Criminal Justice Commission v Nationwide News Pty Ltd & Anor [1994] QCA 352 [1996] 2 Qd R 444

IN THE COURT OF APPEAL [1994] QCA 352 SUPREME COURT OF QUEENSLAND Appeal No. 21 of 1994. Brisbane [CJC v. Nationwide] Before Fitzgerald P Pincus J A Davies J A BETWEEN: CRIMINAL JUSTICE COMMISSION (Plaintiff) Appellant AND: NATIONWIDE NEWS PTY LIMITED (First Defendant) First Respondent AND: MADONNA KING (Second Defendant) Second Respondent REASONS FOR JUDGMENT - FITZGERALD P Judgment delivered 08/09/1994 This unusual case raises important questions concerning the Criminal Justice Commission (the "Commission) and the Parliamentary Criminal Justice Committee (the "Committee"), which monitors and reviews the Commission's performance of its functions. Both are established by the Criminal Justice Act 1989 (the "Act") in accordance with the Report of a Commission of Inquiry dated 3 July 1989 which is referred to in that Act. The following is a brief extract from that Report: "The CJC should report to the Criminal Justice Committee. ... many of the matters to be the subject of report by the CJC, including its operational priorities and methods and the subject matters of its concern, may need to be confidential. In consequence, the reporting -- 1 of 35 -- 2 of the CJC should not be to the Parliament in the first instance, and, in some cases, not at all. The Criminal Justice Committee's members should be subject to specific obligations of confidentiality. The Criminal Justice Committee must have the power to conduct hearings in camera. It should decide what material matters reported to it can be reported to and tabled in the Parliament and when that is to be done. Some matters may never be tabled." As can be seen from that passage, it was envisaged that the Commission might include in its reports to the Committee confidential information which would not become public. The need to avoid publication of such information is obvious: cf. Freedom of Information Act, 1992, section 42. Indeed, subsection 27(2) of the Act permits the Commission to withhold even from its reports to the Committee "information in its possession [which] is such that confidentiality should be strictly maintained in relation to it." Subject to that exception, however, the Act proceeds on the basis that all reports by the Commission to the Committee will soon afterwards become public. Subsection 21(3) requires the Commission to report to the Committee - "(a) on a regular basis ... ; (b) when instructed by the Parliamentary Committee to do so ... ; (c) when the Commission thinks it appropriate to do so ...". Subsections 26(1),(3),(4),(5),(6), and (7) provide: "26(1) ... a report of the Commission, signed by its chairperson, shall be furnished - (a) to the chairperson of the Parliamentary Committee; and (b) to the Speaker of the Legislative Assembly; and -- 2 of 35 -- 3 (c) to the Minister. ... (3)If a report is received by the Speaker when the Legislative Assembly is not sitting, the Speaker shall deliver the report or any accompanying document to the Clerk of the Parliament and order that it be printed. (4)A report printed in accordance with subsection (3) shall be deemed for all purposes to have been tabled in and printed by order of the Legislative Assembly and shall be granted all the immunities and privileges of a report so tabled and printed. (5)A report received by the Speaker, including one printed in accordance with subsection (3), shall be tabled in the Legislative Assembly on the next sitting day of the Assembly after it is received by the Speaker and be ordered by the Legislative Assembly to be printed. (6) No person shall publish, furnish, or deliver a report of the Commission, otherwise than is prescribed by this section, unless the report has been printed by order of the Legislative Assembly or is deemed to have been so printed. (7) This section does not apply to an annual report of the Commission referred to in section 7.10. ... ." Subsection 26(6) will be referred to again later. For the moment it is sufficient to note that, taken by itself, it appears to prohibit publication of a report furnished by the Commission under subsection 26(1) by any person, including the Commission, until the report is printed or deemed to be printed by order of the Legislative Assembly. This might indicate that, until that time, the Commission could not publish all or part of the contents of a report in a court proceeding taken to protect the report's confidentiality. -- 3 of 35 -- 4 Except for those already referred to, there is no presently material provision with respect to the Commission informing the committee by "report", a concept which is not defined by the Act but is left to have its meaning determined in accordance with ordinary usage. However, it is important to note that the Act appears to recognise that the Commission may inform the Committee otherwise than by report. Subsection 132(3) assumes that the Committee may acquire information from the Commission otherwise than by report, and that is also consistent with subsections 118(1) and (2); see also section 23. The importance of this for present purposes is that the Commission is able to inform the Committee on a confidential basis if it acts otherwise than by report. It is unnecessary at this point to identify the methods by which that can be done. A practice has developed of the Commission providing information in writing on a monthly basis to the Committee, but not it seems to the Speaker or the Minister. The Committee has treated at least some of these documents as confidential. The present litigation between the Commission and the respondents relates to a document which the Commission provided to the Committee in November last year, which was furnished "under terms of strict confidentiality." At the hearing in this Court, it was suggested that the document was not a report but a document of some other description, perhaps an "aide memoire". The Court has not -- 4 of 35 -- 5 seen a copy of the document. However, it is consistently referred to as a report in the Commission's material, including the writ and affidavits, and is so described in the undertakings which the Commission has accepted from the respondents in the course of this litigation. Further, the description of the contents of the document in affidavit evidence filed on behalf of the Commission tends to support a conclusion that the document is a report. Nonetheless, at this interlocutory stage of the proceedings, I am prepared to proceed on the basis that, as asserted, the document is not a "report". Following articles in "The Australian" and "The Weekend Australian" newspapers in December 1993 and January 1994 which the Commission alleges published "matters contained in or emanating from" the document which it had provided to the Committee, the Commission commenced this action, in which the publisher of the newspapers and the journalist who wrote the articles are the defendants, claiming an injunction to restrain the publication or disclosure of "the content or any part thereof of a report by the [Commission] directed to the Parliamentary Criminal Justice Committee for the month of November 1993." An interim injunction was granted in the Trial Division on 7 January 1994, but an interlocutory injunction was refused on 21 January. An appeal was immediately instituted and, on the same day, the respondents gave an undertaking "not to publish or -- 5 of 35 -- 6 disclose the contents or any part of" the document "until the determination of this appeal". That undertaking was renewed before this Court at the hearing of the appeal. Indeed, on that occasion, the respondents extended their undertaking to the trial of the action, subject only to this Court being satisfied that the Commission's action is one which can (and should) be heard and determined in the Supreme Court. That point arises because of submissions by counsel acting under instructions from the Speaker of the Legislative Assembly, who sought and were granted, without objection from the parties, leave to appear at the appeal hearing as amici curiae. The broad effect of the Speaker's primary submission was that if, as alleged by the Commission, there has been an unauthorized publication of the document by the respondents, that constituted a breach of parliamentary privilege, and all proceedings in relation to conduct which constitutes such a breach are solely the prerogative of Parliament, and, at least until Parliament decides not to act on that breach of privilege, outside the jurisdiction of the courts, even though the conduct involves a breach of the law or of legal rights or duties and the relief claimed or verdict sought in a court proceeding is consistent with the privilege asserted. Alternatively, it was submitted for the Speaker that, even if the Court has jurisdiction to hear and determine the Commission's claim against the respondents, it cannot (or should not) -- 6 of 35 -- 7 adjudicate upon that claim because of restrictions upon the permissible use of the document in a court proceeding. It was said that the document may not be published in the proceeding or "commented upon, used to draw inferences, analysed [or] made the subject of submission and conclusion." Further, it was argued that "it matters not that the actual November Report itself [is] not so used, but instead information concerning the contents - the proscription is just as applicable to a newspaper or other account of the November Report's contents as it is to that report itself." The argument by counsel for the Speaker in relation to both his primary and alternative submissions commenced with Article 9 of the Bill of Rights 1688 (1 William and Mary Sess. 2c2), which declares 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. It was submitted that: (i) Article 9 applies in relation to the Queensland Parliament: Imperial Acts Application Act 1984, section 5, (ii) "proceedings in Parliament" for the purposes of article 9 of the Bill of Rights and the Parliamentary Papers Act, 1992, include a document provided by the Commission to the Committee: see especially subsections 3(1), (2) and (3)(d) of the Parliamentary Papers Act; and -- 7 of 35 -- 8 (iii) an unauthorised publication of a document which is a proceeding in Parliament is a breach of parliamentary privilege, which Parliament can punish: Resolution of the House of Commons in 1837 referred to in the 21st Edition of Erskine May's Treatise on the Law, Privileges and Usage of Parliament, 1989, p.123, and section 40A of the Constitution Act, 1867, both of which are further discussed below. See also Parliament's Standing Order 333. It is convenient to proceed at this point on the basis that these three propositions are correct, and to accept that, absent any statutory basis for doing so, the courts have no jurisdiction to punish such a breach of parliamentary privilege. Article 9 of the Bill of Rights might support the Speaker's primary submission if the Commission's action against the respondents impeached or questioned the relevant proceeding in Parliament, i.e., the document provided by the Commission to the Committee, (Dillon v. Balfour (1887) 20 LR Ir 600, 611-615), but it does not do so. On the contrary, the Commission's action against the respondents asserts and seeks to protect the confidentiality of the document provided by the Commission to the Committee, consistently with the parliamentary privilege claimed. No authority was cited by the Speaker which supports his submission that the Court has no jurisdiction to determine such an action, and In re Parliamentary Privilege Act, 1770, (1958) AC 331 contains a passage which suggests that the Speaker's primary submission is incorrect. Viscount -- 8 of 35 -- 9 Simonds, in delivering the advice of the Privy Council, said at p.353: "Their Lordships repeat that they answer this and no other question. It was referred to them and it became their duty to answer it. But they do not intend expressly or by implication to pronounce upon any other question of law. In particular they express no opinion whether the proceedings referred to in the introductory paragraph were `a proceeding in Parliament', a question not discussed before them, nor on the question whether the mere issue of a writ would in any circumstances be a breach of privilege. In taking this course they have been mindful of the inalienable right of Her Majesty's subjects to have recourse to her courts of law for the remedy of their wrongs and would not prejudice the hearing of any cause in which a plaintiff sought relief. As was justly observed by the Select Committee of the House of Commons appointed in 1810 to consider the famous case of Burdett v. Abbot (see Hastell's Parliamentary Precedents, vol.1, at p.293): `And it appears, that in the several instances of actions commenced in breach of the privileges of this House, the House has proceeded by commitment, not only against the party, but against the solicitor and other persons concerned in bringing such actions; but your committee think it right to observe, that the commitment of such party, solicitor, or other persons, would not necessarily stop the proceedings in such action.' This is an aspect of the matter which cannot be ignored, for in the words of Erskine May, Parliamentary Practice, 16th ed.., p.172: `The House of Commons ... claims to be 'the absolute and exclusive judge of its own privileges, and that its judgments are not examinable by any other court or subject to appeal. On the other hand, the courts regard the privileges of Parliament as part of the law of the land, of which they are bound to take judicial notice. They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction and to decide it according to their own interpretation of the law. The decisions of the courts are not accepted as binding by the House in matters of privilege, nor the decisions of the House by the courts. Thus the old dualism remains unresolved.'" See also Rost v. Edwards (1990) 2 QB 460, 469-470; Wright v. Lewis (1990) 53 SASR 416. In any event, in a supplementary written submission received after the conclusion of oral argument, it was -- 9 of 35 -- 10 substantially conceded by counsel for the Speaker that there is sometimes a statutory basis for court proceedings in relation to conduct which breaches parliamentary privilege as well as contravenes the law or legal rights or duties: see, for example Chapter VIII of the Criminal Code; c.f. Broadlaugh v. Gossett (1884) 12 QBD 271, 283; Rees v. McCay (1975) 7 ACTR 4, 7; R. v. Smith, ex parte Cooper (1992) 1 Qd.R. 423, 430. That raises the question whether or not there is a statutory basis for the Commission's action against the respondents. It is preferable to pass over that for the moment, and to proceed to the Speaker's alternate submission. Although there is some disagreement in the authorities, I consider that a proceeding in Parliament which is, or has become, public can be proved in a civil proceeding and compared with a published report of the proceeding in Parliament where it is relevant to do so; e.g., for the purpose of determining whether a publication is lawful under subsection 374(1) of the Criminal Code: see Uren v. John Fairfax and Sons Ltd. (1979) 2 NSWLR 287; Mundey v. Askin (1982) 2 NSWLR 369; Henning v. Australian Consolidated Press Ltd. (1982) 2 NSWLR 374; Comalco Ltd. v. Australian Broadcasting Corporation (1983) 78 FLR 449; R. v. Murphy (1986) 5 NSWLR 18; Wright v. Lewis; Beitzel v. Crabb (1992) 2 VR 121; R. v. Smith ex parte Cooper; and compare Finnane v. Australian Consolidated Press Ltd. (1978) 2 NSWLR 435; R. v. Murphy (Supreme Court of NSW, unreported -- 10 of 35 -- 11 judgment 5 June 1985); R. v. Jackson (1987) 8 NSWLR 116; Amann Aviation Pty. Ltd. v. Commonwealth of Australia (1988) 19 FCR 223; Rost v. Edwards. Indeed, support for the view which I favour may also be found in section 47 of the Evidence Act, 1977, and in the resolution of the House of Commons dated 31 October 1980 (see Rost v. Edwards at p.477C-D and section 40A of the Constitution Act). If that view is correct and the process prescribed by section 26 of the Criminal Justice Act had been followed, there would be no objection to proof in the action commenced by the Commission of the contents of the document which it provided to the Committee in November 1993. However, that process, if followed, would have made the Commission's action against the respondents futile and, as has been noted, the process has not been followed. The document has been delivered only to the Committee, which continues to treat it as confidential. Section 40A of the Constitution Act provides that the "powers, privileges and immunities to be held, enjoyed and exercised by the Legislative Assembly and the members and committees thereof shall be such as are defined by any Act or Acts so far as those powers, privileges and immunities are not inconsistent with this Act and until so defined shall be those powers, privileges and immunities held, enjoyed and exercised for the time being by the Commons House of Parliament of the United Kingdom and its members -- 11 of 35 -- 12 and committees so far as those powers, privileges, and immunities are not inconsistent with this Act or any other Act, whether held, possessed or enjoyed by custom, statute or otherwise." And, according to the 21st Ed. of Erskine May's at pp.122-123: "As early as the mid seventeenth century it was declared to be against the custom of Parliament for any act done at a committee to be divulged before being reported to the House. Subsequently, though the House of Commons found it increasingly difficult to enforce effectively its rules against the disclosure abroad of proceedings in the Chamber, the privacy of committee proceedings and the prior right of the House itself to a committee's conclusions was upheld, and punishment was inflicted on a newspaper proprietor who published the contents of a draft report laid before a select committee but not considered by it or presented to the House. In 1837 the House of Commons resolved that according to the undoubted privileges of this House, and for the due protection of the public interest, the evidence taken by any select committee of this House and the documents presented to such committee and which have not been reported to the House ought not to be published by any member of such committee, or by any other person." In my opinion, in these circumstances, no person, including the Commission, may publish the contents of a document presented by the Commission to the Committee unless authorised to do so by statute, the Parliament or perhaps the Committee. The Court therefore cannot receive evidence of the contents of the document in the absence of authority from the Parliament (or perhaps the Committee), unless there is a sufficient statutory basis for doing so. The Commission sought to avoid this conclusion by a number of overlapping submissions. One, that the document provided by the Commission to the Committee in November 1993 -- 12 of 35 -- 13 was not a "report", has already been noted. Another was that the document was not "presented" to the Committee as required by subsection 3(3)(d) of the Parliamentary Papers Act and the resolution of 1837 as described in Erskine May: it was said that the provision of the document by the Commission to the Committee was not sufficiently "formal". The factual basis for this proposition is not made out by the evidence, which simply refers to the document being forwarded by the Commission to the Committee, and at this interlocutory stage I consider that the Court should proceed on the footing that the document was "presented" to the Committee in the relevant sense. The Commission's third point was that the resolution of 1837 has been supplanted by Parliament's Standing Order 206, made pursuant to section 8 of the Constitution Act, which provides: "206. The evidence taken by a Select Committee and documents presented to such Committee which have not been reported to the House shall not, unless authorised by the House, be disclosed, published or referred to in the House." The Speaker submitted in answer that, apart from any conflict between Standing Order 206 and subsection 4(2) of the Parliamentary Papers Act which may at least require Standing Order 206 to be read down, "the words 'in the House' govern 'referred to', not 'disclosed' or 'published' ...". If that is incorrect, then Standing Order 206 is concerned only with what may be done in Parliament by members of Parliament, and does not determine what may be -- 13 of 35 -- 14 done outside Parliament, which relevantly is left to the 1837 resolution. On either view, the Commission's submission based on Standing Order 206 cannot be accepted. This is hardly surprising, since acceptance of the Commission's argument would have the bizarre consequence that only members of Parliament, and not other persons, are prohibited from disclosing the contents of a document presented to a Parliamentary Select Committee. It remains to be considered whether there is any statutory basis for the Commission's action against the respondents, and the disclosure to the Court of at least part of the contents of the document presented by the Commission to the Committee. If the document provided by the Commission to the Committee in November 1993 was a "report" within the meaning of the Act, it would be necessary to consider subsection 26(6) at this point. However, as has been stated, it has been accepted at this interlocutory stage that the document is not a report, and the present question falls for determination on that basis. The objects of the Act, which are set out in section 3, provide for the establishment and maintenance of the Commission and for it to carry out investigations of serious criminal conduct and official misconduct and "to discharge such functions and responsibilities as are incidental to or -- 14 of 35 -- 15 in aid of discharge of" the other activities mentioned in subsection 3(a). Section 23 of the Act deals further with the Commission's "Responsibilities". Subsection 23(d) gives the Commission responsibility for "...managing criminal intelligence ...", and subsection 23(l) gives it responsibility for "taking such action as the Commission considers to be necessary or desirable in respect of such matters as, in the Commission's opinion, are pertinent to the administration of criminal justice." See also section 58 dealing with the "Role and functions" of the Intelligence Division of the Commission and subsection 20(1). These deliberately broad responsibilities and functions should be given a liberal construction, and, in my opinion, provide a sufficient foundation for the Commission to take civil action to protect its confidential information, and, to the extent necessary, to disclose that information in connection with the prosecution of that action. Counsel for the Speaker submitted that it does not necessarily follow that this may be done when the information is contained in a document which the Commission has presented to the Committee, and disclosure of the contents of the document by the Commission would, but for the Act, be a breach of Parliamentary privilege. It was argued that the statutory provisions referred to should be construed so as not to derogate from Parliament's privileges; it was said that it is established that privileges recognised by law are presumed to be unaffected -- 15 of 35 -- 16 by legislation unless the contrary appears expressly or by necessary implication. As at presently advised, I incline to the view that the contrary does sufficiently appear, because the Commission needs the power in question to carry out its statutory purpose and effectively perform the functions which it has been given. The protection of its confidential information, for example with respect to the investigation of major crime, including perhaps the identity of undercover operatives and informants, seems to me so fundamental to the Commission's effective operation and so much in the public interest that Parliament could not have intended that it be unrealistically fettered in its ability to maintain essential secrecy. It is relevant to note the arbitrary manner in which the limitation proposed by the Speaker would operate. The restriction suggested would not depend upon a decision by Parliament or the Committee, but on mere inaction or delay, quite possibly unintentionally. And the potential beneficiaries of any inability on the part of the Commission to protect its confidential information would plainly include those seeking to defeat the Commission's investigations. It is unnecessary, and in my opinion undesirable, that a final opinion should be reached on this difficult question at this interlocutory stage, at which the issues have not been clearly defined or facts finally established. Other -- 16 of 35 -- 17 considerations aside, the Commission needs establish at this point only that there is a serious question to be tried: Castlemaine Tooheys Limited v. South Australia (1986) 161 CLR 148. I have no doubt that that test has been satisfied. I am further of opinion that the balance of convenience is strongly in favour of maintaining the status quo, especially because of the importance which may exist in maintaining the confidentiality of the information in the document provided by the Commission to the Committee and the respondents' willingness to undertake not to further publish that information. Counsel for the Speaker submitted that, nonetheless, the Court should exercise its discretion against the grant of relief because of Parliament's remedies against the respondents if they publish additional information based on the document, and thereby breach Parliamentary privilege. While I accept that this is a material consideration, it does not persuade me that the Court should stay its hand. It is a factor of considerable significance that Parliament has shown no inclination to act on the articles already published by the respondents, and presumably therefore would not act unless and until there was further publication. By then, it might be too late; irreversible damage might already have occurred. On the other hand, the fact that the Commission has -- 17 of 35 -- 18 presented a document to the Committee and that the document is a proceeding in Parliament is of significance, and any relief granted by the Court should be framed so as to recognize Parliament's power and privileges. For this reason, I consider that any injunction granted, or undertaking accepted, to restrain the publication of the Commission's confidential information should be qualified so as to permit publication or disclosure if authorized by Parliament. It remains to decide what orders should be made. The respondents' concession in offering an undertaking substantially in terms of the injunction sought by the Commission means that the appeal should be allowed and the orders made below set aside. The Court heard no argument with respect to costs, here or below, which should be reserved to the trial judge. The only other order which is necessary is to adjourn the further consideration of the appeal to a date to be fixed; that will enable the respondent to file an undertaking based on Order 1 of the Notice of Appeal, but with the qualification indicated above. The undertaking will no doubt be filed promptly. -- 18 of 35 -- 19 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 21 of 1994. Brisbane [CJC v. Nationwide] Before Fitzgerald P Pincus J A Davies J A BETWEEN: CRIMINAL JUSTICE COMMISSION (Plaintiff) Apellant AND: NATIONWIDE NEWS PTY LIMITED (First Defendant) First Respondent AND: MADONNA KING (Second Defendant) Second Respondent REASONS FOR JUDGMENT - PINCUS J.A. Judgment delivered 08/09/1994 In this appeal from refusal of an interlocutory injunction restraining publication of confidential information, the question to be determined is whether relief should be refused on the ground that to grant it would infringe Parliamentary privilege. This argument was put forward by counsel for the Speaker of the Legislative Assembly, who raised two questions: whether the matter of which the respondent complained was one within the exclusive jurisdiction of the Parliament, and whether the process of arriving at a conclusion in the case involved a breach of laws restricting the use which may be made of Parliamentary materials. It is convenient to call the first point the -- 19 of 35 -- 20 substantive objection and the second the procedural objection. In view of the content of the reasons of the President, which I have read, it is unnecessary to explain the terms of the statutory and other provisions relied on. The appellant Commission sued to restrain the respondents, who are respectively a newspaper proprietor and a newspaper reporter, from publishing the content of what is described in the writ as "a report by the Plaintiff directed to the Parliamentary Criminal Justice Committee for the month of November 1993". Some discussion took place before the Court as to whether the document is properly described as a report; it appears to me that the description is accurate and I shall use it. A number of articles were published by the first respondent in its newspapers whose content was such as to satisfy the primary judge that the respondent reporter, Ms King, must have had access to a copy of the report or extracts from it, or must have received a substantial oral account of its contents from somebody who had access to it. The primary judge, Dowsett J, refused relief, not being satisfied that there was a serious question to be tried as to the confidentiality of the whole of the report. He expressed a willingness to entertain an application for suppression of specific parts of the report, but no such application was made; the appellant has come to this Court instead. For the reasons explained by the President, the only issue we have to deal with is that of Parliamentary privilege. -- 20 of 35 -- 21 The appellant's right to sue to protect the confidentiality of the report, if it in fact be confidential, is not in issue; that is, its statutory powers are wide enough to enable it to bring this action. Nor, in view of the concessions made by the respondents, is it necessary to discuss a matter the subject of submissions to the Court, namely whether the report is one falling within s. 26 of the Criminal Justice Act 1989; if it is, then it must be tabled in the Legislative Assembly under s. 26(5) of that Act. I confess to some difficulty in comprehending the argument against the report being one within s. 26, but I say no more on that subject. On the substantive objection, counsel for the Speaker argued that only Parliament, and not the Courts, may notice or take steps against the unlawful publication of a report to a Parliamentary Committee, or of material based on such a report. The broad proposition put forward was that any act which constitutes a breach of Parliamentary privilege may be punished only by Parliament itself; as an alternative, it was suggested that the courts may take cognisance of such a matter only if Parliament, having had an opportunity to do so, decides not to proceed as for contempt of Parliament. There is no reason to doubt that if one member of Parliament, during the course of a debate, insults another, that is a matter to be dealt with by Parliament and not the -- 21 of 35 -- 22 courts. To preserve the privileges of Parliament, statutes may need on occasions to be read broadly: for example the terms of s. 371 of the Criminal Code do not appear expressly to protect defamatory questions or interjections. But the submission advanced to the Court goes well beyond this sort of protection and would support the view that if an assault were committed on the floor in Parliament, even one causing serious injury, that could be the subject of court proceedings only if Parliament indicated that it proposed to take no steps - and perhaps not even then. While there is no difficulty in rejecting that proposition, the precise extent of Parliament's exclusive jurisdiction in protecting its own privileges is not easy to define. It does not appear to me, with respect, that the question can depend on whether or not the impugned court proceedings, relating to an act which is in breach of Parliamentary privilege, have a statutory basis. If an assault causing grievous injury were committed by one member on another during the course of a debate, it is clear enough that the injured member could sue, under the general law. The weight of such authority as exists, as it seems to me, is rather against the broad submissions made on behalf of the Speaker and referred to above. In Stockdale v. Hansard (1839) 112 E.R. 1112, Lord Denman CJ pointed out that a contempt deserving the severest penalties could be punished only lightly by Parliament and the court held that an action for defamation could lie in respect of a document -- 22 of 35 -- 23 which was published by order of the House. There is the decision of the Privy Council in a New South Wales Case, Attorney-General v. Macpherson (1870) L.R. 3 PC 268. The crime of assault (a common law offence) was charged against a member of the Legislative Assembly; it was alleged that he had assaulted another member of the Assembly in an ante- chamber, adjoining the legislative chamber, while Parliament was sitting. The Privy Council overruled a demurrer by the accused founded on the contention that if the assault occurred it was a contempt of Parliament. In the Supreme Court, Hargrave J had denied that the common law offence of assault was maintainable "in respect of any contemptuous or disorderly conduct during the sitting of a Colonial Legislative body". Although the judgment of Lord Cairns did not deal explicitly with that point, but rather treated the issue as depending upon the form of the pleading, the outcome is hardly consistent with the existence of such a principle as that for which counsel for the Speaker contended here. Stephen J. could find no authority, in 1884, "for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice": Bradlaugh v. Gossett 12 QBD 271 at 283, and none was referred to in this Court. In the recent South Australian case, Wright and Advertiser Newspapers Ltd v. Lewis (1990) 53 S.A.S.R. 416, an action for defamation was brought by a South Australian parliamentarian in relation to a letter critical of the plaintiff's parliamentary conduct. The contention that an -- 23 of 35 -- 24 act which is a contempt of Parliament is for that reason not justiciable by the court was rejected, for reasons which, with respect, seem compelling: per King CJ at 422. In Canada, the proposition that if an act constituting a common law offence is also a contempt of Parliament the jurisdiction of the courts is excluded was rejected in Bunting and Ors. (1885) 7 O.R. 524 at 536, 558. Bunting was discussed more recently in a Quebec case, La Commission Royale d'Enquete v. Boulanger [1962] B.R. 251 at 261-4. Montgomery J pointed out that the Quebec legislature had passed an Act making it an offence for a member to receive any remuneration in connection with any Bill submitted to the House in which he sits, but the Act provided that any infringement must be established before the House concerned, or a committee of such House. Nevertheless, in Montgomery J's opinion there was no intention to prevent the application to members of the Legislature of the ordinary offence of bribery. Here the difficulty is that what the Court is asked to do is to make an order protecting the confidentiality of a document which has gone to a committee of Parliament and which is, without doubt, part of the proceedings of Parliament for the purposes of article 9 of the Bill of Rights (1688): Parliamentary Papers Act 1992 s. 3. On the face of it there is no great improbability in the proposition that the protection of the confidentiality of -- 24 of 35 -- 25 such a document is a matter for Parliament, not the courts. But it is my view that reference to the statute under which the report was made tends to make one doubt the validity of that proposition. The Parliamentary Committee is of course an organ of Parliament but it is not merely that. The mode of composition of the committee is dictated by statute: Division 1 of Part 4 of the Criminal Justice Act 1989, as are its functions: s. 118 of that Act. Those statutory functions include the executive function of participating in the constitution of the Commission and removal of Commissioners from office: s. 11, s. 14(6)(g). Most significantly, the Act creates an offence, explicitly applicable to members of the Parliamentary Committee, of wilfully disclosing information received from the Commission, except in certain circumstances; there is of course no doubt that that offence is cognisable in the courts: s. 132. It would seem unlikely that the legislature intended that a member of Parliament may be prosecuted for revealing the content of a report made to the Committee, but a member of the public may not be sued on that account. These considerations tend against the view that it is Parliament alone, not the courts, which has the function of protecting the confidentiality of reports to this special Committee. I am of opinion that the substantive point taken on behalf of the Speaker should be rejected; the Supreme Court has jurisdiction to entertain an action to restrain -- 25 of 35 -- 26 disclosure of the content of a report to Parliament made by the plaintiff, although such disclosure may also be the subject of Parliamentary proceedings based on an allegation of breach of privilege. The second question is whether the procedural objection is good. It was contended on behalf of the Speaker that, in considering evidence concerning the contents of the report for the purpose of drawing the conclusion the primary judge did with respect to confidentiality, namely that the information in the report could not be regarded as confidential in whole, his Honour infringed article 9 of the Bill of Rights. Although during oral argument other points were discussed, it appears to me that the Court should confine itself to the precise point which has, in a practical sense, arisen. In the President's reasons his Honour has expressed the opinion that provisions of the 1989 Act allow the appellant to take civil action to protect its confidential information, and, to the extent necessary in that suit, to disclose that information. My agreement with his Honour is confined to the point just mentioned - i.e. the propriety of the use which the primary judge has in fact made of the report. It seems to me impractical to consider, as a hypothetical question, whether any and if so what uses of the report, other than that already made by the primary judge, would be legally permissible. In arriving at my conclusion I have taken into account the opinion expressed by Patteson J in Stockdale v. Hansard -- 26 of 35 -- 27 (above) at 1191, to the effect that proceedings for contempt of Parliament proceed on the ground of: "...the necessity that the House of Commons and the members thereof should in no way be obstructed in the performance of their high and important duties..." I have also noted the views of Hunt J, expressed in Murphy (1986) 5 N.S.W.L.R. 18 at 30: "...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". It is not clear to me that article 9 of the Bill of Rights, insofar as it prohibits the questioning in court of debates or proceedings in Parliament is confined to court proceedings having the effects Hunt J mentions. But, given that the Supreme Court has jurisdiction to entertain this action, it would seem to me plain enough that the comparison which Dowsett J made involved no breach of privilege. I concur in the orders proposed by the President. -- 27 of 35 -- 28 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 21 of 1994 Brisbane Before Fitzgerald P. Pincus J.A. Davies J.A. [CJC v. Nationwide & Anor] BETWEEN: CRIMINAL JUSTICE COMMISSION (Plaintiff) Appellant AND: NATIONWIDE NEWS PTY LIMITED (First Defendant) First Respondent AND: MADONNA KING (Second Defendant) Second Respondent REASONS FOR JUDGMENT - DAVIES J.A. Judgment delivered 08/09/1994 Pursuant to a practice to give such reports monthly, in November 1993 the appellant ("the CJC") gave, in confidence, a written report ("the November report") on its activities to the Parliamentary Criminal Justice Committee. On 28 December 1993, 1-2 January 1994, and 4 January 1994 articles written by the second respondent (Ms King) appeared in The Australian newspaper published by the first respondent (Nationwide News). The learned primary judge was satisfied that, to write those articles, Ms King must either have had access to a copy of the November report or extracts from it, -- 28 of 35 -- 29 or have received a substantial oral account of its contents from someone who had access to it. In the proceedings from which this appeal is brought, the CJC sought to restrain further publication or other disclosure of any part of the November report. The injunction was sought on three bases; that it was in breach of confidence, that it infringed the CJC's copyright in the report, and that the disclosure was in breach of the criminal law. It was refused by the learned primary judge and the appeal is brought from that refusal. On the hearing of this appeal, counsel for the Speaker of the Legislative Assembly sought and were allowed to be heard as amici curiae. They made two main submissions. The first, which was put in the alternative, was that the Supreme Court had no jurisdiction to grant the injunction sought because the disclosure, being a contempt of the Legislative Assembly, was within the exclusive jurisdiction of the Legislative Assembly; or that the Court has no jurisdiction unless Parliament declined to act. Secondly, they submitted that article 9 of the Bill of Rights, 1688 prevented the court from commenting on, drawing inferences from, analysing or reaching a conclusion upon the contents of the November report. Either submission, if correct, would effectively put an end to the proceeding. In the event, these were the only questions requiring determination by this Court because Nationwide News and Ms King gave -- 29 of 35 -- 30 undertakings to the Court that, if the Court decided that the proceeding could be determined by the Supreme Court, they would not publish or in any way disclose the contents of the November report before the trial of the proceeding. It is therefore to those submissions that I now turn. Both commence with the proposition that the November report is a proceeding in Parliament within s. 3 of the Parliamentary Papers Act 1992. In my opinion, that is correct. The November report was plainly a "document laid before, or presented or submitted to ... a committee" within the meaning of sub-s. (3)(d) of that section. The Parliamentary Criminal Justice Committee is a select committee of the Legislative Assembly: Criminal Justice Act 1989, Part 4. The first submission seems to involve a general proposition that when a threatened act would constitute a contempt of Parliament and also a breach of a civil right, a court would have no jurisdiction to restrain a breach of that right at the suit of the person whose right was thereby infringed. I accept, for present purposes, that the publication would constitute a contempt of Parliament. And it must be accepted that the Queensland Parliament has the same powers, privileges and immunities as the House of Commons: Constitution Act 1867, s. 40A. It could therefore plainly prosecute for contempt in respect of a publication once made. It may also be accepted that its power to do so is -- 30 of 35 -- 31 exclusive: The Speaker for the Legislative Assembly of Victoria v. Glass 17 E.R. 170 (P.C.); R. v. Richards; ex parte Fitzpatrick and Browne (1955) 92 C.L.R. 157. But it does not follow that the power excludes the jurisdiction of a court to deal with that act where it also constitutes a breach of the general civil or criminal law. On the contrary, it has long been recognised that breach of the criminal law may be prosecuted in the ordinary courts where it occurs within Parliament: Bradlaugh v. Gossett (1884) 12 Q.B.D. 271 at 283-4; and see now Criminal Code Ch. VIII. A court will not, or will only rarely, interfere with the deliberative process of Parliament. It is not completely clear whether this is because the court cannot enter upon an enquiry into that process before it is complete or because it will generally decline to do so out of respect for the different roles which each branch of government plays. It did so in Trethowan v. Peden (1930) 31 S.R. (N.S.W.) 183. Although neither the High Court (in Attorney-General for New South Wales v. Trethowan (1931) 44 C.L.R. 394 at 416) nor the Privy Council (in Attorney-General for New South Wales v. Trethowan (1932) A.C. 523) had cause to consider the correctness of the injunction granted in that case, neither suggested that it was improperly granted. However, Sir Owen Dixon, who was a party to the High Court decision, later doubted the correctness of the decision of the Full Court of New South Wales in granting the injunction (Hughes and Vale v. Gair (1954) 90 C.L.R. 203 at 205-6). Although this doubt -- 31 of 35 -- 32 was later construed by the Privy Council in Rediffusion (Hong Kong) Ltd v. Attorney-General of Hong Kong (1970) A.C. 1136 at 1156-7 as reflecting the settled practice with respect to the granting of discretionary relief rather than denying jurisdiction to enquire into the lawfulness of such proceedings, later dicta in Clayton v. Heffron (1960) 105 C.L.R. 214 at 234-5 and Cormack v. Cope (1974) 131 C.L.R. 432 at 465-6 appear to deny that the refusal by a court to intervene in the legislative process is based on equitable considerations rather than on the relationship between the two branches of government. See also Cormack at 467, 472 and 474; and Victoria v. The Commonwealth (1975) 134 C.L.R. 87 at 184. See generally Eastgate v. Rozzoli (1990) 20 N.S.W.L.R. 188 per Kirby P. at 193-8. If it were necessary to decide this question, and I do not think it is, I would prefer to say that a court will endeavour wherever possible not to intervene in the legislative process, its reluctance stemming from the mutual respect which each branch of government should accord the performance of its functions by the other. This view accords with what appears to be a reciprocal reluctance of parliament to intervene in the judicial process. See Clancy v. Butchers' Shop Employees' Union (1904) 1 C.L.R. 181, 196- 7, 204; Hockey v. Yelland (1984) 157 C.L.R. 124, 130, 142; Bropho v. Western Australia (1980) 171 C.L.R. 1, 17; Public Services Association (SA) v. Federated Clerks' Union of Australia (SA Branch) (1991) 173 C.L.R. 132, 160; Wentworth -- 32 of 35 -- 33 v. New South Wales Bar Association (1992) 176 C.L.R. 239, 252. And it is consistent with a similar refusal by courts to intervene in the domestic affairs of Parliament to enforce a general law prohibition against an act which Parliament has permitted within its walls: R. v. Graham- Campbell ex parte Herbert (1935) 1 K.B. 594. One could not imagine the same result in that case if Parliament had permitted the sale of prohibited drugs. Be this as it may, there is no basis in law or logic for extending the restraint (or lack of jurisdiction) beyond interference with the conduct by Parliament of its own affairs. It is not suggested that the injunction sought in this case could in any way interfere with the conduct by Parliament of its own affairs. On the contrary, it would preserve the secrecy of the relevant proceedings until publication, breach of which contempt proceedings would seek to punish. The second submission by counsel for the Speaker, in my view, raises similar considerations. It may be accepted at the outset that Art. 9 of the Bill of Rights is part of the law of Queensland: Constitution Act 1867, s. 40A; Imperial Acts Application Act 1984, s. 5; Parliamentary Papers Act, s.3(1)(a). Article 9 provides, in modern language: "That the freedom of speech, and debates on proceedings in parliament, ought not to be impeached or questioned in any court or place out -- 33 of 35 -- 34 of parliament." But proceedings in Parliament are not relevantly questioned in a court (to adopt the wider construction of Art. 9) merely because they are the subject of an injunction against publication. The purpose of Art. 9 was, in my view, to ensure that what was said and done in the performance of the functions of Parliament, including in committee, was free of sanction by a court. Otherwise the business of Parliament could not be freely conducted. Compare R. v. Murphy (1986) 5 N.S.W.L.R. 18. The granting of an injunction would not question the proceedings. On the contrary, it would preserve their secrecy as the legislature generally and the Criminal Justice Act in particular (see especially ss. 26(6) and 132) require. -- 34 of 35 -- A subsidiary point was raised by counsel for the Speaker. It was contended that, notwithstanding the nature of the proceedings from which this appeal is brought, as I have described them, evidence of the contents of the report could not be adduced to enable the Court to determine whether any of the bases for the injunction was established. Support was sought in Standing Order 206 which provides that documents presented to a Select Committee which have not been reported to the House shall not, unless authorised by the House, be disclosed. However it is almost inconceivable that, given that the purpose of the proceedings includes upholding parliamentary privilege, authority would not be given; and interlocutory relief should be granted on the assumption that it would be. And in any event, it is reasonably arguable that such authority is implicit in the objects and provisions of the Criminal Justice Act itself; see, for example, Part 2 Div. 3 which concerns the functions and responsibilities of the Commission, and particularly ss. 26(6) and 132 which imply that the court can consider the contents of a report or other document in order to determine whether confidentiality has been infringed. It is implausible that an allegation of an infringement of either of these provisions could be sustained without a court having access to the contents of the report. To the contrary, it would appear to follow that the court may, without breaching parliamentary privilege, have access to an unpublished parliamentary proceeding in order to protect its confidentiality. I agree with the orders proposed. -- 35 of 35 --