CITATION: Law Society Northern Territory v Legal

Practitioners Disciplinary Tribunal

(NT) & Anor [2020] NTSC 79

PARTIES: LAW SOCIETY NORTHERN

TERRITORY

v

LEGAL PRACTITIONERS

DISCIPLINARY TRIBUNAL (NT)

and

ALISTAIR WYVILL SC

TITLE OF COURT: SUPREME COURT OF THE

NORTHERN TERRITORY

JURISDICTION: SUPREME COURT exercising Territory

jurisdiction

FILE NO: 2020-03306-SC

DELIVERED: 11 December 2020

HEARING DATE: 3 December 2020

JUDGMENT OF: Mildren AJ

CATCHWORDS:

CONSTITUTIONAL LAW – Parliamentary privilege – scope of “purposes

of or things incidental to the transacting of the business of the Assembly” –

whether legal practitioner’s advice regarding statements to be made in

parliament protected by parliamentary privilege – whether privilege attaches

to communications from a legal practitioner to a Parliamentarian – whether

absence of correlation between advice sought by Parliamentarian and

response given fatal to claim for parliamentary privilege –– scope of

s 6(2) Legislative Assembly (Powers and Privileges) Act 1992 (NT)

ADMINISTRATIVE LAW – Jurisdictional error – non-jurisdictional error

on the face of the record – admissibility of evidence

Bill of Rights 1688 (Imp), Article 9

Legal Profession Act 2006 (NT), Part 4.11

Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 3, s 4, s 6

Parliamentary Privileges Act 1987 (Cth) s 16

Supreme Court Act 1979 (NT) s 14, s 18, s 20

ACT v SMEC Australia Pty Ltd [2018] ACTSC 252, Carrigan v Cash [2016]

FCA 1466, Craig v South Australia (1995) 184 CLR 16 , Erglis v Buckley

[2005] QCA 404, Independent Commission of Corruption v Cuneen & Ors

[2015] HCA 14; 256 CLR 14, Kirk v Industrial Court (NSW) [2010] HCA;

(2010) 239 CLR 531, Obeid v R [2015] NSWCCA 309, OPEL Networks Pty

Ltd (In Liq) [2010] NSWSC 142, Project Blue Sky Inc v Australian

Broadcasting Authority (1998) 194 CLR 355, R v Grassby (1991) 55 A Crim

R 419, Rowley v Armstrong [2000] QSC 88, Rowley v O’Chee [2001] 1 Qd R

207, Sportsbet Pty Limited v State of New South Wales (No 3) [2009] FCA

1283, referred to

REPRESENTATION:

Counsel:

Plaintiff: A Moses SC with K Anderson

First Defendant: No appearance

Second Defendant: J Kirk SC with M Caristo

Solicitors:

Plaintiff: Hicksons Lawyers

First Defendant: Solicitor for the Northern Territory

Second Defendant: Squire Patton Boggs

Judgment category classification: A

Judgment ID Number: Mil20565

Number of pages: 32

IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

Law Society Northern Territory v Legal Practitioners Disciplinary Tribunal

(NT) & Anor [2020] NTSC 79

No. 2020-3306-SC

BETWEEN:

LAW SOCIETY NORTHERN

TERRITORY

Plaintiff

AND:

LEGAL PRACTITIONERS

DISCIPLINARY TRIBUNAL (NT)

First Defendant

AND:

ALISTAIR WYVILL SC

Second Defendant

CORAM: MILDREN AJ

REASONS FOR JUDGMENT

(Delivered 11 December 2020)

Introduction

[1] This is an application brought by Originating Motion by the Plaintiff

seeking orders in the nature of certiorari and prohibition against the First

Defendant, the Legal Practitioners Disciplinary Tribunal (NT) (the

Tribunal), with respect to two decisions of the Tribunal dismissing

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complaints made against the Second Defendant for alleged unprofessional

conduct or alternatively, unsatisfactory professional conduct contrary to

s 464 of the Legal Profession Act 2006 (NT). The First Defendant also ruled

as inadmissible a number of documents which the Plaintiff intended to

tender into evidence (the Evidentiary Rulings). The Plaintiff seeks

declaratory relief in respect of these documents and an order prohibiting the

Tribunal from making a final determination of the Disciplinary Application

without reconsideration of the Evidentiary Rulings.

[2] The Tribunal has made a submitting appearance and was excused from

attendance at the hearing.

Background facts

[3] In July 2012, the Cabinet of the Northern Territory Government approved

the offer of a Crown Lease over land known as the Stella Maris site to

Unions NT. At the time, Ms Delia Lawrie was Deputy Chief Minister and a

member of the Legislative Assembly. Ms Lawrie was involved in the Stella

Maris site and had worked towards the goal of the lease being offered to

Unions NT. On 3 August 2012 the documents offering and setting out the

conditions of the lease were signed by the then Minister for Lands and

Planning, Mr Gerald McCarthy (Mr McCarthy). A general election for the

Northern Territory Legislative Assembly was to take place on 25 August

2012. The Government entered into caretaker mode on 6 August 2012.

[4] The election resulted in a change of Government. The new Government

opposed the lease which was ultimately not granted to Unions NT. In

December 2013 the Government commissioned an inquiry into the

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circumstances of the purported decision to offer the lease and associated

matters (the Inquiry). Mr John Lawler was appointed as the Commissioner

of the Inquiry under the provisions of the Inquiries Act 1945 (NT).

[5] Ms Lawrie and Mr McCarthy were summoned to appear at the Inquiry to

give evidence and to produce documents. At that time, Ms Lawrie was

Leader of the Opposition and Mr McCarthy was the Deputy Leader. The

Second Defendant, who practised as a barrister at the independent bar, acted

as counsel for Ms Lawrie and Mr McCarthy at the Inquiry, instructed by a

firm of solicitors.

[6] Hearings before the Inquiry took place over a number of days between 12

February 2014 and 1 April 2014. On 26 May 2014 the Commissioner

presented his report to the Administrator. The report was tabled in the

Legislative Assembly on 19 June 2014. It contained a number of adverse

findings concerning Ms Lawrie’s conduct.

[7] On 19 May 2014, Mr Michael Gleeson, Ms Lawrie’s then Ch ief of Staff,

sent an email to the Second Defendant, to which he replied on the same day.

These emails formed the basis of Allegation One in the proceedings before

the Tribunal. In short, the Tribunal found that the emails forming the basis

of the allegation were inadmissible because they were subject to

parliamentary privilege, that it would be unlawful for the Tribunal to receive

them into evidence and dismissed Allegation One on 5 August 2020. The

Plaintiff contends that that decision amounted to jurisdictional error on the

part of the Tribunal and seeks an order quashing that decision.

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[8] Subsequently, the Tribunal sought submissions from the parties concerning

Allegation Three. This allegation is that on 19 June 2014 at or shortly before

10:04am, the Second Defendant telephoned Mr Gleeson advising that either

Ms Lawrie or Mr McCarthy should make a statement in the Assembly, in the

event that Commissioner’s Report, when tabled , contained adverse findings

about either of them, stating that those findings came as a complete surprise

when it is alleged that the Second Defendant knew that this assertion would

be false or alternatively, was reckless as to whether it was true or false.

[9] The evidence relating to the telephone call was contained in an email sent on

19 June 2014, and the particulars of the allegation, relied on an email chain

starting on 14 February 2014 and ending on 19 June 2014, as well as other

documents, the substance of which were set out in the affidavit of Fiona

Kepert sworn on 2 October 2020 as contained in Annexure A thereto at

paragraphs 3.1 to 3.30.

[10] After hearing submissions from the parties, on 4 September 2020 the

Tribunal held that the telephone communication by the Second Defendant

was protected by parliamentary privilege and dismissed this allegation.

[11] Following its decision on 4 September 2020, the Tribunal made a number of

oral rulings during a hearing from 7 September to 11 September 2020

rejecting the tender by the Plaintiff of various documents (the Excluded

Documents) into evidence (collectively, the Evidentiary Rulings). It is

common ground that the Evidentiary Rulings were made on the basis that

receipt of the Excluded Documents into evidence would be unlawful as a

5

breach of parliamentary privilege for the same reasons given by the Tribunal

in its decision in relation to the Allegation One.

The Tribunal

[12] The Tribunal is established by s 669 of the Legal Profession Act 2006 (NT).

Membership of the Tribunal is provided for by s 670. The Chairperson of the

Tribunal may make rules for the practice and procedure of the Tribunal and

may issue practice directions: s 677A. If a disciplinary application is

brought in the Tribunal, the Tribunal must conduct a hearing into each

allegation particularised in the application: s 517. The Tribunal is bound by

the rules of evidence in conducting the hearing: s 521. The parties to the

application are the Law Society and the Australian legal practitioner against

whom the complaint has been made: s 522 (1). A complainant may also be

granted leave to appear as may any other person whom the Tribunal is

satisfied that it is appropriate to appear: s 522 (3). Parties and persons

granted leave to appear have the right to be heard and may be represented by

an Australian legal practitioner: s 522(5). The Tribunal has the power to

make a variety of orders if it finds the legal practitioner guilty, including an

order recommending that the name of the legal practitioner be removed from

the Roll, and order that the legal practitioner’s Practising Certificate be

suspended, or an order that the legal practitioner pay a fine as well as other

relief: s 525. Oddly, the power to dismiss a complaint is not mentioned but

it is common ground that such a power must be inferred. The Tribunal has

the power to make interlocutory or interim orders before making its final

decision: s 526 (1). The Tribunal may also order costs: s 529. If the legal

6

practitioner is found guilty he or she has a right to appeal to the Supreme

Court: s 533 read with s 525. There is no right of appeal if the complaint is

dismissed, nor against an interlocutory order.

The relief sought

[13] The jurisdiction of this Court to grant the relief sought is not in dispute.

This Court has long had the power to grant certiorari, prohibition or what is

now called judicial review. So much is clear from s 14(1)(c) of the Supreme

Court Act 1979 (NT). Order 56 of the Supreme Court Rules provides for the

procedure in these circumstances to be commenced by Originating Motion.

[14] The Tribunal is not a Court. In Craig v South Australia1 the High Court

discussed the types of errors which are amenable to review by the former

Writ of Certiorari. The starting point was that a distinction is made between

inferior courts and administrative tribunals. In relation to the latter, the

Court said2:

At least in the absence of a contrary intent in the statute or other

instrument which established it, an administrative tribunal lacks

authority either to authoritatively determine questions of law or to

make an order or decision otherwise than in accordance with law…

…If such an administrative tribunal falls into error of law which

causes it to identify a wrong issue, to ask itself the wrong question,

to ignore relevant material, to rely on irrelevant material or, at least

in some circumstances, to make an erroneous finding or to reach a

mistaken conclusion , and the tribunal’s exercise or purported

exercise of power is thereby affected, it exceeds its authority or

powers. Such an error of law is jurisdictional error which will

invalidate any order or decision by the tribunal which reflects it.

1 (1995) 184 CLR 163. 2 At p179.

7

[15] Certiorari will lie if there is jurisdictional error, or error of law on the face

of the record, even in the case of an error by a Tribunal. The Plaintiff

contends that the Tribunal erred in finding that the documents upon which it

sought to rely were subject to parliamentary privilege, and that this was an

error which went to its jurisdiction. Alternatively it was a non-jurisdictional

error on the face of the record.

[16] The Plaintiff’s argument is that the Tribunal wrongly determined on the

facts of the case that the evidence was inadmissible . This led to the two

allegations being dismissed as there was no evidence left to try those

matters. Thus, it was put that the error was jurisdictional in each case,

relying on Kirk v Industrial Court (NSW)3. In that case, the former Industrial

Relations Commission of New South Wales (which at the relevant time was

a tribunal) convicted Mr Kirk of occupational and safety offences. The High

Court held that the Commission made two errors of law which amounted to

jurisdictional error. The first error was that the Commission failed to

properly construe the section of the offence with which the appellant had

been charged, with the result that there was no evidence to support the

charge. The second error was that the Commission permitted the prosecution

to call the appellant as a witness in which the appellant was one of the

defendants. Although that was not a case where the Commission wrongly

rejected admissible evidence which amounted to jurisdictional error, I

accept that if the Tribunal wrongly construed the relevant statutory

3 [2010] HCA 1; (2010) 239 CLR 531 at [67] -[68].

8

provisions which led to the exclusion of evidence relevant to its

determination of the complaint in this case, it is subject to judicial review.

The Court also said that ordinarily if relief is granted on the ground of

jurisdictional error, it is unnecessary to consider whether there is error on

the face of the record4, although that might not always be the case if there is

no jurisdictional error. The Court also confirmed that the record does not

ordinarily include the reasons of the Tribunal unless the Tribunal has chosen

to incorporate its reasons5. I am able to find that this has occurred in this

case. As was pointed out by the High Court in Craig6 a merely introductory

or incidental reference to the reasons for the decision does not produce the

consequence that the whole or part of the reasons somehow both become

part of both the formal order and “the record” of a particular court or

tribunal. In the present case, the orders of the Tribunal and the reasons were

in both cases incorporated into the same document. That being so, the result

will likely be the same in this case whether there is jurisdictional error or

error of law on the face of the record.

Parliamentary Privilege

[17] Article 9 of the Bill of Rights 1688 (Imp) provides:

That the Freedom of Speech and Debates or proceedings in Parlyament

ought not be impeached or questioned in any Court or Place out of

Parlyament.

[18] Section 6 of the Legislative Assembly (Powers and Privileges) Act 1992

(NT) (the LAPP Act) provides, relevantly:

4 Ibid, fn 3 at [78]. 5 Ibid fn 3, at [83]. 6 Craig v South Australia (1995) 184 CLR 163 at 181-182.

9

(1) For the avoidance of doubt, it is hereby declared and enacted that

the provisions of article 9 of the Bill of Rights, 1688 apply in

relation to the Assembly and, as so applying, shall be taken to

have, in addition to any other operation, the effect of the

subsequent provisions of this section.

(2) For the purpose of the provisions of article 9 of the Bill of Rights,

1688 as applying in relation to the Assembly, and for the purposes

of this section proceedings in Parliament means all words spoken

and acts done in the course of, or for the purposes of or incidental

to the transacting of the business of the Assembly or of a

committee, and without limiting the generality of the foregoing

includes:

(c) the preparation of a document for the purposes of or

incidental to the transacting of any such business;

(3) In proceedings in a court or tribunal, it is not lawful for evidence

to be tendered or received, questions asked or statements,

submissions or comments made, concerning proceedings in the

assembly, by way of, or for the purpose of:

(a) questioning or relying on the truth, motive, intention or good

faith of anything forming part of those proceedings in the

Assembly;

(b) otherwise questioning or establishing the credibility, motive,

intention of good faith or a person; or

(c) drawing, or inviting the drawing of, inferences or conclusions

wholly or partly from anything forming part of those

proceedings in the Assembly.

The reasons of the Tribunal relating to the first allegation

[19] After setting out the background facts which are referred to in paragraphs

[3] to [9] above, the Tribunal set out the particulars of the charge, which

consisted of the emails referred to in the two paragraphs below.

[20] On 19 May 2014 at 9:33am, Mr Michael Gleeson, who was at that time the

Chief of Staff to Ms Lawrie, sent an email to the Second Defendant

concerning statements made by Adam Giles, who at the time was the Chief

10

Minister [and leader] of the Country Liberal Party [Government] . That email

said:

Hi Alistair,

In the last week’s censure debate Giles made these comments:

Mr GILES: You cannot even accept your name being presented this

way. My challenge to the Leader of the Opposition, the member for

Karama, and the members for Arnhem, Fannie Bay, Johnston and

Wanguri is quite simple. If you believe your claims to be true, take

them outside and made (sic) them public. If you do not have the

courage to take them outside, then clearly you do not believe these

claims to be true and you are simply playing politics in coward’s

castle. If you are true to your word about elements of corruption and

wanting enquiries- I challenge you, member for Barkly, you misled

the Stella Maris Inquiry…

Mr MCCARTHY: Will you call me Gerry Obeid outside? Bring your

Hansard.

Madam SPEAKER: Member for Barkly!

Mr GILES: I ask you to step aside from your position for misleading

an enquiry under the Inquiries Act, which has been proven to be true

and correct. Should you believe the professional standards of politics

and inquiries, I ask you to resign because you misled the Stella

Maris Inquiry, which you admit and for which you were found guilty.

Clearly the Chief Minister’s assertion is untrue - the Member for Barkly

has not be (sic) found guilty of anything and the Chief Minister’s

comments are highly prejudicial to the Inquiry’s findings and

recommendations.

Maybe the Chief Minister has received a final report which has already

drawn the findings which he asserts.

In the event that he hasn’t, one conclusion is that he has used

parliamentary privilege to pressure or influence the commission in the

preparation of its final report.

In my view even though the submission may not have been closed, this

would justify a strong letter to the Commissioner and could be used in

the debates in the Assembly.

What do you think, Alistair?

[21] At 12:02pm on that day, the Second Defendant sent an email to Mr Gleeson

in the following terms:

11

Hi Mike,

I would think the best point to make- in parliament- is that Giles’

statements suggest he has been provided with a draft of the report

apparently for his review and approval. Getting this on the record in

the House will help with labelling this the CLP’s report. I would prefer

to adopt the position that this process never had any independence from

the beginning, they picked Lawler because they knew he would do what

he was asked to do and this just confirms that this whole process was a

set up from the beginning.

Writing to Lawler suggests that he has an independence to be

influenced! What do you think?

Dissenting report underway!

[22] The Tribunal said:

Ms Lawrie’s Chief of Staff in substance requested Mr Wyvill’s

thoughts on what should be done in response to Mr Giles’ words. Mr

Wyvill replied with what he thought was the best point to make in

Parliament and said that getting it on the record in the House would

help.

[23] The Plaintiff’s submission to the Tribunal referred to the decision of White J

in Carrigan v Cash7 which highlighted the absence in the present matter of a

clear causal connection between the advice of the Second Defendant and the

business of the Assembly. The Tribunal held that it did not accept that a

causal connection was essential for the purposes of s 6(2) of the LAPP Act

although the existence of a causal connection may well be relevant.

Nevertheless, the Tribunal found that there was a clear causal connection

between the advice of the Second Defendant and the business of the

Assembly, observing that “what was said in the Assembly is the explanation

for the Respondent’s advice being sought and the advice he gave included

7 [2016] FCA 1466.

12

what he thought was the best point to make in Parliament and that getting it

on the record of the House would help”. The Tribunal again dealt with this

point subsequently in relation to a submission that further evidence was

needed before the Tribunal could be satisfied that the advice proffered by

the Second Defendant was for the purpose of or incidental to transacting the

business of the Assembly. The Tribunal said:

We disagree. The Applicant was given leave to file any material on

which it relied in response to the Respondent’s written submission on

the parliamentary privilege issues and did so by referring the Tribunal

to portions of one of the Respondent’s affidavits, emails and letters.

This material did not contradict or diminish the obvious inferences to

be drawn from the emails in question. They speak for themselves. What

was said in parliament was expressly the subject of Ms Lawrie’s Chief

of Staff’s email requesting the Respondent’s thoughts and we infer that

in sending that email he was acting for her. The respondent’s email in

reply expressly referred to what he thought was the best point to make

in Parliament and getting it onto the record in the House. In these

circumstances we conclude that these emails are encompassed by s 6(2)

as they were prepared for the purposes of or incidental to the

transacting of the business of the Assembly. As such they come within

the meaning of “proceedings in Parliament.”

[24] For the reasons discussed below I do not think that this conclusion was in

error.

[25] The Plaintiff submitted to the Tribunal that the decisions in Rowley v

Armstrong8 and R v Grassby9 were inconsistent with the construction of

s 6(2) of the LAPP Act because they rejected the proposition that

parliamentary privilege extended to communications from non-members that

seek to persuade members to make particular statements in Parliament. The

Tribunal rejected this submission observing that these decisions turned on

8 [2000] QSC 88. 9 (1991) 55 A Crim R 419.

13

their own facts and that there was ample authority, referring to Erglis v

Buckley10 that communications from non-members may be covered by

parliamentary privilege. After referring to a number of decisions, including

Rowley v O’Chee11, Sportsbet Pty Limited v State of New South Wales (No

3)12, OPEL Networks Pty Ltd (In Liq)13 and ACT v SMEC Australia Pty Ltd14

the Tribunal concluded that it would be unlawful for the Tribunal to

consider Allegation One and it was dismissed.

The submissions of the parties and reasons for refusing relief

[26] Counsel for the Plaintiff began his submission by referring to the decision of

the New South Wales Court of Criminal Appeal in Obeid v R15. In that case,

a former member of the Legislative Council was charged with wilfully

misconducting himself in public office, a common law indictable

misdemeanour. It was alleged that whilst in office, he made representation

to a senior public servant with the object of securing a benefit for a business

in which he had an undisclosed interest. It was held that the indictment does

not concern matters incidental to parliamentary speech or proceedings. As

the Court said, the communication which was the subject of the offence was

not communicating with the executive generally, but communicating with

the public servant about the renewal of certain leases in particular which had

nothing to do with proceedings in Parliament. It is difficult to see the

10 [2005] QCA 404. 11 [2001] 1 Qd R 207. 12 [2009] FCA 1283. 13 [2010] NSWSC 142. 14 [2018] ACTSC 252. 15 [2015] NSWCCA 309.

14

relevance of this decision to the facts of this case, and no particular

submission was made concerning it.

[27] Next, it was submitted that counselling or soliciting by a non-member of

particular statements in Parliament by a member is insufficient to attract

parliamentary privilege, even if the statements relate to an issue recently

raised in parliamentary debates. Counsel referred to R v Grassby16 for the

proposition that whilst privilege could extend to non-members it was

confined to “petitioners”, “witnesses and others who so licit business in

parliament” in “the discharge of their duties”. It was put that it did not cover

the provision of information to members in other capacities, irrespective of

whether that information was subsequently used in proceedings in

Parliament. The facts in that case concerned a document prepared by Mr

Grassby, a former Member of Parliament, which contained defamatory

imputations against three persons said to have been complicit in the murder

of Donald MacKay. Mr Grassby had been charged with criminal defamation.

The document was given to the informant’s Member of Parliament for the

purpose of it, or the information contained in it, being used in Parliament.

[28] Allen J, after referring to a passage in T E May, Parliamentary Practice,

which stated that “although both Houses extend their protection to witnesses

and others who solicit business in Parliament, no such protection is afforded

to informants, including constituents of Members of the House of Commons

who voluntarily and in their personal capacity provided information to

16 (1991) 55 A Crim R 419.

15

Members, the question whether such information is subsequently used in

proceedings in Parliament being immaterial”, held that the material was not

privileged. As counsel for the Second Defendant pointed out in his

submissions, that case is not authority for the proposition expressed in such

wide terms as the Plaintiff submitted. The real ratio of the case was that

there was no immunity to just anybody who seeks to persuade a

Parliamentarian to say something in Parliament. The distinguishing feature

from that case is that the Second Defendant was not just a mere informant;

he was acting in his professional capacity as an adviser to the Leader of the

Opposition and was responding to a request for advice from the Leader of

the Opposition’s Chief of Staff.

[29] The same applies to the decision in Rowley v Armstrong17. In that case the

Plaintiff brought an action for defamation against the Defendant for two oral

publications the Defendant had made about illegal fishing by the Plaintiff.

The publications were made to a member of the Senate and to a member of

the Legislative Assembly of Queensland. In both cases, the publications

were unsolicited by either parliamentarian and the informant was acting in

his personal capacity. Jones J, after reviewing the authorities, held that “an

informant in making a communication to a parliamentary representative is

not regarded as participating in ‘proceedings in Parliament’ and therefore

the provisions of the Parliamentary Privileges Act do not apply”18.

17 [2000] QSC 88. 18 At para [34].

16

[30] Reliance was also placed on the decision of the Queensland Court of Appeal

in Rowley v O’Chee19. That case was concerned with whether documents in

the hands of Senator O’Chee, which came into his possession from outside

sources and were not prepared by him or someone on his behalf, were the

subject of the privilege. The Court of Appeal held that they were so

privileged. McPherson JA said20:

They [the documents] consist principally, if not exclusively, of letters

sent by or documents received from other persons or sources. It is not, I

think, possible for an outsider to manufacture Parliamentary privilege

for a document by the artifice of planting the document upon a

Parliamentarian: see Rivlin v Bilainkin [1953] 1 QB 485; and Grassby

(1991) 55 A Crim R 419. The privilege is not attracted to a document

by s16 (2) until at earliest the parliamentary member or his or her agent

does some act with respect to it for the purposes of transacting business

in the House….Generally, it seems to me that if documents like these

came into possession of Senator O’Chee and he retained them with a

view to using them, or the information they contain, for the purpose of

Senate questions or debate on a particular topic them it can be fairly

said that his procuring, obtaining or retaining the possession of them

were ‘acts done… for purposes of or incidental to the transacting of the

business’ of the House.”

[31] I agree with counsel for the Second Defendant that this case does not carry

the matter any further than was decided in R v Grassby or Rowley v

Armstrong, so far as concerns the facts of this case.

[32] The next authority relied upon by the Plaintiff is the decision of White J in

Carrigan v Cash21. In that case, the respondent, the Honourable Senator

Michaelia Cash, was the Minister for Employment in the Australian

Government. She appointed a retired Federal Court Judge, the Honourable

Peter Heerey AM QC to inquire into, and report on, complaints and related

19 [2001] 1 Qd R 207. 20 At 221. 21 [2016] FCA 1466.

17

issues concerning the Honourable Michael Lawler, who was then the Vice

President of the Fair Work Commission. Mr Heerey provided his report to

the Minister who published a redacted version of the report in the Senate.

The Plaintiff sought judicial review including certiorari and a declaration

that the report is void and of no effect. The issue was whether the report was

subject to parliamentary privilege. The Parliamentary Privileges Act 1987

(Cth) is for all intents and purposes identical with the LAPP Act.

[33] White J said22:

The question of whether words were spoken, or acts were done, for a

specified purpose is a question of fact. Prima facie, it requires an

assessment of the subjective purpose of the actor in question: O’Chee v

Rowley (1997) 150 ALR 199 at 208. However, as with so many areas of

the law, the ascertainment of that purpose is informed by an objective

consideration of the circumstances, that is, by consideration of those

matters which stand independently of any statement of the actor of his

or her purpose, especially statements made in retrospect.

[34] His Honour observed that the Minister’s purpose may also inform the

assessment of Mr Heerey’s purpose; the terms of reference included whether

there was a reasonable basis for both Houses of Parliament to consider

requesting the Governor-General to remove Vice President Lawler from the

Fair Work Commission on the grounds of proved misbehaviour or

incapacity. Mr Heerey did not state his task as being to advise the Minister

as to whether there was such a reasonable basis; instead he referred to the

consideration of the issue by the Parliament itself. Mr Heerey prepared his

report for the consideration of the Parliament and he had no other purpose;

accordingly the conduct of Mr Heerey in preparing and providing the report

22 At para [44].

18

and the conduct of the Minister both fell within the description of

“proceedings in Parliament”.

[35] Counsel for the Plaintiff submitted that this case demonstrates that the

request for advice from Ms Lawrie could only be salient where it was

directed to transacting the business of the Assembly and is distinguishable

from the business of an ordinary parliamentarian in respect of non-

parliamentary capacities or interests. Thus it was put that, contrary to the

approach adopted by the Tribunal, an examination of the scope of the

request for advice, the content of the advice, and the correspondence or

disjunction between the two, is essential. As to the first of these

propositions, it seems to me that if the purpose of the advice given in

relation to what a Parliamentarian might say during debates, even if related

only to defending the personal reputation of that Parliamentarian or for that

matter, the personal reputation of another Parliamentarian, is very much the

business of the Assembly. As counsel for the Second Defendant correctly

submitted, free speech by Parliamentarians in Parliament is at the very heart

of what is protected by Article 9 of the Bill of Rights. Certainly, Carrigan v

Cash is not authority against that proposition as that did not fall to be

considered in that case. I accept that whilst White J approached the matter

on the basis that the report’s purpose was not simply to advise the Minister,

but to inform the Parliament, his Honour did not deal with the question of

whether, had the report been prepared solely to advise the Minister, it would

have been protected. I also accept that White J did find a strong correlation

between the advice sought and the response given, but it does not

19

necessarily follow that the absence of such a strong correlation is fatal to a

claim for parliamentary privilege.

[36] Counsel for the Second Defendant referred me to the decision of the

Queensland Court of Appeal in Erglis v Buckley & Ors23. In that case, the

Leader of the Opposition in the Queensland Legislative Assembly made a

lengthy statement in Parliament criticising the conduct and management of

Ward 9D of a certain Queensland hospital. The source of the information

supplied to the Leader of the Opposition, was the plaintiff, Ms Erglis, who

had been a nurse on the relevant ward. A number of other nurses sought an

opportunity to refute these allegations and to that end, had a meeting with

the Minister for Health. Following that meeting, the Minister promised to

read out a letter in Parliament containing their side of the matter. The letter

was composed, written, signed by the defendants and transmitted to the

Minister who read it in Parliament. Ms Erglis sued for defamation, as the

letter contained some imputations which were found by a jury to be

defamatory of her. The question that arose on the appeal is whether the

defendants were protected by parliamentary privilege.

[37] McPherson JA, with whom Jerrad JA and Dutney J concurred, said24:

The effect of what he [the trial judge] said was that in doing the acts of

composing, typing and sending the letter to the Minister, the defendants

were entitled to the absolute protection of parliamentary privilege

under the Act, and that the plaintiff was therefore not entitled to

impeach or question them as she did in bringing her claim for damages

for defamation in respect of the letter ex 9. This, as will be seen, has

23 [2005] QCA 404.

24 At [31]-[32].

20

the consequence of extending the protection to persons who are not

themselves members of Parliament, but it seems to me that such an

extension is, in the circumstances of this case, necessarily implicit in

the statutory provisions themselves. Sections 8 and 9 of the Act do not

in terms confine the privilege to members of Par liament themselves.

That is consistent with the nature of the privilege as it has been

judicially characterised in the past. It is well settled that it belongs not

to the individual member but is the privilege of parliament as a whole:

see Rowley v O’Chee [2000] 1 Qd R 207, at 224-225, and the

authorities cited there. Furthermore, as his Honour pointed out or

implied, it would be wrong to assume that the protection afforded by,

for example, s 9(2)(e), is restricted only to a member of the Assembly

who prepares the document himself or herself; the protection must be

intended to cover those who prepare and provide the document for him

or her to use in transacting the business of the Assembly. Unless

therefore the statutory protection is designed to benefit onl y members

who have unusually retentive memories, other persons will inevitably

be drawn into and become involved in the member’s behalf in the act of

preparing the document for presentation to the Assembly, or in other

acts incidental to that business of the Assembly.

[38] What Erglis demonstrates is that the privilege is not confined to the

member; it is available even to outsiders who prepare a document for the use

of the member at the member’s request if the document is to be used in

transacting the business of the Assembly. Counsel for the Second Defendant

submitted that the Second Defendant’s email did not seek to manufacture

Parliamentary business. On the contrary, it counselled the making of a

statement in Parliament in response to a statement made in Parliament in

relation to a report that was required to be tabled in Parliament, doing so in

response to a request for advice from the Chief of Staff of the Leader of the

Opposition. The Second Defendant was not an “outsider” as is the case with

a person who sends unsolicited documents to Parliamentarians. I agree.

Clearly, the Second Defendant’s advice was being sought by the terms of the

Gleeson email: “What do you think, Alistair?”

21

[39] Counsel for the Plaintiff submitted that Erglis provides no clear answer to

the question to be determined in this case. In that case the letter

corresponded within the scope of the request and additionally the letter itself

was to be published in Parliament. So it was put that the connection between

the Second Defendant’s email and the request for advice in the Gleeson

email did not sufficiently correspond so as to afford protection. The

following matters were relied upon to support this submission. First, to the

extent that the request contemplated anything being impugned, it was Mr

Giles’ statements in the House. Secondly, the Second Defendant’s email

recommended that Ms Lawrie impugn the integrity of the Commissioner.

There was therefore a major disjunction between the scope of the request

and the subject matter for advice. The Second Defendant’s email stated that

the matters he suggested could be used in unspecified debates in the

Legislative Assembly. There was nothing to indicate that the contents of the

“letter” (presumably the proposed letter to the Commissioner) were intended

to inform the Assembly on a particular issue or otherwise assist in the

transacting of the business of the Assembly. The advice was directed at the

protection of advancement of the private interests of Ms Lawrie, in

particular, her reputational interests as a witness in the Inquiry, and not in

relation to the discharge of her functions in the Assembly. Therefore, the

connection between the Second Defendant’s email and the transacting of the

business of the Assembly was not materially greater than the connections

that were held to be insufficient in Grassby and Rowley v Armstrong.

22

[40] There is no authority which authoritatively deals with the point raised by

counsel for the Plaintiff, namely that there must be a sufficient

correspondence between the request and the advice given.

[41] Counsel for the Second Defendant submitted that the Plaintiff’s argument

mischaracterises the emails. Part of the Gleeson email suggests that the

Chief Minister had already received the Commissioner’s report, as otherwise

how would he know that Mr McCarthy had been found guilty of misleading

the Commissioner? At that time, the report had not been presented to the

Administrator. Alternatively, Mr Gleeson surmised that the Chief Minister

had used parliamentary privilege to put pressure on or influence the

Commissioner’s final report. The Second Defendant’s email dealt directly

with that question in the first sentence of his email. The second part of the

Second Defendant’s email was directed at “the process” adopted and the

Commissioner not being independent and making these points in Parliament

rather than writing a “strong letter to the Commissioner”. Mr Gleeson was

seeking the Second Defendant’s advice on both questions insofar as he asked

about the possibility of the Chief Minister putting pressure or influence on

the Commissioner. Further, it was put that it was the Second Defendant’s

intention that was of primary importance and it was clear that his purpose

was to suggest that Ms Lawrie make certain statements in the Legislative

Assembly in response to those of Mr Giles. The point was also made that in

a situation such as the present, when the Second Defendant was acting for

Ms Lawrie, that he would normally be expected to provide advice not merely

on suggestions coming from her or her staff as to how to respond to an

23

attack in Parliament, but what, in his opinion, is the best way to respond,

which is what he did. I should add that he left his suggestions for the

consideration of Mr Gleeson because at the end of the email, he asks “What

do you think?” implying that the discussion of how best to respond was still

open for further consideration. I accept counsel for the Second Defendant’s

submission.

[42] In OPEL Networks Pty Ltd (in liq)25 Austin J considered a claim for

parliamentary privilege in respect of an email prepared by an assistant

secretary to the Prime Minister and Cabinet which disclosed a Question

Time brief containing information for a Minister’s use in Ques tion Time in

the Senate; and a Question Time brief to be used by the Prime Minister in

Question Time in the House of Representatives. The briefs had been

prepared by the sender of the email. Austin J upheld the privilege saying26:

It seems to me to be necessarily true, and not dependent upon the

evidence of the particular case, that if briefings to parliamentarians for

Question Time and other Parliamentary debate are amenable to

subpoenas and other orders for production, the Commonwealth officers

whose task it is to prepare those documents will be impeded in their

preparation, by the knowledge that the documents may be used in legal

proceedings and for investigatory purposes that may well affect the

quality of information available to Parliament. To take a step that

would have that consequence would, I think, derogate from the force of

the Bill of Rights and run contrary to the historical justification for that

legislation, so ably sketched by McPherson JA (and see Mees v Road

Corporation (2003) 128 FCR 418; [2203] FCA 306 and [75-79] per

Gray J).

25 [2010] NSWSC 142. 26 At [118].

24

[43] What OPEL and other authorities27 establish is that documents prepared by

Ministerial staff for use by a Minister in the business of the Parliament will

ordinarily be privileged. I see no distinction between a Minister and any

other Parliamentarian. In ACT v SMEC Australia Pty Ltd28, the privilege was

extended to drafts of briefs to the Minister. I see no reason to differentiate

between an advisor or the staff of a Parliamentarian and a legal practitioner

employed to advise a Parliamentarian on what to say or do in the Legislative

Assembly. To the extent that the Second Defendant’s email could be

considered as only a suggested response which may or may not have been

accepted by Ms Lawrie, it is relevantly no different from a draft.

[44] Counsel for the Plaintiff submitted that when considering the scope of

purposes of or things incidental to the transacting of the business of the

Assembly, it is important to focus on the business of the Assembly rather

than the business of individual members of the Assembly which may have a

broader scope. It was put that the evident statutory purpose of s 6 of the

LAPP Act is to safeguard the functioning of the Assembly as an organ of

Government, not to safeguard the interests of individual members, even

where those individual interests may be affected by other events in

Parliament. Counsel referred to the decision of the High Court in

Independent Commission Against Corruption v Cunneen & Ors29 where the

27 For example, ACT v SMEC Australia Pty Ltd (2018) ACTSC 252. 28 At [79]. 29 [2015] HCA 14; 256 CLR 14 at [31] .

25

plurality referred to what was said in Project Blue Sky Inc v Australian

Broadcasting Authority30:

The primary object of statutory construction is to construe the relevant

provision so that it is consistent with the language and purpose of all

the provisions of the statute. The meaning of the provision must be

determined by reference to the language of the instrument viewed as a

whole.

A legislative instrument must be construed on the prima facie basis that

its provisions are intended to give effect to harmonious goals. Where

conflict appears to arise from the language of particular provisions, the

conflict must be alleviated, so far as possible, by adjusting the meaning

of the competing provisions to achieve that result which will best give

effect to the purpose and language of those provisions while

maintaining the unity of all the statutory provisions.

[45] Counsel referred to s 6(2) which provides, relevantly, that “proceedings in

Parliament means all words spoken and acts done in the course of or for the

purposes of or incidental to the transacting of the business of the Assembly

or of a committee, and without limiting the generality of the foregoing

includes:

(a) the giving of evidence before the Assembly or a committee, and

evidence so given;

(b) the presentation or submission of a document to the Assembly or a

committee;

(c) the preparation of a document for the purposes of or incidental to the

transacting of any such business; and

(d) the formulation, making or publication of a document, including a

report, by or pursuant to an order of the Assembly or a committee and

the document so formulated, made or published.

30 (1998) 194 CLR 355 at 381-382; [69]-[70].

26

[46] It was submitted that sub-paragraphs (a), (b) and (d) are tied to intrinsic

functions of the Assembly as an integrated organ of government rather than

the individual capacities of Parliamentarians.

[47] As counsel for the Second Defendant pointed out in reply, Article 9 of the

Bill of Rights is in very wide terms. In effect, whatever is said in Parliament

is protected, whether it is said by an individual member or a member of the

Government Ministry, and whatever it relates to, regardless of the motive of

the member raising it. It is perfectly within the scope of that freedom for

Ms Lawrie to make any statement she wishes to make in the Assembly in

order to protect her own reputation or that of another member, or to respond

to criticism of her or another member, just as it was within the scope of that

freedom for Mr Giles to say what he is alleged to have said. The business of

the Assembly includes whatever is said in the Assembly by a member. The

purpose of s 6(2) is not to place a limitation on Article 9 of the Bill of

Rights, but if anything, to expand it. I reject the submission that s 6(2)(c) is

to be read down in the manner contended by the Plaintiff.

[48] In conclusion, I can find no error by the First Defendant in the decision it

reached that the documents sought to be relied on to support Allegation One

were inadmissible because they were protected by parliamentary privilege. It

was conceded that if this were so, there was no evidence upon which the

First Defendant could convict the Second Defendant of Allegation One and

that it was rightfully dismissed.

Allegation Three

[49] This allegation is in the following terms:

27

On 19 June 2014, the Respondent engaged in professional misconduct,

contrary to section 454 of the LPA, by breaching Rule 59(a)(i) of the

Barrister’s Conduct Rules. The Respondent advised Mr Michael

Gleeson, the Chief of Staff to Ms Delia Lawrie, the then Leader of the

Opposition in the Northern Territory, that in the event that the report of

the Stella Maris Inquiry contained adverse findings about Ms Lawrie or

Mr McCarthy, a public statement should be made by Ms Lawrie that the

findings came “as a complete surprise”’ when the Respondent knew this

assertion would be false or alternatively, was reckless as to whether it

would be true or false.

[50] The advice given was in a telephone conversation with Mr Gleeson shortly

before 10:09am on 19 June 2014. The evidence relied upon to prove this

allegation was contained in an email from Mr Gleeson to Ms Lawrie sent at

10:09am that day, in the following terms:

Alistair just called. He says we should say words to the effect:

“We have only just received this report and clearly we will need some

time to digest the findings”.

“We weren’t given any notice that there would be adverse findings and

these findings come as a complete surprise”.

“We won’t be making any further comment now as there is a real

chance we will be taking this matter to the Supreme Court”.

[51] This particular email is but one in a chain of emails dating back to

14 February 2014 which related to the question of whether or not the

findings came as a surprise. Of particular relevance in this case was an

email of 18 June 2014 at 12:40pm from Mr Gleeson to the Second Defendant

which attached two documents headed “Delia Notes” one of which continues

“Stella Maris Inquiry (assuming adverse findings)” and the other continues

“Stella Maris Inquiry (assuming no adverse findings)”. There was a further

email at 8:40pm that day from Ms Lawrie to the Second Defendant that she

had Charlie Phillips working further on responses to Parliament and had

28

asked Mr Gleeson to ensure the argument around the Commissioner’s Report

would be ready tomorrow. On 19 June 2014 at 10:25am Mr Gleeson sent an

email to the Second Defendant headed “Delia speaking notes”. At 10:33am

on the same day the Second Defendant responded by email to Mr Gleeson

and Ms Lawrie re “Delia Speaking Notes” advising that all was fine and

referring to what should be reinforced. At 10:54am (after the subject

telephone call) Ms Lawrie sent an email to Mr Gleeson:

Send Alistair my speech notes from Charlie Phillips for consideration. I

will of course follow Alistair’s advice.

[52] That night, the Commissioner’s Report was tabled in the Assembly. When

speaking in the Assembly in response to the Report, Ms Lawrie’s comments

reflected some of the Second Defendant’s advice insofar as she said: “We

have only just received the Report” and on three occasions said “…no notice

of adverse findings has been provided to us”.

[53] The Tribunal made some factual errors in setting out the facts. The Tribunal

incorrectly referred to the time of the Second Defendant’s telephone

conversation with Mr Gleeson as occurring at a short time before 10:39am

instead of 10:09am, and incorrectly referred to the timing of the email at

10:54am, stating instead to it being sent at 10:20am. I am not persuaded that

these minor factual errors vitiated the Tribunal’s decision.

[54] The Tribunal concluded that the conversation was privileged because it fell

within the words of LAPP Act, s 6, in that it was “words spoken…in the

course of, or for the purposes of or incidental to, the transaction of the

business of the Assembly”. The Tribunal also said that “consistent with our

29

view of the applicable law as explained in the reasons we published on

5 August 2020 referable to Allegation One, it is not lawful for the Tribunal

to receive evidence of Mr Wyvill’s advice as it is being tendered in order to

question the truth or good faith of what he advised Ms Lawrie to say in the

Assembly”, referring to s 6(3)(a) of the LAPP Act. The Tribunal also held

that “the same outcome follows if the admonition in Article 9 of the Bill of

Rights 1688 (Imp) is applied to the Second Defendant’s advice. To allow it

to go into evidence would allow proceedings in Parliament to be impeached

within the meaning of that term as explained in the authorities referred to in

our reasons of 5 August 2020”.

[55] I note that in submissions made to the Tribunal before that ruling was made,

counsel for the Plaintiff said “that if you apply the reasoning in your August

5 decision, then Allegation Three stands in the same position as Allegation

One. And I could not put to you a submission that differs from that because

I am bound to accept at this stage, subject to judicial review, your reasoning

in your 5 August decision”.

[56] Despite that concession, counsel for the Plaintiff submitted that there was no

request for any advice prior to the telephone call, and that therefore

parliamentary privilege did not arise in relation to the email. The Plaintiff’s

submissions concentrated on the telephone advice given rather than on the

document which evidences the advice. That document was an email from

Mr Gleeson to Ms Lawrie. Plainly that document was privileged as it came

from Ms Lawrie’s Chief of Staff to her and it directly related to what she

was being advised to say in Parliament. So far as the telephone advice itself

30

is concerned, although there was no actual request for advice, the

circumstances show that the preceding emails to that advice were not just

being provided for the Second Defendant’s information. It was only natural,

and to be expected, that he would respond in some way. When one goes to

the “Delia notes” which preceded the advice, there is specific reference to

the matter of whether previous notice of any adverse findings had been

given. In the “Delia notes…Stella Maris Inquiry (assuming adverse

findings)” that subject is raised in paragraphs 2 and 3. The only matter the

Second Defendant added in addition is that statement was that “this (ie the

adverse findings) came as a complete surprise to us”.

[57] Counsel for the Second Defendant in his submissions pointed out that in the

OPEL decision, there was no request for any advice, but nevertheless the

Question Time briefs were held to be subject to privilege. That was because

of the relationship between the relevant Ministers and the person who

drafted the briefs was doing what was expected of him in the ordinary

course. In this case, the relevant relationship between the Second Defendant

and Ms Lawrie and the context in which that advice was given explains why

the Second Defendant provided the advice. The Second Defendant’s purpose

was not to advance some objective of his own; it was to assist Ms Lawrie to

deal with an attack which was expected to be made against her and

Mr McCarthy in the Parliament.

[58] In my opinion the telephone call between the Second Defendant and

Mr Gleeson was privileged for essentially the same reasons as the emails in

Allegation One were privileged. Although the First Defendant made some

31

mistakes in the timings of the emails, this did not vitiate the First

Defendant’s decision which was correct on the facts.

The Declaration sought

[59] The Plaintiff has sought a declaration that the admission into evidence of the

documents listed in Schedule 1 for the purposes of the Disciplinary

Application is not rendered unlawful by s 6(2) of the LAPP Act and/or

Article 9 of the Bill of Rights.

[60] It is agreed between the parties that the Tribunal rejected the tender of each

of the documents listed in Schedule 1 to the Originating Motion on the sole

basis that receiving them would be unlawful as a breach of parliamentary

privilege.

[61] It is also agreed between the parties that the Plaintiff acknowledged before

the Tribunal, and the Second Defendant agreed, that if the Tribunal adopted

the same approach to s 6(2) of the LAPP Act and the law of parliamentary

privilege as it had in respect of the dismissal of Allegation One of the

Disciplinary Application, it would follow that the Tribunal would exclude

from evidence the documents listed in Schedule 1 to the Originating Motion.

[62] No submission was made before me that I should re-examine the documents

myself and I was not taken to them by either counsel. In those

circumstances, in the light of my decision in relation to the claims for

certiorari, I decline to make the declaration sought.

Orders

[63] The relief sought in the Originating Motion is refused.

32

[64] The application is dismissed.

[65] I will hear the parties as to costs.

----------------------------------