure”, which is the term used in other exemptions), the Parliament has conveyed its intention to create as the enlivening circumstance, a hypothetical public disclosure of the document. Having posited that, the FOI officer is equipped to consider whether such a disclosure would impair or undermine the freedom of debate in the Parliament. 215 This approach was developed, or perhaps refined, in the Tribunal’s Second Reasons. In those reasons, after referring first to Hall J’s approach in President of the Legislative Council of Western Australia the President described Professor Campbell’s view as one which, while entitled to weight, was not addressed to parliamentary privilege as an exemption to documents pursuant to a statutory access to documents regime.235 233 First Reasons [81]-[83]. 234 First Reasons [87]-[89]. 235 Second Reasons [38]. -- 60 of 65 -- [2026] SASCA 65 B Doyle AJA 57 216 Noting that the FOI Act does not compel disclosure of non-exempt documents, but instead grants a right of access, and that this does not occur at any particular ‘place’, the President observed that the FOI Act:236 … creates a corresponding obligation on the part of any agency to make a determination as to whether a requested document is exempt. There are consequences for agencies that do not fulfil their functions Clause 17(c) of Schedule 1 of the FOI Act carves out from the Department’s obligation to disclose documents where to do so would infringe the privilege. 217 The President then concluded:237 I consider that the FOI Act creates a statutory circumstance by which the executive arm of Government, in the fulfilment of its statutory obligation to administer the freedom of information laws, is endowed with the status of ‘other place’. 218 The respondent does not embrace this aspect of the Tribunal’s reasoning. Rather, it submits that: In making a determination under the Act, an accredited FOI officer or the Ombudsman is required to apply exemptions according to law. The effect of a determination that a document does not fall within an exemption is that it must be disclosed. The determination has legal consequences. Subject to review, a determination to release results in an agency falling under a legal duty to disclose the legal duty to disclose the document. It is the authoritative nature of a determination made under the Act which means that the impeaching occurs ‘out of parliament’. 219 The subtle difference between the two approaches is this: the respondent contends that a body that performs official functions is a ‘place’, and that an FOI officer or Ombudsman acting under the FOI Act, when making a determination as to whether a document is exempt, performs a relevant function which gives it the status of a ‘body’. There is no statutory extension of the natural field of operation of Art 9. Rather, the FOI Act simply creates a regime which sees decisions made in a ‘place’ within the pre-existing meaning of Art 9. The Tribunal’s approach, by contrast, posits that what occurs both by way of access under the FOI Act, and by way of the public disclosure posited by cl 17(c), would not occur in a ‘place’ within the meaning of Art 9, but the FOI Act requires that it be so treated. 220 One basis for the Tribunal’s approach may be the view that, if cl 17(c) was not understood as modifying the field of operation of Art 9, cl 17(c) would have no meaningful content, because it would never intersect with Art 9. In my respectful view, for the reasons given earlier, that is not the case. As the authorities show, Art 9 is not a complete statement of parliamentary privilege. Apart from Art 9, it is open to a parliamentary body to direct that its proceedings, or documents relevant to its proceedings, not be published. Clause 17(c) would apply where the public disclosure of a document would infringe a standing order such as Order 398. 236 Second Reasons [40]. 237 Second Reasons [41]. -- 61 of 65 -- [2026] SASCA 65 B Doyle AJA 58 221 Another basis for that approach might be that whilst disclosure under the FOI Act does not occur in a ‘place’, because the practical effect would be to cause the same mischief that Art 9 was concerned to avoid (namely, ‘impeaching’ or ‘questioning’ of the relevant kind), a harmonious construction of cl 17(c) and Art 9 justifies either deeming the FOI Act to create a statutory place or ignoring that aspect of Art 9 in this context. I will return to that approach later. 222 The respondent’s preferred approach, however, is that the determination made by an FOI officer or the Ombudsman involves a determination which, as an official function of a body, does occur in a ‘place’ of the relevant kind. 223 In my view, to focus on the determination that may be made under the FOI Act is artificial. If the focus upon the making of a determination is an implicit recognition that, in context, ‘place’ connotes an official forum in which determinations may be made about matters connected with parliamentary proceedings, the determination of an FOI officer or Ombudsman under the FOI Act is not a determination of that kind. There is no determination about the subject matter of any parliamentary proceeding; on the respondent’s construction there is simply a determination (reflecting the terms of the FOI Act itself) that the document contains matter that is related to a parliamentary proceeding. In other words, the assessment made by the officer or Ombudsman is simply that there is an occasion of privilege; but as the authorities show, that is a function commonly undertaken by courts with no suggestion that doing so infringes Art 9. Further, there is a circularity problem. An FOI officer or Ombudsman can only make a determination based on the character of the documents that must be antecedent to the determination. The fact that that character then may be the subject of determination ought not be determinative of its character. 224 Moreover, the focus upon the assessment made by the FOI officer or the Ombudsman fails, in my view, to pay proper regard to the hypothesis posited by cl 17(c), which is not whether the determination to grant access would infringe a privilege of the parliament, but whether public disclosure of the matter in the document would have that effect. 225 In my view, whilst it is not necessary or appropriate exhaustively to define ‘place’ in this context, the limits are informed by the two main concerns that the history and the modern authorities reveal to lie behind Art 9: namely, to forbid things said and done in parliamentary proceedings being held against the participants, and to avoid the spectre of another arm of government (or its representative) inquiring into the conduct of its participants or its internal affairs. Given those concerns, ‘place’ may be understood as referring to tribunals, bodies or representatives of the executive that may impose consequences upon or by reference to the conduct of participants in parliamentary proceedings, or which may make findings about or concerning that conduct, even if those findings may be preliminary (such as a finding that there is a matter warranting prosecution). In substance, I respectfully agree with the approach of Hall J in President of the Legislative Council of Western Australia. -- 62 of 65 -- [2026] SASCA 65 B Doyle AJA 59 Freedom of speech or debates impeached by public disclosure of the matter? 226 For the reasons given earlier, whilst I have reservations about the breadth of the approach taken to ‘impeach’ by McPherson JA in Rowley v O’Chee, the decision in terms concerned whether compelled disclosure pursuant to a curial obligation of discovery impeached the expansively defined concept of ‘proceedings in Parliament’ applying under s 16 of the Privileges Act. 227 However, even accepting the correctness of that approach, it does not follow that public disclosure of the matter contained in an Executive briefing note impeaches ‘free speech and debates or proceedings in Parliament’. 228 Whereas compelled disclosure for the purpose of court proceedings presupposes a realistic prospect that the mater disclosed may be used in some way in the proceedings (because the compulsory process may otherwise involve an abuse), cl 17(c) posits the public disclosure of matter absent any connection with any investigative or adjudicative consequence that may follow. 229 The immediate consequence of public disclosure is public scrutiny, but public scrutiny does not engage any wider principle of non-interference than is manifested in Art 9. The indirect consequence of public disclosure may be that information becomes available for potential adverse use in legal proceedings or in other analogous contexts, but parliamentary privilege will, by hypothesis, restrain any problematic use. Another indirect consequence of public disclosure may be to provide a disincentive to the recording of similar matter in a similar document in the future, but in the context of Executive briefing notes, I do not consider that the ‘whistleblower’ effect contemplated in Rowley v O’Chee provides a sound basis for any assumption or inference that there would be a material adverse consequence for the freedom of speech and debates or participation in parliamentary proceedings. Of course, an Executive briefing note may also contain matter that makes the document exempt on one of the other bases set out in Schedule 1 to the FOI Act. But if it does not, or to the extent that it does not, the circumstance that it was considered material to the evidence that might be given to a parliamentary committee suggests that the information may be of a kind the revelation of which could be compelled by that committee, in which case the material would be liable to enter the public domain in any event, subject to a Standing Order or some other order or direction. 230 In these circumstances, I would not accept that public disclosure of an Executive briefing note would have such an effect upon freedom of speech and debates or proceedings in Parliament that, even though it may not occur in a ‘place’, it justifies the conclusion that the essence of privilege encapsulated by Art 9 must be taken to be infringed. Whether any public disclosure would infringe the privilege of Parliament 231 As noted earlier, the appellant advances a further textual contention that a document will only be exempt under cl 17(c) if any disclosure of the matter in it, -- 63 of 65 -- [2026] SASCA 65 B Doyle AJA 60 whether done voluntarily or involuntarily, would infringe the privilege of Parliament. This was the substance of the first ground of appeal. The argument is that because there may be no restriction upon a member of the executive government choosing to disclose the matter in an Executive briefing note, it follows that there may be circumstances in which a public disclosure would not infringe the privilege of Parliament. 232 Whilst it is not strictly necessary to decide this issue given my acceptance of the more fundamental contentions made by the appellant, I am inclined to think that the correct view is that cl 17 does not posit a range of different circumstances that might cast a different complexion on a public disclosure of matter. That said, I think it posits public disclosure by the agency simpliciter, and does not require it to be posited that the disclosure is disclosure compelled by or under the FOI Act. 233 I say that because disclosure compelled by statute would not likely amount to a contempt or contravention of an order of the kind contemplated by cll 17(a) and (b).238 In reaching this conclusion, I do not overlook the words ‘but for any immunity of the Crown’ in the chapeau. However, and differing in this respect from the observations of Bayne,239 I think the immunity being referred to is not the statutory protections conferred under ss 50 or 51 of the FOI Act (which spring from the making of an honest determination under the Act), but any antecedently existing immunity from contempt and the other consequences that might follow from the events described in cll 17(a), (b) and (c) by reason of the status of the Crown. Whether and to what extent there would in fact be any immunity for a particular agency may be a vexed question that need not be addressed.240 234 If this view is correct, cl 17 does not require a range of disclosures to be posited, some voluntary; others compelled. It simply posits public disclosure by the agency and asks whether this would have any of the identified consequences, putting to one side any protected status that the Crown or its instrumentalities might otherwise have. If correct, this view would also likely require the appeal to be allowed. I prefer, however, to base my decision on my consideration of the second ground of appeal. Conclusion 235 As these reasons indicate, I consider there to be real difficulties with the idea that public disclosure of matter contained in documents that have a close connection with parliamentary proceedings would involve the freedom of speech 238 In Lockwood v Commonwealth (1954) 90 CLR 177 at 185, Fullagar J said that ‘[n]o court could hold … that what is expressly authorized by or under a statute is a contempt’. 239 Those observations concerned the subtly different provision in the federal legislation (‘apart from this Act and any immunity of the Crown’): Bayne, ‘Exemptions Under the Freedom of Information Act 1982’ (1983) 14 Federal Law Review 67 at 127. 240 As to a finding of contempt against the Crown or a government department, see, eg, M v Home Office [1994] 1 AC 377 at 424-425 (Lord Woolf), referred to in Commonwealth v ALJ20 (2021) 273 CLR 43 at [52] (Kiefel CJ, Gageler, Keane and Steward JJ). As to Crown immunity more generally, see, eg, Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks (2024) 281 CLR 525. -- 64 of 65 -- [2026] SASCA 65 B Doyle AJA 61 and debates or proceedings in Parliament being impeached or questioned in a court or other place outside of Parliament. That is to say, I consider there are real difficulties in accommodating Art 9 within the framework of cl 17(c). 236 It is sufficient, however, to hold that it has not been demonstrated that by reason of their status as Executive briefing notes, the public disclosure of the matter in the documents the subject of this appeal would infringe the ‘privilege of Parliament’. This conclusion makes it unnecessary distinctly to address and resolve the first and third grounds of appeal. -- 65 of 65 --