Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tebbutt v Minister for Lands and Water [2015] NSWCATAD 95 Hearing dates: On the papers Decision date: 12 May 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: J Lucy, Senior Member Decision: 1. The respondent's name is to be changed to Minister for Lands and Water. 2. The respondent's decision to refuse to provide access to the redacted information at pages 9-12, 19, 43, 86, 93-95, 131, 137, 203, 205 and 207 of the respondent's materials, filed on 19 December 2014, and to refuse to provide access to that information where it is duplicated in the respondent's materials, is affirmed. 3. The respondent's decision to refuse to provide access to the redacted information at page 119 of the respondent's materials, filed on 19 December 2014, is set aside, and, in substitution, a decision is made to provide the applicants with access to that information. Catchwords: GOVERNMENT INFORMATION - Conclusive presumption of overriding public interest against disclosure – Information that would be privileged from production on the ground of client legal privilege – Meaning of "client" – Whether a Minister is the State for the purposes of the definition of "client" in the Evidence Act 1995 GOVERNMENT INFORMATION - Conclusive presumption of overriding public interest against disclosure – Information subject to parliamentary privilege – Scope of parliamentary privilege - Whether information in house notes prepared for a standing committee is subject to parliamentary privilege Legislation Cited: Government Information (Public Access) Act 2009 (NSW) Administrative Arrangements (Administrative Changes—Ministers) Order 2015 (NSW) Evidence Act 1995 (NSW) Public Sector Employment and Management Act 2002 (NSW) Interpretation Act 1987 (NSW) Crown Proceedings Act 1988 (NSW) Constitution Act 1902 (NSW) Parliamentary Privileges Act 1987 (Cth) Bill of Rights 1688 (1 Will and Mary Sess 2 c 2) (Imp) Imperial Acts Application Act 1969 (NSW) Cases Cited: Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 Colefax v Department of Education and Communities [2013] NSWADT 75 Mann v Carnell (1999) 201 CLR 1 Re OPEL Networks Pty Ltd (in liq) (2010) 77 NSWLR 128 Stewart v Ronalds (2009) 76 NSWLR 99 Hamilton v Al Fayed [1999] 3 All ER 317 Rowan v Cornwall (No 5) [2002] SASC 160 Sportsbet Pty Ltd v State of New South Wales (No 3) (2009) 262 ALR 27 R v Murphy (1986) 5 NSWLR 18 R v Theophanous (2003) 141 A Crim R 216 R v Jackson; R v Hakim (1987) 8 NSWLR 116 Slipper v Magistrates Court of the ACT (2014) 179 ACTR 1 Prebble v Television New Zealand Ltd [1994] 3 All ER 407 Category: Principal judgment Parties: Martin Tebbutt (First Applicant) Marion Tebbutt (Second Applicant) Minister for Lands and Water (Respondent) Representation: Solicitors M Tebbutt and M Tebbutt (Applicants in person) Crown Solicitor's Office (Respondent) File Number(s): 1410494 reasons for decision 1. The applicants applied under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act") for access to information held by the Office of Deputy Premier of NSW and Minister for Trade and Investment. 2. The information sought was copies of all records and information referring to either of them held since 26 March 2011. The applicants said they particularly wanted information concerning their request for the refund of what they described as "overcharged money paid for the conversion of [their] land from perpetual lease to freehold title". 3. The background to the application is that the applicants purchased land they had been leasing from the State under a perpetual lease in 2004, just prior to a legislative change. Had they purchased the land after the legislative change, the price of the land would have been much less. They have been involved in negotiations with the government about recovering the difference ever since. 4. On 27 August 2014, a policy officer dealing with the applicants' application under the GIPA Act decided to release a large number of records to the applicants, to provide partial access to some records and to refuse access to other records. 5. On 5 September 2014, the applicants applied to this Tribunal for review of the decision of the "Office of Deputy Premier of NSW." The ground on which the applicants sought review was "unjustifiable refusal of records under GIPA Act". 6. On 25 November 2014, a planning meeting was held and the name of the respondent was changed, by consent, to Minister for Natural Resources, Land and Water. Directions were made for the parties to file and serve submissions and evidence and it was ordered, by consent, that the Tribunal would then determine the matter on the papers. 7. The respondent provided the applicants with access to further information on 11 December 2014. 8. The parties filed submissions and evidence, as directed. The respondent claimed that some of the information was subject to legal professional privilege and some was subject to parliamentary privilege. The respondent's evidence was that the information the subject of the claim for legal professional privilege was contained in documents involving the request for legal advice from, and the provision of legal advice by, a senior solicitor of the Department of Trade and Investment ("Department"), Mr Schulz. This advice had been requested on behalf of and provided to the Deputy Premier. 9. On 10 April 2015, the Tribunal wrote to the parties, indicating that it was of the preliminary view that the person or body to whom documents and communications were provided by the senior solicitor, Mr Schulz, was not the Department, as the respondent submitted, but the person or body for whom those documents were prepared. As a matter of procedural fairness, and to ensure that all relevant material was disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue, the Tribunal directed the parties to file and serve any further submissions on the identity of any client of Mr Schulz and the relationship between that client and Mr Schulz. Noting that there was no longer a Minister for Natural Resources, Land and Water, the Tribunal also invited them to make any submissions about the correct identity of the respondent. NAME OF RESPONDENT 1. The respondent informed the Tribunal that, on 2 April 2015, the Minister for Natural Resources, Lands and Water was replaced by the Minister for Lands and Water. A reference to the Minister for Lands and Water is now to be construed as a reference to the Minister for Lands and Water (Administrative Arrangements (Administrative Changes—Ministers) Order 2015 (NSW), cl 11). 2. It follows that the proper respondent is now the Minister for Lands and Water and the Tribunal directs that the respondent's name be changed accordingly. RESPONDENT'S CLAIMS 1. The respondent claimed that there is an overriding public interest against disclosure of the information not provided to the applicants on the following bases: 1. Some of the information would be privileged from production in legal proceedings on the ground of client legal privilege (GIPA Act, Sch 1, cl 5(1)); 2. Disclosure of certain information would infringe the privilege of Parliament (GIPA Act, Sch 1, cl 4(c)); 3. Disclosure of mobile phone numbers and a personal email address would reveal an individual's personal information (GIPA Act, s 14, table, cl 3(a)). 1. The applicants submitted in their response that the personal contact details of individuals should not be provided to them. I am satisfied that this is the correct and preferable decision and affirm the respondent's decision not to provide access to the redacted information at pp 131, 137 and 203 of the respondent's materials (being mobile telephone numbers and a personal email address). 2. It is therefore only the first two claims which are in contention. RESPONDENT'S EVIDENCE 1. Dwayne Schulz, a principal policy officer in the Department of Trade and Investment ("Department"), made an affidavit which the respondent filed in the proceedings. He stated that he had been a senior solicitor in the Department in 2012, and that part of his role was to provide legal advice to ministers. Mr Schulz gave evidence that, when a Minister requested legal advice relating to Crown lands, the usual practice was that the Minister sent the request to the Ministerial Liaison Officer within the Department, who forwarded the request to the General Manager, Crown Lands Division, who allocated the work to a solicitor. 2. Mr Schulz said that, on 23 May 2012, a policy advisor in the Office of the Deputy Premier sent an email requesting legal advice to a senior project officer in Crown Lands. Around 1 June 2012, the Director of Crown Lands, Native Title and Aboriginal Land Claims, Corporate Legal, forwarded the request for legal advice to Mr Schulz. Mr Schulz then prepared a legal advice and a letter for the Deputy Premier's signature. Mr Schulz communicated the advice on 14 June 2012 in the form of a Ministerial briefing. 3. Mr Schulz gave evidence that the dominant purpose of the Ministerial briefing was to communicate his legal advice to the Deputy Premier, and that he was under an obligation not to disclose the contents of that briefing. 4. Mr Schulz also gave evidence that the senior project officer in Crown Lands requested him to provide further legal advice on 3 July 2012 by email, and that he responded by email. Mr Schulz reported that the policy advisor from the Office of the Deputy Premier sent him an email requesting him to draft a letter on 17 July 2012. He said the emails were confidential and written for the dominant purpose of providing legal advice. 5. Laura Clarke, who was a regional policy officer in the Office of the Hon Andrew Stoner MP between 2011 and 2014, made a statement which was filed by the respondent. During that period, the Hon Andrew Stoner was Deputy Premier. Ms Clarke said that she was asked by the policy advisor to the Deputy Premier to prepare a house folder note as a result of the Premier being asked to review the applicants' matter during an inquiry into Budget Estimates 2013-2014 by the Legislative Council General Purpose Standing Committee No 1. 6. Ms Clarke also gave evidence that she created the house folder note and that the note was included in the Deputy Premier's house folder ahead of a hearing of the Legislative Council General Purpose Standing Committee No 3 in August 2013. RELEVANT LEGISLATION 1. The GIPA Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure (s 5). 2. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information (GIPA Act, s 9(1)). 3. By s 14(1) of the GIPA Act, it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 to that Act. Clause 5(1) of Schedule 1 provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information that would be privileged from production in legal proceedings on the ground of client legal privilege (legal professional privilege), unless the person in whose favour the privilege exists has waived the privilege. 1. Clause 4(c) of Schedule 1 provides: It is to be conclusively presumed that there is an overriding public interest against disclosure of information the public disclosure of which would, but for any immunity of the Crown: …. (c) infringe the privilege of Parliament. 1. In proceedings to review a decision made under the GIPA Act to refuse access to government information in response to an access application, the burden of establishing that the decision is justified lies on the agency: GIPA Act, s 105(1). CLIENT LEGAL PRIVILEGE 1. The respondent claimed that there was an overriding public interest against disclosure of certain information to which it had refused to provide access, because that information would be privileged from production in legal proceedings on the ground of client legal privilege or legal professional privilege (GIPA Act, s 14(1), Sch 1, cl 5(1)). 2. The applicants submitted that the respondent was not "promoting the object or spirit of the Act" and that there was no overriding public interest against the disclosure of this information. They also submitted that the matter should not be decided upon legal precedents alone. They said that the internal legal advice relating to their issue had been funded by the public purse and should be available to the public and to them. They said they were prevented from taking any legal action due to the statute of limitations so would gain no legal advantage. 3. The Tribunal is bound to apply the law. It cannot, as the applicants appeared to suggest, provide information to them merely on the basis of what the applicants described as "commonsense" or "fairness". The circumstance that the applicants are statute-barred from taking legal action, if that be the case, does not affect the application of the rules of legal professional privilege or client legal privilege. Whether common law or statutory test applies 1. As the respondent identified in submissions, there has been some divergence in approach in Tribunal decisions as to whether cl 5(1) of Schedule 1 to the GIPA Act refers to legal professional privilege at common law, or to client legal privilege under the Evidence Act 1995 (NSW). For reasons I gave in Starr v Superannuation Administration Corporation [2015] NSWCATAD 76 at [21]-[28], I am of the view that the correct approach to determining whether cl 5(1) of Sch 1 to the GIPA Act is engaged is to consider the application of the provisions of the Evidence Act 1995 concerning client legal privilege (see also Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 and Colefax v Department of Education and Communities [2013] NSWADT 75). Whether information would be privileged from production in legal proceedings 1. Section 118 of the Evidence Act 1995 provides as follows: 118 Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. 1. The term "client" is defined in s 117 of the Evidence Act 1995 to include, relevantly: a person or body who engages a lawyer to provide legal services or who employs a lawyer (including under a contract of service), … (c) an employer of a lawyer if the employer is: (i) the Commonwealth or a State or Territory, or (ii) a body established by a law of the Commonwealth or a State or Territory,… 1. Section 118 of the Evidence Act 1995 is to be considered through the lens of s 131A of that Act, since cl 5(1) of Schedule 1 to the GIPA Act refers to "information that would be privileged from production in legal proceedings on the ground of client legal privilege" (emphasis added). Section 131A makes provision for a court to determine whether information is privileged from production in legal proceedings, as follows: 131A Application of Part to preliminary proceedings of courts (1) If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. 1. Thus, s 118 of the Evidence Act 1995 is to be read with necessary modifications as required by s 131A, for the purposes of considering the application of cl 5(1) of Schedule 1 to the GIPA Act. 2. The privilege in s 118 only applies if a confidential document or communication is prepared or made for the dominant purpose of a lawyer providing legal advice to the client. The evidence establishes that Mr Schulz is a "lawyer" within s 118 and that his advice was confidential. It is apparent from the advice he prepared (at pages 9-12 of the respondent's materials), and from Mr Schulz's affidavit, that it was prepared for the dominant purpose of him providing legal advice. I also accept that summaries of the advice and documents recording instructions to provide legal advice attract the privilege in s 118(c), if they are prepared or made for the purpose of providing advice to a "client". 3. It remains to be considered whether the advice and other documents were prepared for the dominant purpose of providing advice to a "client" as defined. 4. The respondent initially identified the client, parenthetically, as being "the Department, 'client' being defined to include a body who engages a lawyer to provide legal services or who employs a lawyer and an employee or agent of a client". In further submissions, the respondent said that Mr Schulz's client was the Department, "because the Department forms part of the State of NSW and is his employer within the meaning of s. 117(1)(c)(i) of the Evidence Act". The respondent submitted that, as a senior solicitor in the Department, Mr Schulz was an officer employed in the Department in accordance with s 7(1)(a) of the Public Sector Employment and Management Act 2002 (NSW) (an Act which was in force in 2012 but which is now repealed). 5. In 2012, the Department (known in May, June and July 2012 as the Department of Trade and Investment, Regional Infrastructure and Services) was a Division of the Government Service (Public Sector Employment and Management Act 2002, s 4C, Sch 1). The Government of New South Wales had power to employ staff in a Division (Public Sector Employment and Management Act 2002, s 4B). The statutory language indicates that it was the Government of New South Wales, and not the Department, which was the employer of officers including Mr Schulz (Public Sector Employment and Management Act 2002, ss 4A(1), 4B). 6. It is then necessary to consider whether Mr Schulz's employer, the Government of New South Wales, was Mr Schulz's "client" within paragraph (c) of the definition in s 117(1) of the Evidence Act 1995. If the employer is the State, it is a "client" within that definition. The term "Government of New South Wales" was not defined in the Public Sector Employment and Management Act 2002 or in s 21 of the Interpretation Act 1987 (NSW). In s 3 of the Crown Proceedings Act 1988 (NSW), "Crown" is defined to mean the Crown in right of New South Wales, and includes the Government of New South Wales. If the Crown sues or is sued, it is to be named as "State of New South Wales" in proceedings in any competent court (Crown Proceedings Act 1988, ss 4, 5). In my view, there can be no doubt that Mr Schulz's employer, the Government of New South Wales, was the "State" within paragraph (c) of the definition of "client" in s 117 of the Evidence Act 1995. 7. The question then arises as to whether Mr Schulz's advice was prepared for the State (being a "client") for the purposes of s 118 of the Evidence Act 1995. 8. The respondent did not directly address the question of whether the Ministerial Briefing Mr Schulz prepared was prepared for the dominant purpose of providing advice to the Department. In my view, it was not. 9. Mr Schulz's evidence was that the "dominant purpose of the Ministerial Briefing was to communicate my legal advice to the Deputy Premier". Thus, the evidence establishes that he prepared the Ministerial Briefing for the dominant purpose of providing advice to the Deputy Premier. For reasons given earlier, the advice will have been prepared for a "client" within s 118 of the Evidence Act 1995 if the Deputy Premier may, in this context, be identified with the State of New South Wales. 10. The Premier and other Ministers of the Crown for the State are appointed by the Governor from among the members of the Executive Council (Constitution Act 1902 (NSW), s 35E). Section 35B of the Constitution Act 1902 continues the Executive Council "to advise the Governor in the government of the State." 11. In Mann v Carnell (1999) 201 CLR 1, the High Court considered whether there had been a waiver of legal professional privilege, under the common law, when advice prepared for the Australian Capital Territory was provided by its Chief Minister to a member of Parliament. Legal advice had been given to the Territory government in relation to legal proceedings which settled. The advice was subsequently provided, by the Chief Minister, to a member of Parliament to enable him to reply to a complaint about the government's conduct in those proceedings. The High Court held that this did not constitute a waiver of privilege. The joint majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) commented that it was likely that the Chief Minister represented the Territory for the purposes of receiving the advice from the lawyers and the provision of the advice to the Chief Minister did not constitute a waiver of privilege (at 9-10 [16]). Thus, they contemplated that the Chief Minister was, in effect, acting on behalf of the State. Their Honours also found that there was nothing inconsistent with the purpose of the privilege, being to protect the Territory from subsequent disclosure of the legal advice it received, in conveying the terms of that advice on a confidential basis to a member of parliament who wished to consider the reasonableness of the Territory's conduct in relation to the litigation (at 15 [35]). 12. Kirby J, who formed part of the majority, expressed the view that "disclosure to a legislator of the Territory performing his functions as such is not disclosure to a third party or stranger" (at 154 [48]). This suggests that Kirby J held the view that the member of Parliament was to be equated with the Territory for the purposes of the law of privilege. 13. Mann v Carnell (1999) 201 CLR 1 is not determinative of the question of who is the client under the Evidence Act 1995; however, it gives support to the concept that a Minister or member of Parliament may be treated as the State for the purposes of the law of privilege when the Minister or member of Parliament receives or communicates advice in an official capacity and for a purpose consistent with the purpose of the privilege. 14. On balance, I am satisfied that, in providing his advice to the Deputy Premier, Mr Schulz was providing it to the State of New South Wales. As a member of the Executive Council, the Deputy Premier's role was to advise the Governor in the government of the State. He was seeking the advice for the purposes of performing his Ministerial role. Accordingly, the information contained in the Ministerial Briefing at pp 9 to 12 of the respondent's materials, and the related information at pp 19 and 43 of the respondent's materials, is subject to client legal privilege pursuant to s 118 of the Evidence Act 1995. 15. The redacted information at p 86 of the respondent's materials is a confidential request for advice from the policy advisor in the Office of the Deputy Premier to the officer at Crown Lands (both of whom are referred to earlier in these reasons). I am satisfied, from the materials provided, that the request is made on behalf of the Deputy Premier, and that the Deputy Premier is seeking legal advice from a lawyer in the Department. The part of the email conveying the request is thus a confidential document prepared by a person for the dominant purpose of a lawyer providing legal advice to the client within s 118(c) of the Evidence Act 1995 and is subject to client legal privilege. 16. The redacted information at pp 93-95 of the respondent's materials is information which is confidential, prepared by Mr Schulz or another person, for the dominant purpose of providing legal advice to the Deputy Premier. For the reasons given above, s 118 of the Evidence Act 1995 applies. 17. I am satisfied that there is a conclusive presumption that there is an overriding public interest against disclosure of the redacted information at pp 9-12, 19, 43, 86 and 93-95 of the respondent's materials, which constitutes or concerns Mr Schulz's advice, because it would be privileged from production in legal proceedings on the ground of client legal privilege (GIPA Act, s 14(1), Sch 1, cl 5(1)). There is nothing to indicate that that privilege has been waived. 18. The above conclusion also applies to the information where it is duplicated in the respondent's materials, at pages as indicated by the respondent in submissions. 19. For these reasons, the respondent has discharged the onus of establishing that the decision to refuse access to the information referred to above is justified (GIPA Act, s 105(1)). 20. The redacted information at p 119 of the respondent's materials is not, in my view, part of a confidential document prepared, or a confidential communication made, for the dominant purpose of Mr Schulz providing legal advice to the State. It is, as indicated by the respondent in his submissions, a request to draft a letter. As is apparent from information provided to the applicants appearing immediately before the redacted material on p 119, the proposed letter is to Mr Tebbutt. 21. The respondent has not discharged the onus of justifying the decision to refuse the applicants access to this information. Access to the information should therefore be provided to the applicants. PARLIAMENTARY PRIVILEGE 1. The respondent submitted that certain information to which it had refused access was subject to Parliamentary privilege. That information is contained in an email concerning a house folder note, and in the house folder note itself. As appears from Ms Clarke's evidence, the house folder note was prepared for the Deputy Premier to use when appearing before a Parliamentary standing committee. 2. The applicants submitted that the "claims for Parliamentary Privilege are not relevant as it would also be of an historical nature since the Premier and the Deputy Premier referred to by the respondent no longer hold those positions or the Ministerial posts that they also held at the relevant time". This circumstance does not, however, affect the validity of the respondent's parliamentary privilege claim, as a matter of law. 3. The Bill of Rights 1688 (Imp) provides in article 9 that "[t]he freedom of speech and debates or proceedings in Parliament ought not be impeached or questioned in any Court or place out of Parliament". The Bill of Rights 1688 is declared to have been in force since 25 July 1828 in New South Wales by s 6 of the Imperial Acts Application Act 1969 (NSW). 4. The respondent relied upon cases interpreting and applying s 16(2) of the Parliamentary Privileges Act 1987 (Cth), which defines "proceedings in Parliament" for the purposes of article 9 of the Bill of Rights 1688. Section 16(2) provides that acts done "for purposes of or incidental to, the transacting of the business of a House or of a committee" are part of "proceedings in Parliament" within article 9 of the Bill of Rights. As the respondent acknowledged, the Commonwealth provision does not apply in New South Wales. The respondent submitted that "the cases on s 16 are still highly relevant" because the principles underlying s 16(2) are the same as those underlying the common law. 5. The cases applying s 16(2) of the Parliamentary Privileges Act 1987 (Cth) must be treated with some caution when determining whether documents prepared for the purposes of a parliamentary committee are subject to Parliamentary privilege in New South Wales. It is first necessary to determine what the common law position is in New South Wales. In Sportsbet Pty Ltd v State of New South Wales (No 3) (2009) 262 ALR 27; [2009] FCA 1283, a case on which the respondent relied, Jagot J said of the doctrine of parliamentary privilege at [19]: "The state referred to s 16 of the Parliamentary Privileges Act 1987 (Cth) as a useful guide to the scope of the doctrine in NSW. Section 16, however, was a legislative response to the limited operation the courts gave to Art 9 of the Bill of Rights in R v Murphy (1986) 5 NSWLR 18; 64 ALR 498 and may well expand the scope of the common law privilege: see Mees [Mees v Road Corporation (2003) 128 FCR 418; [2003] FCA 306] at [84] and Rowley v O'Chee [2000] 1 Qd R 207 at 219; (1997) 150 ALR 199 at 207 (Rowley)." 1. In the decision of the New South Wales Supreme Court referred to by Jagot J, R v Murphy (1986) 5 NSWLR 18, the President of the Senate appeared by leave as amici curiae in a criminal trial. It was submitted on behalf of the President that witnesses could not be cross-examined in relation to the evidence which they had given before two Senate Select Committees, without breach of parliamentary privilege. It was accepted by both the Crown and the accused that the proceedings of a Senate Select Committee are included within the phrase "proceedings in parliament" in article 9 of the Bill of Rights 1688. As Hunt J described the applicant's position (at 27), it was that the effect of article 9 is that whatever is said in parliament may not be commented upon, used to draw inferences or conclusions, analysed or made the basis of cross examination or submission and no comparison may be made between what is said by someone inside parliament and what is said by him out of it. 2. Hunt J rejected what he described as the applicants' "very wide interpretation of art 9" (at 28), commenting (at 29): "The proper interpretation to be placed upon art 9 — in the sense of the width to be accorded to the privilege which it declares — necessarily must be one which recognises the freedom given by the common law to every citizen to express publicly his honest opinion concerning the conduct of members of parliament, no matter to what extent that opinion may impeach or question that conduct." 1. His Honour set out his own, much more restrictive interpretation of article 9 (at 30): "…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. Such an interpretation is consistent with the relevant mischief which the Bill of Rights was enacted to remedy — namely, the previous availability in the courts of process whereby legal consequences were visited upon members of parliament for what they had said and done in parliament." 1. Hunt J concluded that the witnesses in the trial could be cross examined about what they had said in the Senate Select Committee proceedings. Burns J has usefully summarised the effect of Hunt J's judgment in Slipper v Magistrates Court of the ACT (2014) 179 ACTR 1 at [42], as follows: "…he ruled that without breach of the privilege of freedom of speech guaranteed by Art 9 of the Bill of Rights, witnesses at a trial could be cross-examined in relation to evidence they gave to a senate select committee, and that this evidence could be the subject of comment or used by the jury to draw inferences or conclusions. Hunt J held that the only protection given by Art 9 was to prevent court or similar proceedings having legal consequences against a member of parliament or a witness before a parliamentary committee where those legal consequences would have the effect of preventing that member (or committee witness) exercising their freedom of speech in parliament (or before a committee) or of punishing them for having done so." 1. The Privy Council declined to follow R v Murphy (1986) 5 NSWLR 18 in Prebble v Television New Zealand Ltd [1994] 3 NZLR 1; [1995] 1 AC 321. Lord Browne-Wilkinson, delivering the judgment of their Lordships, gave the following reasons for his view that Hunt J's decision was incorrect ([1994] 3 NZLR 1 at 8): "First, his views were in conflict with the long line of dicta that the Courts will not allow any challenge to what is said or done in Parliament. Second, as Hunt J recognised, his decision was inconsistent with the decision of Browne J in Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 (subsequently approved by the House of Lords in Pepper v Hart) and Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1, in both of which cases it was held that it would be a breach of privilege to allow what is said in Parliament to be the subject-matter of investigation or submission. Finally, Hunt J based himself on a narrow construction of art 9, derived from the historical context in which it was originally enacted. He correctly identified the mischief sought to be remedied in 1688 as being, inter alia, 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. From this he deduced the principle that art 9 only applies to cases in which a Court is being asked to expose the maker of the statement to legal liability for what he has said in Parliament. This view discounts the basic concept underlying art 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." 1. The South Australian Supreme Court (Debelle J) determined not to follow R v Murphy (1986) 5 NSWLR 18 in Rowan v Cornwall (No 5) [2002] SASC 160, observing at [110], that "[o]ther decisions suggest that statements in the House cannot be questioned in any form at all". The Victorian Court of Appeal also doubted the correctness of R v Murphy (1986) 5 NSWLR 18 in R v Theophanous (2003) 141 A Crim R 216 (a case which concerned the application of the Parliamentary Privileges Act 1987). 2. In New South Wales, Carruthers J rejected Hunt J's interpretation of article 9 in R v Jackson; R v Hakim (1987) 8 NSWLR 116 at 121. There has been surprisingly little consideration of R v Murphy (1986) 5 NSWLR 18 in New South Wales courts since 1987. However, in Stewart v Ronalds (2009) 76 NSWLR 99, a decision of the New South Wales Court of Appeal, Hodgson JA, with whom Handley AJA agreed on this issue, considered (in obiter dicta) the interpretation of article 9 of the Bill of Rights 1688 and cast doubt on the correctness of R v Murphy (1986) 5 NSWLR 18. His Honour referred (at 123 [116]) to "a very helpful discussion of" article 9 of the Bill of Rights 1688 by Lord Woolf MR delivering the judgment of the Court of Appeal in Hamilton v Al Fayed [1999] 3 All ER 317; EMLR 501 and quoted extensively from this judgment. In part of the judgment cited by Hodgson JA, Lord Woolf himself quoted from the judgment of Lord Browne-Wilkinson in Prebble v Television New Zealand Ltd [1994] 3 All ER 407 at 415; [1995] 1 AC 321 at 333–334, where his Lordship rejected the "narrow construction of art 9" adopted by Hunt J and also rejected Hunt J's view "that art 9 only applies to cases in which a court is being asked to expose the maker of the statement to legal liability for what he has said in Parliament". Lord Browne-Wilkinson described "the basic concept underlying art 9" as being: "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." 1. Hodgson JA made the following comments (at 124 [119]-[120]) about the effect of Lord Woolf's judgment in Hamilton v Al Fayed [1999] 3 All ER 317: "Lord Woolf's discussion suggests that what the privilege protects from criticism in courts is anything said or done in the course of Parliamentary proceedings, and it does not protect things said or done outside such proceedings merely because they may be repeated in the course of Parliamentary proceedings (although the occasion of repetition would be protected). If the preparation of a report is directed by Parliament itself or a committee of Parliament, and the report is produced to Parliament or the committee in the first instance, then it seems clear that the report would be protected." 1. In light of the decision in R v Jackson; R v Hakim (1987) 8 NSWLR 116, and the obiter comments of Hodgson JA in Stewart v Ronalds (2009) 76 NSWLR 99, with which Handley JA agreed, I am of the view that R v Murphy (1986) 5 NSWLR 18 no longer represents the common law in New South Wales. 2. The respondent submitted that the principles underlying both s 16(2) of the Parliamentary Privileges Act 1987 and the common law include ensuring that officers preparing briefings and draft briefings to Parliamentarians are not impeded in their preparation and that the quality of information available to Parliament is not compromised. In support of these propositions, they relied upon Re OPEL Networks Pty Ltd (in liq) (2010) 77 NSWLR 128, a case concerning the application of the Parliamentary Privileges Act 1987. In that case, Austin J said at 134 [118]: It seems to me necessarily true, and not dependent upon the evidence of the 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 [in Rowley v O'Chee [2000] 1 Qd R 207] (and see Mees v Roads Corporation (2003) 128 FCR 418 at 442 [75]–[79] per Gray J). 1. In Tziolas v NSW Department of Education and Communities [2012] NSWADT 69 at [37], the Administrative Decisions Tribunal (Isenberg JM) considered the principles Austin J referred to above in Re OPEL Networks Pty Ltd to be "relevant to the scope and application of clause 4(c) of schedule 1 of the GlPA Act". 2. The respondent also referred to Sportsbet Pty Limited v State of New South Wales (No 3) [2009] FCA 1283 at [21], in which Jagot J held that a document described as "House Notes," created by a public servant for a Minister's use in Parliament, was subject to Parliamentary privilege. 3. The information in issue in these proceedings is contained in documents which were prepared for the Deputy Premier's use when appearing before a Legislative Council Standing Committee. In my view, the proceedings of the Legislative Council Standing Committee entail "debates or proceedings in Parliament" within article 9 of the Bill of Rights 1688. It was accepted in R v Murphy (1986) 5 NSWLR 18 that the proceedings of a Senate Select Committee are included within the phrase "proceedings in parliament". In Prebble v Television New Zealand Ltd [1994] 3 All ER 407, in a passage cited with approval by Hodgson JA in Stewart v Ronalds (2009) 76 NSWLR 99, Lord Browne-Wilkinson described the "basic concept underlying art 9" as being "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." This is also consistent with Austin J's remarks in Re OPEL Networks Pty Ltd (in liq) (2010) 77 NSWLR 128, which are cited above. 4. For these reasons, I accept that the information redacted at pp 205 and 207 of the respondent's material, being an email containing information to include in a house folder note, and a house folder note, is subject to Parliamentary privilege. The public disclosure of that information would, but for any immunity of the Crown, infringe the privilege of Parliament within cl 4(c) of Sch 1 to the GIPA Act. Accordingly, there is a conclusive presumption that there is an overriding public interest against disclosure of the information and the respondent has discharged his onus of justifying the decision to refuse access to it (GIPA Act, ss 14(1), 105(1), Sch 1, cl 4). I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 12 May 2015