Federal Court of Australia

TESA Group Pty Ltd v Mining and Energy Union [2026] FCAFC 86

ORDERS

THE COURT ORDERS THAT:

1.    The first ground of the notice of contention be upheld to the extent that the Hansard extracts, being Exhibit BP-2 and Exhibit BP-3 to the affidavit of Brad Popple affirmed 4 April 2025, should not have been admitted into evidence before the primary judge.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH AND KENNETT JJ:

Introduction

1    In this appeal proceeding, a preliminary issue arose as to whether parliamentary privilege applied to evidence adduced before a judge of this Court. The evidence was extracts from Hansard in the House of Representatives, which were exhibits to an affidavit that was read before the primary judge in the course of hearing a judicial review application. The judicial review application challenged the dismissal of recusal applications made to a Deputy President of the Fair Work Commission, asserting jurisdictional error. The judicial review application was dismissed by the primary judge. The unsuccessful applicants appeal from that decision.

2    In these reasons it is convenient to refer only to the appellant in the singular, although there is more than one appellant and there was more than one applicant below; and to the respondent also in the singular, because only the first respondent was active both below and on appeal.

3    The case for recusal advanced before the primary judge in part relied upon evidence that was not connected with any proceedings in the Australian Parliament. It also in part relied upon evidence about what had taken place in the Australian Parliament, in the form of the Hansard extracts, which are records of parliamentary proceedings to which parliamentary privilege could apply. This judgment concerns the dispute between the parties about whether such evidence should have been admitted.

4    The respondent filed a notice of contention asserting error on the part of the primary judge in admitting the Hansard extracts into evidence. Unusually, an aspect of the notice of contention needed to be heard and determined prior to the substantive appeal hearing, because the appellant relies upon the Hansard extracts in challenging the primary judge’s conclusion on apprehended bias. The first part of the first ground in the notice of contention asserts that the primary judge should not have received into evidence the Hansard extracts, upon the basis that parliamentary privilege applied to them. If that was so, it would significantly diminish the factual substratum relied upon by the appellant to establish jurisdictional error in the Deputy President’s decision. In that way, the decision of this Court on whether parliamentary privilege applies bears directly on the strength of the case for recusal, and therefore on the strength of the substantive appeal.

5    Further, and in any event, to hear and decide the substantive appeal on the assumption that the Hansard extracts were admissible, before considering whether they should be excluded, would itself be inconsistent with parliamentary privilege if the correct view is that this material was not admissible or permitted to be tendered by reason of the operation of s 16(3) of the Parliamentary Privileges Act 1987 (Cth) (PP Act).

6    The case before the Deputy President concerned two applications brought by the respondent for regulated labour hire arrangement orders under Div 2 of a new Pt 2-7A inserted into the Fair Work Act 2009 (Cth) with effect from 15 December 2023. Such orders would bind, among others, the appellant. The appellant sought to have the Deputy President recuse herself from hearing both applications by reason of asserted apprehended bias arising from her prior political career, during which she supported aligning the rates of pay for workers who were employees and workers who were supplied by labour hire arrangements. It was contended that, because the applications, if successful, would produce an outcome consistent with what she had advocated for in her political career, the Deputy President might not be seen as impartial.

7    One of the Hansard extracts relied upon by the appellant contains the following comments made on 23 February 2021 by the Deputy President, then as a Member of Parliament (and member of shadow cabinet), during a debate before the House about an industrial relations Bill (not being the Bill that gave rise to the new s 306A of the Fair Work Act) (the Comments):

I mentioned the mining sector. This is a sector that is faced with significant change— obviously workplace health and safety concerns, but also the disruptive impact of automation such that it's very unclear to a lot of workers what their jobs will be in the future. It's an industry that's also facing rampant casualisation and labour hire, forms of work that do not provide the same security that permanent work does. When our leader, Anthony Albanese, gave a speech in Brisbane recently in my electorate of Griffith to talk about security at work, he talked about two coalminers, Ron and Simon.

These are guys who work side by side doing the same job, but one is on labour hire and one is permanent, and their pay difference is about 20 per cent.

This isn't the Australia that we want to live in, where there's insecurity at work and where people who are doing the same job aren't getting the same pay. That's not the sort of country we should be striving to be.

8    The other Hansard extract relied upon by the appellant contains a question the Deputy President asked of the then Prime Minister in the House on 26 May 2021 (the Question):

My question is to the Prime Minister. These pay slips are from two men who work at the same abattoir and to the same job, for the same hours, on the same shift, in the same room. One works for the company which runs the abattoir, and the other is a labour hire casual. The labour hire worker gets $500 less per week. Why does the Morrison government continue to protect this rort that drives wages down?

9    The primary judge concluded that the appellant could not make out the claim of apprehended bias, whether the Hansard extracts were taken into account or not, therefore finding that the issue of breach of parliamentary privilege did not have to be determined. In reaching that conclusion, her Honour necessarily had regard to the Hansard extracts. Her Honour also decided that had it been necessary to decide the issue of parliamentary privilege, she would have found that the appellant was not precluded from relying on the Hansard extracts.

10    The competing arguments on parliamentary privilege included questions as to the interpretation of the Constitution, for which notices were served on the nine Attorneys-General of the Commonwealth, States and Territories under s 78B of the Judiciary Act 1903 (Cth). Only the Commonwealth Attorney-General intervened and appeared on the issue of the application of parliamentary privilege. The Court was satisfied that sufficient time had elapsed for any other Attorney-General to decide to intervene. It is convenient to refer to the Commonwealth Attorney-General as the intervener.

The principles of parliamentary privilege

11    Section 49 of the Constitution provides:

Privileges etc. of Houses.

The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

12    By virtue of s 49 of the Constitution, at the time of Federation and until declared to the contrary by the Parliament, the foundation for parliamentary privilege was provided by Article 9 of the Bill of Rights 1688 (UK). Case law has determined the metes and bounds of parliamentary privilege, non-exhaustively, over time. Article 9 provides (verbatim):

Freedom of Speech.

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

13    It was not until the passage of the PP Act, which commenced on 20 May 1987 and was last amended in 2016, that the powers, privileges, and immunities of the Senate and of the House of Representatives (and of the members and the committees of each House) were declared by the Parliament. The enactment of the PP Act constituted a declaration for the purposes of s 49 of the Constitution: see s 16(1) of the PP Act, reproduced below; see also BDR21 v Australian Broadcasting Corporation [2023] FCAFC 101; 298 FCR 1 at [67], [70] (Rangiah, Bromwich and Cheeseman JJ).

14    Section 5 of the PP Act provides as follows:

Powers, privileges and immunities

Except to the extent that this Act expressly provides otherwise, the powers, privileges and immunities of each House, and of the members and the committees of each House, as in force under section 49 of the Constitution immediately before the commencement of this Act, continue in force.

15    Section 16(1) to (3) of the PP Act provides as follows (the remaining subsections not being presently relevant):

Parliamentary privilege in court proceedings

(1)    For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

(2)    For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

(a)    the giving of evidence before a House or a committee, and evidence so given;

(b)    the presentation or submission of a document to a House or a committee;

(c)    the preparation of a document for purposes of or incidental to the transacting of any such business; and

(d)    the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

(3)    In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a)    questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b)    otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

(c)    drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

16    The issue of parliamentary privilege that arose before the primary judge concerned s 16(3)(c) and whether the appellant sought to use the Hansard extracts for the proscribed purpose of drawing inferences or conclusions based on what was said by the Deputy President in Parliament, rather than merely proving the fact that something was said without making anything more of it. The same s 16(3)(c) issue arises on appeal, but the respondent also claims that the appellant has varied its case to question the good faith of the Deputy President such that the proscriptions in s 16(3)(a) and (b) are also engaged.

17    The PP Act was enacted in response to what was described in the second reading speech for the relevant Bill as the “very narrow interpretation and reading down” of Article 9 by successive evidentiary rulings by Cantor J and Hunt J in the course of a criminal trial and re-trial in the Supreme Court of New South Wales. In the retrial, Hunt J allowed the evidence of a witness at a Senate select committee to be used to cross-examine that witness, holding that such use was permitted by Article 9: R v Murphy (1986) 5 NSWLR 18 at 39E (also reported at 64 ALR 498). The extrinsic material made it clear that the purpose of s 16 was to avoid the consequences of that interpretation. The key aspects of that extrinsic material were reproduced by Beaumont J in Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 229-230, and do not need to be further reproduced in these reasons.

18    It is well established that s 16(3) does not in any way narrow the scope of parliamentary privilege: Rann v Olsen [2000] SASC 83; 76 SASR 450 at [53]. To the contrary, its wide and prescriptive language tends, if anything, to extend its reach. It certainly addressed the restriction found in Murphy, which, as discussed in further detail below, prompted its enactment. The statutory language also provides some clarity as to the extent of its reach, reflecting and thereby entrenching the common law understanding of the scope of parliamentary privilege. As discussed below, the view of the Privy Council in Prebble v Television New Zealand [1995] 1 AC 321, cited in subsequent cases in Australia, was that s 16(3), rather than Murphy, captures the principles to be applied in relation to parliamentary privilege.

19    In the year following the enactment of the PP Act, Beaumont J delivered judgment in Amann Aviation, in which an aspect of a broader contractual dispute concerned the applicant’s tender of an extract from the Senate Hansard containing a question and an answer. The purpose of the tender was to show that the Commonwealth was not entitled to terminate the contract. His Honour concluded that, as it was apparent that the tender was for the purpose of proving a contentious matter, it was proscribed by s 16(3). However, his Honour also made clear, at 232, that the Court could receive the extract for the purpose of a temporary and conditional examination to inquire whether its reception into evidence was prohibited. In that sense, material potentially rendered inadmissible by parliamentary privilege can be examined like any other evidence in the ordinary course of determining admissibility. It is in the nature of a voir dire process.

20    In considering the substantive issue of whether the Hansard extract relied upon in Amann Aviation was admissible, Beaumont J considered that some reference to the case law that preceded the enactment of s 16(3) should be made. The analysis that followed, especially at 225-227, is illuminating. The burden of his Honour’s analysis of those cases reveals that, before the enactment of the PP Act, it has been decided that parliamentary privilege:

(a)    prevents any attack being made on a report of a select committee of a House of Parliament outside Parliament, upon the basis that what is said or done within the walls of Parliament cannot be inquired into in a court of law: Dingle v Associated Newspapers Ltd [1960] 2 QB 405 (Pearson J), relying upon the reasoning in Bradlaugh v Gossett (1884) 12 QBD 271 at 278-279 (Stephen J);

(b)    prevents refuting a plea of fair comment by reading Hansard extracts to establish malice, upon the basis that what is said or done in the House of Commons cannot be examined outside Parliament to support a cause of action even if it arises out of something that was done outside Parliament; and because a Member of Parliament must have a complete right of free speech in Parliament without any fear that motives, intentions or reasoning will later be questioned or held against that member, the principle being that extracts from Hansard must not be used in any way that might involve questioning, in a wide sense, what was said in Parliament: Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 at 529-531 (Browne J);

(c)    does not prevent a Member of Parliament, even without the consent of the House of Parliament of which he or she is a member, giving evidence of facts that occurred in Parliament, such as the fact that a Member spoke in Parliament (but not what was said); or was present and acted in a particular capacity (such as Speaker); or that documents were tabled (but not who tabled them), because that is merely evidence of an event that happened: Sankey v Whitlam (1978) 142 CLR 1 at 35-37 (Gibbs ACJ);

(d)    allows the Hansard to be used to prove what was said, in an action to restrain the publication of confidential information, but no further, prohibiting the making of comments on the Hansard material by counsel or by a court: Finnane v Australian Consolidated Press Ltd [1978] 2 NSWLR 435 at 438-9 (Needham J), arguably going further than Sankey v Whitlam contemplated;

(e)    does not prevent interrogatories seeking admissions that a plaintiff Minister made certain speeches in parliament, where the purpose is merely to prove, as a matter of fact, that those speeches were made, and not to criticise them or call them into question in the proceeding, but only to prove them as facts upon which the defendants allege their published comments were made: Uren v John Fairfax & Sons Ltd [1979] 2 NSWLR 287 at 289 (Begg J);

(f)    permits, following Mundey v Askin [1982] 2 NSWLR 369 at 373, Hansard to be used to prove what was stated in Parliament, but prevents any inquiry into the motives and intentions of Members of Parliament in relation to anything they said or did in Parliament: Henning v Australian Consolidated Press Ltd [1982] 2 NSWLR 374 at 375 (Hunt J);

(g)    permits evidence to be adduced of what was said in Parliament, in circumstances in which the court refuses to allow what was said to be the subject of any submission or inference, upon the basis that the court upholds parliamentary privilege not by a rule as to admissibility but by control of pleadings and the proceedings (an approach now precluded by the bar on adducing such evidence in s 16(3)): Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1 at 5 (Blackburn CJ) (disagreeing with Finnane); and

(h)    prevents a report in Hansard being used to seek relief in respect of something which occurred outside of Parliament, because that would require a court to do more than note that a certain statement was made in Parliament on a certain date, and instead require the statement to be considered with a view to determining its real meaning and the proper inferences to be drawn, thereby entailing the examination, discussion and adjudgment of matters being considered in Parliament, and constituting an invasion by the court on the right of every Member of Parliament to free speech: R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc [1983] 2 All ER 233 at 239 (Dunn J).

21    The last of the above cases considered by Beaumont J in Amann Aviation addressed above, being Strathclyde, warrants further discussion for two reasons. First, as a case that was rejected by Hunt J in Murphy, the principles stated in Strathclyde may fairly be regarded as resurrected by the enactment of s 16(3). Second, a particularly pertinent observation was made by Dunn LJ in Strathclyde at 239, and also quoted by Beaumont J in the last line of 226 and over to page 227 in Amann Aviation:

... there is no distinction between using a report in Hansard for the purpose of supporting a cause of action arising out of something which occurred outside the House, and using a report for the purpose of supporting a ground for relief in proceedings for judicial review in respect of something which occurred outside the House. In both cases the court would have to do more than take note of the fact that a certain statement was made in the House on a certain date. It would have to consider the statement or statements with a view to determining what was the true meaning of them, and what were the proper inferences to be drawn from them. This, in my judgment, would be contrary to Art 9 of the Bill of Rights. It would be doing what Blackstone said was not to be done, namely to examine, discuss and adjudge on a matter which was being considered in Parliament. Moreover, it would be an invasion by the court of the right of every member of Parliament to free speech in the House with the possible adverse effects referred to by Browne J [in Church of Scientology of California v Johnson-Smith].

22    As the intervener points out, the above passage seems to be at least analogous to what the appellant did before the primary judge and defends doing in its appeal. That is, the appellant sought to use the Hansard extracts to support a judicial review ground which requires the Court to do more than merely note that the Deputy President made the Comments and asked the Question.

23    When Beaumont J turned to the question of whether the evidence sought to be relied upon in Amann Aviation was rendered inadmissible by the operation of parliamentary privilege, his Honour, in finding so, said at 230-1:

Where, as here, the subject-matter of the passage from Hansard is contentious in that it is sought to be used to impugn the conduct of the Senator, in the context of a denial by the respondent of any impropriety, it is almost inevitable that the tender of Hansard would lead to an examination of the circumstances in which the Senator came to make the statement and that this would further lead to an attempt to assess the credibility of this evidence and to compare it with other evidence already given. Such an examination, in a contentious area, cannot be reconciled with the complete freedom of speech envisaged by the Bill of Rights and the Act. It would be otherwise if the tender were for a non-contentious purpose, for instance, to prove that certain documents were tabled in Parliament, without disclosing who tabled them (see Sankey v Whitlam (supra) at 35-37); or, as in Turnbull, to prove the time of proceedings. If what is involved in a tender of evidence from Hansard is simply not capable of being contentious, it is difficult to see how the right of free speech could be affected.

24    It is necessary to say something more about the established limits on the permissible use of the Hansard to prove the fact that something was said in Parliament. That is because the appellant seeks to characterise its reliance on the Hansard extracts as going no further than that. This issue arose squarely in Leyonhjelm v Hanson-Young [2021] FCAFC 22; 282 FCR 341, upon which the appellant relies. At the relevant time, the two parties were each Senators. During a debate about the importation of pepper spray and tasers, Senator Leyonhjelm thought he heard Senator Hanson-Young say “all men are rapists”, and responded by saying that she “should stop shagging men”. That exchange was not recorded in Hansard, but it led to Senator Leyonhjelm releasing a media statement and participating in three interviews. He gave inconsistent accounts of what he thought Senator Hanson-Young had said, and described her as “known for liking men” and having “lots of relationships with men”.

25    Senator Hansen-Young successfully sued for defamation, alleging imputations that she was a hypocrite and a misandrist. On appeal, Mr Leyonhjelm (by then no longer a senator) contended that the primary judge should have found that the evidence and submissions about whether Senator Hanson-Young said “all men are rapists” were privileged by reason of Article 9 and/or s 16(3)(c) of the PP Act.

26    The primary judge in Leyonhjelm held that such evidence and submissions were not tendered, received or made for any purpose prohibited by parliamentary privilege, but rather for the bare purpose of determining whether Senator Hanson-Young had in fact made that statement. His Honour allowed evidence to be adduced about what Senator Hanson-Young did or did not say in the Senate. His Honour made a factual finding that she did not say what Mr Leyonhjelm alleged. Based on that finding, the alleged words did not, and indeed could not, form part of proceedings in Parliament. In those circumstances there was nothing capable of being used for one of the purposes proscribed by s 16(3).

27    If the outcome of the evidentiary contest in Leyonhjelm as to what had been said had gone the other way, and a finding had instead been made by the primary judge that the words alleged had in fact been uttered by Senator Hanson-Young, a difficult and interesting question would have arisen as to whether Mr Leyonhjelm was precluded from relying upon that evidence in support of his pleaded defences. If that conclusion had been reached, there might well have been a live question as to whether the proceeding ought to be stayed. It follows that Leyonhjelm had some complexities by which the evidentiary finding made had a determinative bearing on the ultimate result that was reached, and therefore upon the breadth of the application of that decision to issues of parliamentary privilege. It therefore needs to be approached with some caution as to the scope of its application in a different evidentiary and factual context, such as the present.

28    It is in the above context that the Full Court in Leyonhjelm (Rares, Wigney and Abraham JJ) was united in finding that the primary judge had not erred as Mr Leyonhjelm contended, although Rares J dissented on another issue. Mr Leyonhjelm contended that it was not open to the primary judge even to “take evidence in order to determine whether or not Senator Hanson-Young had actually said the words in the debate that Senator Leyonhjelm later attributed to her as the foundation of his publications of the matters complained of”: Rares J at [28].  His Honour held that the primary judge was “correct in ruling that Parliamentary privilege did not prevent the Court receiving evidence on the question of what, if anything, as a matter of historical fact, Senator Hanson-Young had said in interjecting during the debate in the Senate on 28 June 2018”: [29]. The appropriate way to characterise his Honour’s conclusion is that determining whether or not something was said in Parliament, through the mechanism of a voir dire, can be seen to be somewhat akin to the process approved by Beaumont J in Amann Aviation at 232 (referred to above at [19]) of receiving the material over which parliamentary privilege was asserted to apply for the purpose of a temporary and conditional examination to inquire whether its reception into evidence was prohibited. As with all evidence adduced on the voir dire, as part of a process of determining the admissibility of evidence, this does not itself entail any breach of parliamentary privilege.

29    It is also in that particular factual context that the following further observations by Rares J should be considered, qualified by keeping in mind the concept of a voir dire to assess admissibility of evidence that might breach parliamentary privilege, and being wary about narrowing of the reach of parliamentary privilege that might arise in circumstances other than those present in Leyonhjelm:

[43]    Importantly, s 16(3)(c), in the way in which it is expressed, reflects that the Parliament was concerned to prohibit the use of something that formed part of proceedings in Parliament to draw, or invite the drawing of, inferences or conclusions from that thing. 

[44]    The section does not proscribe the use of what occurred in Parliament to prove the fact of that very occurrence. The making of a statement or the doing of an act in Parliament are facts in themselves, in the same way as Bowen LJ once explained that “the state of a man’s mind is as much a fact as the state of his digestion”: Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483.

…

[47]    However, the fact that a person said or did something under Parliamentary privilege has a public and freestanding existence: see too Rann v Olsen (2000) 76 SASR 450 at [58], [62], [66] per Doyle CJ. Such a fact can be proved if the purpose of the tender is only to establish the existence of that fact (eg for the purpose of defences of fair report of proceedings in Parliament (see eg Cook v Alexander [1974] QB 279), honest opinion about the conduct of the plaintiff described in a Parliamentary debate (Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 319 per Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ applying Wason v Walter (1868) LR 4 QB 73 at 96 per Cockburn CJ, Lush, Hannen and Hayes JJ) or qualified privilege). But it cannot be proven if the purpose of the tender is to impugn the truth of the statement made in Parliament or motives of the person when saying it there.

30    In a similar vein, Abraham J observed:

[365]    As the primary judge properly concluded “it is not a breach of Parliamentary privilege for a party to prove, as a fact, that certain things were said in Parliament when proof of that fact is relevant to an issue in the proceedings and that proof is not led for one of the purposes proscribed by s 16(3) or its statutory or common law counterparts” at [369], citing inter alia, Mundey v Askin [1982] 2 NSWLR 369 at 373; Comalco Ltd v Australian Broadcasting Corporation (1983) 78 FLR 449 at 453; Buchanan v Jennings [2005] 1 AC 115 at [17]-[18]; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337; and Rann v Olsen at [73].

…

[372]    There was a factual issue to be resolved in this case as to what words were spoken in the interjection. That was a necessary step, because without that conclusion a decision by the Court could not be made as to whether the PP Act applied. If the respondent did not speak the words attributed to her by the appellant, s 16 had no application, as it only protects “proceedings in Parliament”. The evidence was led for the purpose of proving whether, as a matter of fact, the alleged statement was said. That consideration of the evidence and determination does not challenge the truth, intention, motive or good faith of anything forming part of the proceedings in Parliament; or otherwise question or establish the credibility, motive, intention or good faith of any person; or draw inferences, or conclusions wholly or partly from anything forming part of those proceedings: s 16(3)(a), (b), (c).

31    As will be seen, the purpose for which the appellant relied upon the Hansard extracts went far beyond the narrow ambit of what was held to be permissible in Leyonhjelm when that decision is understood in its proper factual and evidentiary context. The present appellant did not merely rely on the fact of what the Deputy President had said in Parliament, but rather advanced arguments before the primary judge as to what should be made of what she said in that protected forum in support of an allegation of jurisdictional error arising from her decision not to recuse herself.

32    Returning to the overall scope and objective of parliamentary privilege, in Prebble, an appeal to the Privy Council from the then Court of Appeal of New Zealand, Lord Browne-Wilkinson, delivered the judgment of their Lordships. His Lordship:

(a)    At 332, after quoting Article 9, and referring to the mechanism by which it applied in New Zealand, said:

In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v. Abbot (181 I) 14 East I; Stockdale v. Hansard (1839) 9 Ad. & El. I; Bradlaugh v. Gossett (1884) 12 Q.B.D. 271; Pickin v. British Railways Board [1974] A.C. 765; Pepper v. Hart [1993] A.C. 593. As Blackstone said in his Commentaries on the Laws of England, 17th ed. (1830), vol. I, p. 163:

“the whole of the law and custom of Parliament has its original from this one maxim, ‘that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.’”

(b)    At 333, reproduced s 16(3), and noted that this made clear that the interpretation of Article 9 in Murphy, which allowed the evidence of a witness at a Senate select committee to be used to cross-examine that witness at a criminal trial, and had been swiftly followed by the enactment of the PP Act, did not represent the law of the Commonwealth. His Lordship described s 16(3) as containing what their Lordships considered to be the “true principle to be applied”.

(c)    At 333-334, took issue with the interpretation of Article 9 in Murphy by reference to the original reason for its enactment, and stated:

Finally, Hunt J. based himself on a narrow construction of article 9, derived from the historical context in which it was originally enacted. He correctly identified the mischief sought to be remedied in 1689 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 article 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 article 9, viz. the need to ensure so far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibited from stating fully and freely what he has to say. If there were any exceptions which permitted his statements to be questioned subsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge to what he is saying. Therefore he would not have the confidence the privilege is designed to protect.

(Emphasis in original.)

(d)    At 336 said:

Their Lordships are acutely conscious (as were the courts below) that to preclude reliance on things said and done in the House in defence of libel proceedings brought by a member of the House could have a serious impact on a most important aspect of freedom of speech, viz. the right of the public to comment on and criticise the actions of those elected to power in a democratic society: see Derbyshire County Council v. Times Newspapers Ltd. [1993] A.C. 534. If the media and others are unable to establish the truth of fair criticisms of the conduct of their elected members in the very performance of their legislative duties in the House, the results could indeed be chilling to the proper monitoring of members’ behaviour. But the present case and Wright’s case, 53 S.A.S.R. 416 illustrate how public policy, or human rights, issues can conflict. There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled that, of these three public interests, the first must prevail. But the other two public interests cannot be ignored and their Lordships will revert to them in considering the question of a stay of proceedings.

(e)    At 337 said:

However, their Lordships wish to make it clear that this principle does not exclude all references in court proceedings to what has taken place in the House. …

Since there can no longer be any objection to the production of Hansard, the Attorney-General accepted (in their Lordships’ view rightly) that there could be no objection to the use of Hansard to prove what was done and said in Parliament as a matter of history. Similarly, he accepted that the fact that a statute had been passed is admissible in court proceedings. Thus, in the present action, there cannot be any objection to it being proved what the plaintiff or the Prime Minister said in the House (particulars 8.2.10 and 8.2.14) or that the State-Owned Enterprises Act 1986 was passed (particulars 8.4.1). It will be for the trial judge to ensure that the proof of these historical facts is not used to suggest that the words were improperly spoken or the statute passed to achieve an improper purpose.

33    In Crime and Corruption Commission (Qld) v Carne [2023] HCA 28; 280 CLR 555, the High Court considered the scope of parliamentary privilege in Queensland, as enacted by s 8(1) of the Parliament of Queensland Act 2001 (Qld), in terms very similar to Article 9:

Assembly proceedings can not be impeached or questioned

(1)    The freedom of speech and debates or proceedings in the Assembly can not be impeached or questioned in any court or place out of the Assembly.

(2)    To remove doubt, it is declared that subsection (1) is intended to have the same effect as article 9 of the Bill of Rights (1688) had in relation to the Assembly immediately before the commencement of the subsection.

34    In Carne, Gordon and Edelman JJ observed at [106]:

Parliamentary privilege is a “bulwark of representative government” (117). It has long antecedents (118). It allows Parliament to perform its functions without obstruction (119). Parliamentary privilege shields certain areas of legislative activity from judicial or executive review, thereby giving “the legislative branch of government the autonomy it requires to perform its constitutional functions” (120). Parliamentary privilege operates to ensure that a person who participates in parliamentary proceedings can do so knowing, at the time of that participation, that what they say cannot “later be held against them in the courts”, thereby ensuring that such a person is not inhibited in providing information to the Parliament or in otherwise participating in parliamentary proceedings (121). This is the “basic concept underlying article 9” of the Bill of Rights 1688 (122).

(117)    Rowley v O’Chee [2000] 1 Qd R 207 at 218, citing R v Jackson (1987) 8 NSWLR 116 at 118, 121.

(118)    See Bill of Rights 1688, Art 9; Australia, House of Representatives, Parliamentary Privileges Bill 1987, Explanatory Memorandum, p 9; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332.

(119)    Elder, House of Representatives Practice, 7th ed (2018), p 733. See also Szwarcbord v Gallop (2002) 167 FLR 262 at 265 [8].

(120)    Chagnon v Syndicat de la fonction publique et parapublique du Québec [2018] 2 SCR 687 at 698 [1].

(121)    Prebble [1995] 1 AC 321 at 334. See also Rowley [2000] 1 Qd R 207 at 224.

(122)    Prebble [1995] 1 AC 321 at 334, 336.

35    Footnote 121 in the passage from Carne reproduced above cites Prebble at 334, and Rowley v O’Chee [2000] 1 Qd R 207 at 224. The reference to Prebble at 334 draws attention to a particular part of that page reproduced above, being the need for parliamentary privilege 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.

(Emphasis in original.)

36    The reference to “not inhibited”, at the time a Member of Parliament is speaking in the chamber, in the above passage engages the concept of a “chilling effect” on Parliament and its Members if they cannot be confident that what they say is protected from being used against them, including by any direct or indirect challenge, whenever they speak and on whatever topic in the course of parliamentary proceedings.

37    Rowley v O’Chee discussed the role of parliamentary privilege in ensuring that politicians like then Senator O’Chee are not deterred from “[p]reparing or assembling documentary information for future debates and questions in the House”. The relevant passage at 224 referred to by Gorden and Edelman JJ in Carne stated:

Prospective operation. Only the more courageous individuals are prepared to speak their minds knowing full well they will suffer for it afterwards. It is equally to the cause of Parliamentary freedom of speech and debate in future that art. 9 of the Bill of Rights is directed. Suffering pains and penalties for exercising a right or freedom is calculated to have a deterrent impact on the next occasion on which the right or freedom falls to be exercised.

38    It is apparent from the above that s 16 of the PP Act was declared in accordance with s 49 of the Constitution as a specific response to Murphy. In that context, s 16(3) should not be read narrowly. Section 16 reflects a robust view of Article 9 and does not in any way confine its reach. If anything, s 16 might be seen to go somewhat further than Article 9.

Appellant’s reliance on the Hansard extracts

39    Having concluded that s 16(3) should not be construed narrowly, it must now be determined whether parliamentary privilege applied to preclude the admission of the Hansard extracts into evidence. In doing so, it is first necessary to set out the appellant’s submissions before the primary judge in order to identify the purpose for which the extracts were sought to be used, and then to do the same in relation to the appellant’s written submissions before this Court concerning the recusal application.

Reliance on the Hansard extracts in written submissions before the primary judge

40    The appellant’s written submissions before the primary judge referred to the Deputy President’s past life as an Australian Labor Party (ALP) politician in the House of Representatives in the period from 2014 to 2022, culminating in her becoming a shadow minister and thus a member of shadow cabinet from 2021-2022. The submissions then referred to an ALP policy, known as the “Secure Jobs Australia Plan”, which was endorsed by the shadow cabinet. The submissions described the Deputy President as being bound by the policy due to the principle of cabinet solidarity. The implementation of the policy was said to have led to the later enactment of Pt 2-7A of the Fair Work Act, which took place after the Deputy President had left Parliament following the 2022 election.

41    The appellant’s reliance on the policy and the Plan independently of what was said in Parliament does not raise any issues with parliamentary privilege as it does not entail any reference to the content of parliamentary proceedings. However, the appellant went further and sought to bolster their judicial review case by relying upon the content of the Comments and the Question recorded in the Hansard extracts, notwithstanding that they were made before the Plan was endorsed by the shadow cabinet.

42    The appellant’s written submissions before the primary judge relied upon the Comments as supporting the rationale for the (later) policy and the Question was overtly characterised as “actively prosecuting the policy”, apparently prior to its endorsement by the shadow cabinet. Both appear to be characterised by the appellant as different ways of “prosecuting” the policy. That characterisation was then a part of what the appellant relied upon to assert that the two-step reasoning process for recusal had been established. That reasoning process poses the question: “might a fair-minded lay observer reasonably apprehend that the Deputy President might not bring an impartial mind to the disposition of the two applications?”. The argument was developed in the appellant’s submissions by reference to the relevant circumstances established by the evidence, then by reference to the logical connection between those circumstances and the apprehension.

43    As to the relevant circumstances, the appellant’s written submissions before the primary judge said:

The hypothetical observer is to be taken to be informed of the following matters.

(a)    In her former role as a politician, the Deputy President endorsed, and campaigned for, the Secure Jobs Australian Plan and the same-job-same-pay principle expressed in it. That is so because she was member of the shadow cabinet that endorsed the policy, and is also evident from her prosecution of the policy on the floor of the House of Representatives.

(b)    The Secure Jobs Australian Plan singles out coalmine workers as a cohort of workers that were to benefit from that policy.

(c)    She is now sitting on two applications under the statutory enactment of that policy, and these applications concern coalmine workers.

(d)    The applications allege, and it is not disputed, that coal mine workers that stand to benefit from the two applications are being paid wages that are ~35% less when compared to the employees that are employed [by] the operators of two mines.

(e)    This is analogous to the situation the Deputy President characterised as being a “rort” on the floor of parliament.

(f)    A “rort” is conventionally understood to be a fraudulent or dishonest practice [footnote citing a dictionary definition].

(Emphasis added.)

44    As indicated by its use in the passage reproduced above, the phrase “her prosecution of the policy” is evidently a reference to part of the Comments and also the Question, and the reference to a “rort” reflects the use of that word by the Deputy President in the Question.

45    The appellant’s submissions before the primary judge on the topic of asserted relevant circumstances also referenced the content of the Question and the critical tone in which it was delivered. It relied upon the dictionary definition of “rort” referred to above to submit that:

The observer would readily take exception with the applicants in this proceeding having to appear before a decision maker who has characterised equivalent pay arrangements between employer and employee as fraudulent or dishonest.

46    In discussing the logical connection between the circumstances referred to above and the apprehension of bias, the appellant’s written submissions referred to the statutory criteria to be applied by the Deputy President, which prevent her from making a regulated labour hire arrangement order if she is satisfied that “it is not fair and reasonable in all of the circumstances to do so”. That reasoning process was described as “open-textured” and a “value laden analysis, turning on fairness and reasonableness”. The appellant submitted that an observer would apprehend that, in the course of the proceeding, the appellant would advance factual and legal matters to persuade the Deputy President that making the order sought would not be fair and reasonable. The logical connection between the statutory criteria and the feared deviation from deciding the applications on their merits was articulated in the following way:

Simply put, the observer would understand why the applicants are disquiet about the Deputy President deciding over statutory criteria conditioned with questions of fairness and reasonableness, when she has already articulated that coalmine workers should benefit from what a RLHAO [regulated labour hire arrangement order] can provide, and has already articulated analogous situations to be fraudulent and dishonest.

47    The appellant’s written submissions in reply before the primary judge referred to the respondent’s submissions before her Honour, submitting:

The RS [Respondent’s Outline of Submissions] does not properly account for all relevant circumstances because doing so only serves to highlight how grossly inappropriate the situation actually is. The Deputy President was sitting in judgment over the statutory embodiment of her own policy. That policy singled out the MEU’s members as the benefactor of it. The Deputy President, by contrast, characterised the business practices of the Programmed entities as fraudulent, dishonest, and productive of “not the sort of country we should be striving to be.”

48    The above submission implicitly and explicitly refers to the Comments and the Question. The phrase “statutory embodiment of her own policy” in the fourth line is, in context, at least in part a reference to the Deputy President’s support of the policy in Parliament, alleged to be manifested through the making of the Comments and the Question. The quotation at the end of the above submission reproduces the majority of the last sentence of the Comments.

49    Further, the appellant’s written submissions in reply stated:

The logical connection is obvious when all relevant circumstances are objectively evaluated.

(a)    The Deputy President’s policy singled out the MEU’s [respondent’s] members as the putative victor in the applications below. Her parliamentary statements about “Ron and Simon” likewise suggest the same result.

(b)    Her parliamentary statements about the business of labour hire, by contrast, suggests that her Honour regards the business practices of the Programmed entities as perpetuating a fraud or a dishonest state of affairs.

(c)    There is a logical connection between these matters and the question of whether it is “fair and reasonable” to make a regulated labour hire arrangement order, because the circumstances suggest that the Deputy President is predisposed to find for the MEU [respondent], as her policy and public statements all collectively suggest.

Reliance on the Hansard extracts in written submissions on appeal

50    The appellant has taken substantially the same approach as before the primary judge in its written submissions in the substantive appeal, albeit with some variation. The respondent contends that this variation goes beyond the proscription in s 16(3)(c) (inferences and conclusions) so as to engage the proscription in s 16(3)(a) and/or (b) (good faith and the like). However, it is not necessary to consider those additional paragraphs further in light of the more direct and straightforward engagement of s 16(3)(c). The consideration of those submissions in these reasons is necessarily confined to the issues of parliamentary privilege and not the merits of the substantive appeal. The key passages are addressed below by reference to particular grounds of appeal and the corresponding paragraphs of the primary judge’s reasons. Only the clearer examples relied upon by the respondent are addressed.

51    Appeal ground 2 challenges PJ [38] and takes issue with the primary judge’s finding that a hypothetical observer can or would distinguish between the personal views of a Member of Parliament and those expressed on the floor of the Parliament, as well as the reasons for reaching that conclusion. The appellant submits that no such distinction can be drawn because people are taken at their word and parliamentarians do not mislead and are not allowed to mislead. The appellant also submits that an observer does not have the capacity to read between the lines of the Hansard extracts. The respondent contends that this argument goes squarely to good faith reasoning, proscribed by s 16(3)(a) and/or (b), rather than the proscription in s 16(3)(c).

52    The appellant also submits that nothing in the Hansard extracts “suggests anything but that the Deputy President regarded labour hire as fraudulent or dishonest, and productive of the Australia that she does not want to live in”. Consistent with the approach taken before the primary judge, the appellant relies on the content of the Hansard extracts to assert that the Deputy President supported the policy and that it might therefore be apprehended that she might depart from determining the applications on their merits when considering and applying the legislation said to reflect the policy.

53    The approach taken to appeal ground 3, challenging PJ [36], [44] and [47], follows that for appeal ground 2, with the submission relevant to parliamentary privilege being that the primary judge erred in failing to find that the Hansard extracts might establish that the Deputy President was an advocate for the same-job-same-pay principle set out in the Plan. The appellant submits in the substantive appeal that it did not matter that the Deputy President’s statements in the Hansard extracts were made before the Plan was published because all this would demonstrate to the observer is that she was alive to and likely involved in the formation of the policy that became the Plan.

54    In relation to appeal ground 1, addressed last in the appellant’s written submissions for the substantive appeal, the appellant argues that justice must be seen to be done. In doing so, the appellant identifies the circumstances asserted to be relevant, including that the Deputy President, in her former role as a politician, advocated for the Plan and the same-job-same-pay principle. The appellant again relies on the Comments and the Question recorded in the Hansard extracts in an endeavour to establish the asserted error by the primary judge in not upholding the judicial review challenge to the dismissal of the recusal applications.

The application of parliamentary privilege to the Hansard extracts

55    The question to be determined is whether parliamentary privilege precluded the Hansard extracts from being admitted into evidence before the primary judge for the purpose of the appellant’s submissions at first instance, and whether it likewise precludes them from being relied upon for the purposes of the appellant’s submissions in this appeal, directed to the same end. The respondent and the intervener rely upon the proscription in s 16(3)(c), while the appellant contends that this provision neither precluded the usage of the Hansard extracts before the primary judge, nor their continued use in substantially the same way in this appeal.

56    There is no dispute that the Hansard extracts fell within s 16(2) as concerning proceedings in Parliament. The dispute turns on the application of s 16(3)(c). The focus is on “purpose” in the chapeau to s 16(3), and on the phrase “inferences or conclusions” in paragraph (c).

57    The chapeau to s 16(3) proscribes, inter alia, evidence being tendered or received that falls within the ambit of parliamentary privilege if it is by way of, or for the purpose of, any of the usages contained paragraphs (a) to (c). The proscription can only be avoided if the purpose for which proceedings in Parliament are sought to be deployed is not a prohibited purpose; and if there is any purpose which is not prohibited, then it can be deployed for that limited non-proscribed purpose: Rann v Olsen at [74] (Doyle CJ). The particular prohibition relied upon by the respondent, supported by the intervener, is in paragraph (c), concerning the appellant’s reliance on the Hansard extracts, as evidence concerning proceedings in Parliament, by way of, or for the purpose of:

drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

58    The Full Court in BDR21 explained the practical scope of s 16(3), confined to what is relevant to this proceeding, both below and on appeal, as follows:

[100]    … s 16(3) is overtly directed and confined to the conduct of proceedings in a court or tribunal. It proscribes as unlawful in such a proceeding the tender or receipt of evidence, the asking of questions, or the making of statements, submissions or comments concerning proceedings in the Parliament, as defined, by way of, or for the purposes set out in, s 16(3)(a) to (c). It is important to note therefore that the limitation in s 16(3) is not confined to the adducing of evidence, nor to a particular purpose, as it extends to such things as allegations and to conduct having the proscribed character. ...

[104]    On this interpretation, s 16(3) of the PP Act has no greater effect than, for example, a provision of the Evidence Act 1995 (Cth) that precludes the admission of, or limits the use of, particular evidence in a court to which particular evidentiary provisions apply. …

59    The later observation was not equating s 16(3) to a rule of evidence, but rather reasoning analogously to explain one effect of its operation on the availability of evidence due to the operation of parliamentary privilege. The concept of a confined but permissible use of evidence is a familiar one, and what is permitted often ends up being a question of characterisation. For example, evidence may be hearsay and therefore inadmissible to prove the truth of what was said outside court, but not inadmissible if sought to be used for a non-hearsay purpose, such as to establish the mere fact that something was said. It may be necessary to examine carefully how the contents of parliamentary proceedings are sought to be deployed and the purpose of their deployment, as has been done in this case above at [39] to [54] in considering the relevant aspects of the appellant’s submissions before the primary judge and in this appeal.

60    To adduce evidence of statements made by a Member of Parliament in Parliament, who later becomes an executive decision-maker, in advancing a claim of apprehended bias will ordinarily entail seeking to use those statements for the “purpose” of contending that they are a basis upon which a fair minded observer might apprehend that the decision maker might not decide the case according to its merits. That is, within the meaning of s 16(3)(c), it involves either or both of the following:

(a)    inviting an inference as to what the fair-minded hypothetical observer would or might think; or

(b)    inviting a conclusion that the statements have the character of something that could found the relevant apprehension or are matters from which such an apprehension of bias can reasonably be drawn.

As the following reasons demonstrate, that is precisely what occurred before the primary judge and what the appellant seeks to do again in the substantive appeal.

61    While care must be taken not to accept too readily an assertion of a benign purpose, or a particular characterisation of that purpose, given the Constitutional significance of parliamentary privilege, there has been no disguising of the purpose in this case. The appellant’s attempt at a benign characterisation as to what was sought to be achieved by the use of the Hansard extracts must give way to the express content of the relevant portions of the appellant’s written submissions to the contrary before the primary judge and in the substantive appeal, set out above. The appellant’s sole objective in adducing the Hansard extracts and making submissions about them is clear and unambiguous: to support a finding of jurisdictional error in the Deputy President’s dismissal of the recusal applications. The critical issue, however, is the characterisation of how the appellant seeks to advance that objective by its reliance on the Hansard extracts.

62    Both inferences and conclusions are generally of a factual nature. But that does not mean that the proscription in s 16(3)(c) is confined to the process of finding only “actual facts” as the appellant would have it, a characterisation that would, in many cases, neuter the protection given to proceedings in Parliament. Protective legislation of this kind, with its ancient and constitutional roots, should not readily be restricted in such an artificial way. Words like “inferences” and “conclusions” in s 16(3)(c) should not be confined to the meanings they might have in the law of evidence or curial fact-finding, although analogies may assist in understanding the wide scope of those concepts in a given context.

63    The word “inferences” in its ordinary usage facilitates a wide range of matters being established by a process of reasoning. Non-exhaustively, it may be the basis for finding the existence of a particular fact, circumstance, state of mind or result, or even the existence of a relevant connection between several other such things, to name some obvious examples. It plainly extends to things such as the existence of motivations, intentions and associations, or anything else that might explain why something was said or done. Viewed in that way, proscribing the drawing or inviting the drawing of inferences in part or in whole from proceedings in Parliament is a very wide prohibition. That breadth is readily justified by the very foundational interest it is directed to protecting: the freedom of Parliament and its members, extending to those involved in the processes of Parliament such as witnesses, to perform a vital constitutional function without let or hinderance, encompassing any chilling effect resulting from such a use taking place, either now or in the future. This is reflected in the proscription not applying to the establishment of the bare fact that something was said in Parliament, and nothing more, an exception to the operation of parliamentary privilege that is not always easy to apply. In this case, the bare fact of what was said in Parliament by the Deputy President in the Hansard extracts would not have been of any use to the appellant. It plainly went further than that.

64    The word “conclusions” in its ordinary usage can operate in the same way as “inferences” or differently. It usually connotes the final outcome of something, including by a process of reasoning, rather than something apparent on its face. It, too, gives rise to a very wide prohibition serving the same protective purpose in relation to proceedings in Parliament. While it tends to connote something more than just an inference, it is directed to much the same ends: again, non-exhaustively, finding the existence of matters such as facts, circumstances, states of mind, results and connections. It also plainly extends, as with inferences, to conclusions about the existence of motivations, intentions and associations, or anything else that might explain why something was said or done, or which might have a relevant bearing on a later state of affairs, in this case being (potentially) the requirement for a recusal.

65    While the appellant makes no allegation of impropriety in Parliament by the Deputy President, the reasoning process as to the proposed use of the Hansard extract in Amann Aviation, found by Beaumont J to be proscribed by parliamentary privilege (as set out at [19] above), is not dissimilar to the appellant’s reasoning process in this case. It entails an examination of the circumstances in which the Deputy President came to ask the Question and make the Comments, and what could be gleaned from what she said, at that time and in her capacity as a Member of Parliament, as to her likely current views in deciding the applications before her.

66    On the intervener’s argument, the appellant’s use of the Hansard extract, both before the primary judge and on appeal, goes beyond reliance upon a historical and non-contentious fact. Instead, the appellant’s submissions sought for inferences and conclusions to be drawn to establish circumstances from which it could be concluded that a hypothetical observer might reasonably apprehend bias, contrary to the proscription in s 16(3)(c). The Hansard extracts are thus asserted by the intervener to have been deployed, and continue to be deployed in this appeal, not merely to record the fact of what was said, but as a basis for drawing inferences and reaching conclusions regarding the significance of what was said in support of the case for recusal, in conjunction with actions and circumstances occurring outside parliamentary proceedings. That submission should be accepted.

67    In oral submissions, the respondent referred to the appellant’s opening and reply submissions before the primary judge, such as those reproduced at [43], [45]-[47] and [49] above, and characterised them as seeking the very thing that parliamentary privilege seeks to prevent. That is, the respondent submits that those submissions invited the primary judge to draw inferences and conclusions about the Question and the Comments recorded in the Hansard extracts. That submission should also be accepted as accurately reflecting the use sought to be made of them.

68    As noted above at [52], the appellant’ written submissions for the substantive appeal assert that nothing in the Hansard extracts suggests other than that the Deputy President regarded labour hire as fraudulent or dishonest, and productive of the Australia that she “does not want to live in”. On the respondent’s argument, that submission seeks an inference and/or conclusion to be drawn from both the Comments and the Question, recorded in the Hansard, contrary to the proscription in s 16(3)(c). The respondent’s submissions about like arguments advanced before the primary judge, relying on s 16(3)(c), apply also for these appeal submissions. That is a fair way in which to characterise both sets of submissions.

69    In relation to the appellant’s submission before the primary judge that the Deputy President, when speaking in Parliament, was “prosecuting the policy”, the respondent correctly characterises that appellant’s submission as inviting the drawing of an inference about the Deputy President’s likely current state of mind and as inviting the primary judge to find that the hypothetical observer would conclude that the Deputy President was campaigning for the Plan, relevantly including in Parliament.

70    In relation to the appellant’s submissions in reply before the primary judge, reproduced above at [49], the respondent again correctly submits that these submissions seek for inferences and conclusions to be drawn from what is said in Parliament, and in particular that:

(a)    the reference to the “Deputy President’s policy” in (a) of that submission seeks the drawing of an inference or the reaching of a conclusion that the Deputy President is the owner or sponsor of the policy based upon what she said in Parliament, including her comparison of the two putative employees in the Comments;

(b)    the focus of (b) of that submission is on the Deputy President’s state of mind towards labour hire pay arrangements based on what she said in Parliament; and

(c)    the focus of (c) of that submission is on the Deputy President’s state of mind, inviting an inference, in part based upon what she said in parliament, that she is predisposed to find for the respondent.

71    The respondent contends that the interposing of the fair-minded lay observer does not change the characterisation of the reliance placed on the Hansard extracts. That submission should be accepted. That is because the submissions advanced by the appellant unavoidably entails the primary judge and this Court being asked to draw inferences or conclusions from a factual substratum upon which the fair-minded lay observer might apprehend a lack of impartiality which includes what the Deputy President said and meant by what she said in the Parliament.

72    Further, as the respondent points out, if parliamentary privilege did not apply to prohibit the use to which the appellant put the Hansard extracts before the primary judge and maintains on appeal, that may result in a real and significant chilling effect. As counsel for the respondent succinctly and evocatively put it:

… a parliamentarian would not have confidence that anything said by them in parliament could not be relied on in future to rule them out of certain tasks or functions, because it isn’t just about a deputy president of the Fair Work Commission in a particular case. The appellant’s argument could apply potentially to a range of roles in the future, some foreseen, some not foreseen, some foreseeable, not foreseeable. That’s the very point. They would have no confidence at all at the time they are there to speak, that something wouldn’t be used against them to say that they are incapable of serving that function, whether in a given case, because they’re on the Fair Work Commission, or from serving some other statutory role or function, ombudsman something. Who knows. The whole gamut of potential possibilities that could realistically deter parliamentarians or create an incentive for them to be more circumspect, and that’s precisely what parliamentary privilege is designed to avoid.

73    In this way, the appellant’s use of the Hansard extracts is also contrary to the underlying operation of Article 9. Even accepting that no allegation is made about the state of mind of the person making the statement at the time it was made, the prospect that words uttered by a Member of Parliament, in Parliament, could later be raked over in order to establish apprehended bias is capable of producing a chilling effect in the manner articulated by the respondent. That risk is particularly acute for parliamentarians who contemplate the possibility of a career after leaving politics. It is greater where that prospective career involves a public role, and greater again where it involves an official role. The possibility of such a chilling effect, recognised in the authorities, supports the conclusion that s 16(3) was intended to extend this far. As was pointed out in the extract of the Explanatory Memorandum for the Bill that became the PP Act reproduced by Beaumont J in Amann Aviation at 230 concerning what became s 16(3)(c) in relation to “drawing inferences or conclusions to support a criminal or civil action”:

Basically, what they prevent is proceedings in Parliament being ‘used against’ a person in the broad sense, that is, not only being made the subject of a criminal or civil action, such as where a member is sued for words spoken in debate, but also being used to support a civil or criminal action against a person.

(Emphasis in the judgment.)

74    The appellant’s apparent sole purpose in having the Hansard extracts admitted into evidence was to draw or invite the drawing of inferences or conclusions from proceedings in Parliament. That use was impermissible. The Hansard extracts should not have been admitted into evidence. They cannot be relied upon in this appeal. These conclusions are subject to the constitutional issue considered next.

Whether parliamentary privilege is affected by Chapter III of the Constitution

75    At the hearing before us, an issue arose as to whether or not the primary judge, in hearing the application for judicial review brought under s 39B(1) of the Judiciary Act 1903 (Cth), was exercising federal jurisdiction within the limits by which it was conferred by reference to s 75(v) of the Constitution. It is common ground that this issue was resolved in the affirmative by the High Court in Deripaska v Minister for Foreign Affairs [2026] HCA 14, a decision handed down during the hearing before us and addressed in post-hearing submissions. It follows that the operation of Chapter III of the Constitution is the same in this Court when hearing an application under s 39B(1) of the Judiciary Act as it is in the High Court.

76    The appellant contends that s 16(3), as part of a statute of the Parliament, is to be read as being subject to Chapter III, and in particular the principles expounded by the High Court in Graham v Minister for Immigration and Border Protection [2017] HCA 33; 263 CLR 1 at [47]-[48] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). The principle contained in Graham which the appellant seeks to apply is that Parliament cannot exercise any source of legislative power so as to deny to the High Court exercising jurisdiction under s 75(v) of the Constitution, and thus to this Court when exercising jurisdiction bestowed by s 39B(1) of the Judiciary Act by reference to s 75(v), the ability to enforce the legislated limits of a Commonwealth officer’s power.

77    Even if, contrary to the submissions of the respondent and the intervener, Chapter III is constitutionally capable of applying to affect the scope of s 16(3), a question of characterisation remains as to whether that provision denies this Court the ability to enforce the law as to jurisdictional error on the part of the Deputy President. As the majority in Graham stated at [48]:

The question whether or not a law transgresses that constitutional limitation is one of substance, and therefore of degree. To answer it requires an examination not only of the legal operation of the law but also of the practical impact of the law on the ability of a court, through the application of judicial process, to discern and declare whether or not the conditions of and constraints on the lawful exercise of the power conferred on an officer have been observed in a particular case.

78    That is, even if the Graham principle is capable of affecting a determination that parliamentary privilege under s 16(3) applies to preclude the Hansard extracts from being admitted into evidence, that does not necessarily mean that this determination impedes in a relevant way the ability of this Court to enforce the jurisdictional limits on the Deputy President’s exercise of power, as a question of substance and degree. However, it is unnecessary to engage in that process of characterisation, because, for the reasons that follow, Chapter III does not apply to limit s 49 of the Constitution and therefore does not affect the scope of s 16(3) which was legislated as part of a declaration under s 49.

79    The appellant contends that in order to avoid invalidity arising from the Graham principle, s 16(3)(c) must be read down or severed. Arguments on this issue are advanced in their written submissions, oral submissions and post-hearing written submissions, but again only need to be reached if the Graham principle is capable of applying to a determination under s 16(3) in the first place.

80    The central thesis of the appellant’s argument is that s 16(3) offends the Constitution to the extent that it supports the outcome sought by the respondent of seeking a ruling that the primary judge should not have received the Hansard extracts in evidence (other than examining them in order to determine whether s 16(3)(c) applied), or in any way being used, considered or relied upon them as relevant evidence on the question of whether Deputy Commissioner’s refusal to recuse was affected by jurisdictional error. That outcome is framed in substance as an unconstitutional encroachment on the judicial power bestowed by Chapter III. The offence to the Constitution is said to arise from a deprivation of the primary judge’s ability to enforce the limits of a power conferred on an officer of the Commonwealth (the Deputy President) for the purposes of s 75(v), centrally relying upon Graham at [47]-[48].

81    The contrary argument by the respondent and by the intervener is to the following effect:

(a)    Section 16(3) is no ordinary statutory provision, but rather the product of the exercise of legislative power bestowed by s 49 within Chapter I of the Constitution. Section 49 deals with, and only with, the powers, privileges and immunities of the Parliament, not the executive government (Chapter II), nor the judicature (Chapter III). The Graham principle is not therefore capable of applying to s 16(3).

(b)    Alternatively, and only if the Graham principle is capable of applying to s 16(3), the application of that provision does not breach that principle, when proper regard is had to its legal operation as a question of substance and degree, and by comparing the operation of s 16(3) with the materially different provisions under consideration in Graham. Parliamentary privilege is no different to other impediments to the admission of evidence, decided by a court. If anything, parliamentary privilege is less burdensome than some other forms of privilege or immunity impediments to the receipt of evidence, such as public interest immunity or legal professional privilege, because the evidence potentially affected by parliamentary privilege is able to be openly seen and considered by the judge hearing the proceeding in order to decide whether the privilege applies. This differs from the provisions in Graham which enabled the Minister to direct that relevant information used in making a decision to cancel visas be withheld from, inter alia, a Court reviewing that exercise of executive power.

82    The appellant’s argument as to the application of the Graham principle cannot be accepted. The primary arguments advanced by the respondent and intervener are correct and must instead be accepted. Accordingly, there is no need to descend into the characterisation exercise that would be necessary if the Graham principle did apply, which in any event also seemed unlikely to succeed.

83    The appellant’s argument depends in the first place upon Chapter III of the Constitution not just applying to the operation of Chapter I, but doing so in a way that encroaches on the privileges of both Houses of Parliament as provided by s 49 within that Chapter. Those privileges are the same as those of the House of Commons, subject to any declaration that Parliament makes under that provision about the powers, privileges and immunities of both Houses, including of their committees. On its face, s 49 reveals that at federation the Constitution gave Parliament the power that the British Parliament had to regulate its own affairs, unfettered by other chapters of the Constitution and unimpeded by what might happen outside of parliamentary processes. Viewed in that way, s 49 may be seen as being fundamental to the very existence and effective exercise of Commonwealth legislative power. The live question is whether an implication drawn from Chapter III can override or otherwise confine the express terms of s 49, or confine the express terms of the legislation enacted pursuant to s 49 to declare, instead of, or as well as, the conferral in s 49, what those powers, privileges and immunities are.

84    The rebuttal of this central plank of the appellant’s argument by the respondent and the intervener is encapsulated by Beaumont J in Amann Aviation. In responding to a similar argument advanced as to the invalidity of s 16(3) and after referring to the complete freedom of speech envisaged by Article 9 and the PP Act, his Honour said at 231:

Further, in my view, it cannot be said that the [PP] Act involves any impermissible interference with the judicial function. In R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162, 166, it was held that it is for the courts to judge of the existence in either House of Parliament of a privilege but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise. There is nothing in s 16, in its terms or by any process of implication, which purports to take away the power of the courts in these respects. The Act proceeds upon the footing that it is open to, and no doubt, the duty of, the courts to construe the provisions of the Act and to apply them in a particular case. The actual occasion for exercise of a privilege is another matter. In my opinion, s 16 is a valid provision.

85    Justice Beaumont can be understood as saying that while it is for the courts to adjudicate upon the existence of parliamentary privilege in a given situation, and therefore its application to a proceeding, it was for Parliament, and Parliament alone, to determine the parameters of parliamentary privilege, as had been done by s 16(3). In that way, parliamentary privilege in relation to proposed evidence is dealt with by courts in substantially the same way as any other privilege or immunity, albeit under different regimes by which the court may see and evaluate the material over which the claim is made. If the proposed evidence is rendered inadmissible, the consequence may sometimes be that a proceeding that depends upon such evidence will not be as strong, or even will fail or not be viable in the first place. Any such evidence has to be obtained from somewhere else, if otherwise available, and not from parliamentary proceedings. That outcome may be unpalatable, not least because the excluded evidence can be read by anyone, with the Hansard being publicly available. However, that is no proper basis or reason for not giving effect to what has been mandated by the Constitution and legislated in accordance with that mandate.

86    Justice Beaumont’s succinct summary of what the High Court said in R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 is undoubtedly correct. Dixon CJ in delivering the judgment of all seven justices addressed the Parliament’s powers, privileges and immunities by reference to those of the British House of Commons as provided by s 49 of the Constitution, there not having been a declaration by Parliament on that topic at that time. The case arose in the context of the power to punish for contempt of Parliament. While the High Court was dealing with what is ordinarily the most judicial of powers – punishment – rather than the protection of free speech of Parliament, the reasoning applies equally to both. Section 49 was found to have bestowed on Parliament the power to punish for contempt unfettered by any other provision of the Constitution, not merely to have set the parameters by which a court might impose such punishment.

87    In answer to the proposition that the rigidity of the Constitution in the division of legislative, executive and judicial power meant that nothing with the character of judicial power of that kind could be bestowed upon the Parliament, Dixon J said the following in parts of 165-6 and 167, which are better reproduced than summarised:

The answer, in our opinion, lies in the very plain words of s. 49 itself. The words are incapable of a restricted meaning, unless that restricted meaning be imperatively demanded as something to be placed artificially upon them by the more general considerations which the Constitution supplies. Added to that simple reason are the facts of the history of this particular branch of the law. Students of English constitutional history are well aware of the controversy which attended the establishment of the powers, privileges and immunities of the House of Commons. Students of English constitutional law are made aware at a very early stage of their tuition of the judicial declarations terminating that controversy, and it may be said that there is no more conspicuous chapter in the constitutional law of Great Britain than the particular matter with which we are dealing. It is quite incredible that the framers of s. 49 were not completely aware of the state of the law in Great Britain and, when they adopted the language of s. 49, were not quite conscious of the consequences which followed from it. We are therefore of opinion that the general structure of this Constitution, meaning by that the fact that it is an instrument creating a constitution of a kind commonly described as rigid in which an excess of power means invalidity does not provide a sufficient ground for placing upon the express words of s. 49 an artificial limitation.

…

Then it was argued that this is a constitution which adopts the theory of the separation of powers and places the judicial power exclusively in the judicature as established under the Constitution, the executive power in the executive, and restricts the legislature to legislative powers. It is said that the power exercised by resolving upon the imprisonment of two men and issuing a warrant to carry it into effect belonged to the judicial power and ought therefore not to be conceded under the words of s. 49 to either House of the Parliament. It is correct that the Constitution is based in its structure upon the separation of powers. It is true that the judicial power of the Commonwealth is reposed exclusively in the courts contemplated by Chap. III. It is further correct that it is a general principle of construction that the legislative powers should not be interpreted as allowing of the creation of judicial powers or authorities in any body except the courts which are described by Chap. III of the Constitution. Accordingly, it is argued that a strong presumption exists against construing s. 49 in a sense which would enable the particular power we have before us to be exercised by the Senate or the House of Representatives. It was pointed out that in the case of the Inter-State Commission s. 101 had received a construction which made it impossible to invest the Inter-State Commission with the character of a court and confide to it judicial functions, because it was not a body which fell within Chap. III. That was relied upon as an instance or example of the kind of construction or interpretation which we were urged to adopt in the case of s. 49.

The consideration we have already mentioned is of necessity an answer to this contention, namely, that in unequivocal terms the powers of the House of Commons have been bestowed upon the House of Representatives. It should be added to that very simple statement that throughout the course of English history there has been a tendency to regard those powers as not strictly judicial but as belonging to the legislature, rather as something essential or, at any rate. proper for its protection. This is not the occasion to discuss the historical grounds upon which these powers and privileges attached to the House of Commons. It is sufficient to say that they were regarded by many authorities as proper incidents of the legislative function, notwithstanding the fact that considered more theoretically – perhaps one might even say, scientifically – they belong to the judicial sphere. But our decision is based upon the ground that a general view of the Constitution and the separation of powers is not a sufficient reason for giving to these words, which appear to us to be so clear, a restrictive or secondary meaning which they do not properly bear.

88    Further, unlike the grant of legislative power contained in s 51, s 49 was not made subject to the rest of the Constitution, and thus not explicitly made subject to Chapter III. This provides additional support for the conclusion that s 49 prevails over the general provisions of Chapter III, and therefore logically s 49 prevails no less over the implications arising from that chapter: see Re Tracey: Ex parte Ryan [1989] HCA 12; 166 CLR 518 at 581 (Deane J); see also Polyukhovich v Commonwealth [1991] HCA 32; 172 CLR 501 at 626 (Deane J).

89    This understanding of s 49 has been reinforced by numerous intermediate appeal decisions which have considered the history and scope of parliamentary privilege.

90    In Laurance v Katter [2000] 1 Qd R 147, Fitzgerald P, in the Queensland Court of Appeal, concluded that s 16 was not to be read down by reference to the implied freedom of political communication. In reaching that conclusion, his Honour stated at 158-159 (citations omitted):

Leaving aside any question concerning whether freedom of political discourse is correctly regarded as an individual right, its existence has been implied into the Commonwealth Constitution because it is seen as necessary to the effective working of our representative democracy. Parliamentary privilege and immunity are other aspects of the same fundamental public interest. The reconciliation of those competing considerations is committed to the Commonwealth Parliament by s. 49 of the Constitution. As will be seen, Richards [Fitzpatrick and Browne] provides strong authority for giving the ‘‘very plain words of s. 49’’ (p. 165) their natural meaning. While an implied constitutional freedom of political discourse had not been identified at the time when Richards was decided, it would be contrary to the entire tenor of that decision to invalidate s. 16 of the Parliamentary Privileges Act by reference to such a constitutional implication, or to require it to be read down to accommodate such an implication. Indeed, unless the ‘‘powers, privileges and immunities’’ of the House of Commons at the establishment of the Commonwealth applied to the Senate and the House of Representatives subject to an implied constitutional freedom of political discourse despite the ‘‘very plain words of s. 49’’ of the Constitution, either invalidating or reading down s. 16 of the Parliamentary Privileges Act by reference to such a constitutional implication would have the extraordinary consequence of subjecting a law made under s. 49 to a limitation that did not apply to the ‘‘powers, privileges and immunities’’ which s. 49 provided were to apply until such a law was made. That cannot have been intended by those who framed the Constitution. Further, support for the view that s. 16 of the Parliamentary Privileges Act does not offend an implied constitutional freedom of political discourse is to be found in John Fairfax Publications Pty Ltd v. Doe (1995) 37 N.S.W.L.R. 81; see 90 (per Gleeson C.J.) and 107ff. (per Kirby P.).

91    President Fitzgerald also rejected a further argument that s 16(3) is unconstitutional because it impermissibly interferes with the exercise of judicial power. After conducting a detailed analysis of authorities discussing Ch III and the nature of judicial power, his Honour returned to Fitzpatrick and Browne (referred to in his Honour’s reasons as Richards) and Re Tracey and stated at 191-192:

Over and above the matters which have been referred to, it is established that s. 49 stands in a special position in relation to Chapter III of the Constitution: see Richards and Re Tracey; Ex parte Ryan (1989) 166 C.L.R. 518, 574, 579, 581. In Richards, it was held by the High Court that powers which ‘‘theoretically – perhaps one might even say, scientifically – … belong to the judicial sphere’’ (p. 167) are exercisable by the Houses of the Commonwealth Parliament under s. 49 of the Constitution. Earlier, at 165, the Court had said that the ‘‘very plain words of s. 49’’ were ‘‘incapable of a restricted meaning, unless that restricted meaning be imperatively demanded as something to be placed artificially upon them by the more general considerations which the Constitution supplies’’. That possibility was rejected at 166, where it was said that ‘‘the general structure of the Constitution, meaning by that the fact that it is an instrument creating a constitution of a kind commonly described as rigid in which an excess of power means invalidity does not provide a sufficient ground for placing upon the expressed words of s. 49 an artificial limitation’’. …

Likewise in Tracey, in referring to the exercise of power bearing the characteristics of judicial power by the Houses of the Commonwealth Parliament. Deane J. at 581, after referring to Richards, said that ‘‘the special provisions of s. 49 of the Constitution, which were not expressly made subject to Ch. III, prevail over the general provisions of that Chapter’’. Further, in Polyukhovich, his Honour said at 626:

“Some exclusions from the scope of Ch. III

The cases establish that s. 71’s vesting of the judicial power of the Commonwealth exclusively in Ch. III courts is subject to at least two exceptions in the area of the trial and punishment of unlawful conduct. The first exception relates to the power of each of the Houses of Parliament to punish for contempt or breach of privilege: see Reg. v. Richards; Ex parte Fitzpatrick and Browne [(1955) 92 C.L.R 157]…. The first of those exceptions flows from the provisions of s. 49 of the Constitution which, unlike s. 51, were not expressly made subject to Ch. III: see Re Tracey; Ex parte Ryan [(1989) 166 C.L.R., at p. 581]….”

…

The High Court was not directly concerned in either Richards or Tracey with the question of the extent to which legislative interference in the judicial process is permitted by s. 49. Nonetheless, the statements set out from Richards and Tracey logically carry with them the proposition that a law which bears a sufficient connection to s. 49 is not invalid because of implicit constitutional prohibitions upon interference with the judicial process or, for that matter, the functioning of State courts as organs of State government. Even if s. 49 were required to be read down to accommodate the constitutional implications which are derived from the separation of powers and the federal compact for which the Constitution provides, I have found nothing in the authorities related to the limits on Commonwealth legislative power which flow from those implications which leads to a conclusion that s. 16(3) of the Parliamentary Privileges Act goes beyond the boundaries of validity.

92    Further, Fitzgerald P found that a provision made under s 49 is not unconstitutionally invalid because it affects private rights and liabilities, particularly in the context of causes of action for defamation. Section 16, being enacted under s 49, is thus subject to the same constitutional protections, being those under Article 9. In that respect, Fitzgerald P observed at 193-195:

More generally, it is in my opinion fallacious to find a basis for invalidity in a Commonwealth statutory provision enacted in reliance on s. 49 of the Constitution in the circumstance that it impacts upon private rights and liabilities or, more particularly, causes of action for defamation, either by effectively denying claims that would otherwise exist or by affecting the outcome of other claims, or even in the circumstance that it is capable of producing results which are unjust between the parties. Examples can be found which starkly illustrate the impact which parliamentary privilege can have on individual rights and liabilities, and the distortion which it can produce in particular disputes: see, for example, Wright and Advertiser Newspapers Ltd v Lewis (1990) 53 S.A.S.R. 416, and Prebble. It is irrelevant to the present issue whether the decision of the Full Court of South Australia in Wright and of the New Zealand Court of Appeal in Prebble should be preferred to the opinion of the Privy Council in the latter case. Whether or not some actions should be stayed because of the consequences of parliamentary privilege, it would not be possible to fashion a law with respect to parliamentary privilege which did not have the potential for injustice in some circumstances; article 9 of the Bill of Rights plainly was capable of producing injustice for individuals, and any law which accords absolute privilege to statements made by a particular group in specified circumstances must necessarily be capable of injustice if abused, for example, if maliciously false defamatory statements are made. Such a consequence does not mean that a law enacted pursuant to a constitutional power to declare parliamentary ‘‘powers, privileges and immunities’’ is invalid as beyond power.

…

It follows from what I have said that, in my opinion, s. 16(3) of the Parliamentary Privileges Act is not invalid. That conclusion is consistent with Amann and Hamsher v. Swift (1991) 33 F.C.R. 545. Amann offered another reason for validity (see p. 231), namely, that the subsection is merely declaratory of the position established by article 9 of the Bill of Rights, which had effectively been given constitutional force by s. 49 of the Constitution. However, the circumstance that s. 16 was enacted ‘‘[f]or the avoidance of doubt’’ concerning the effect of article 9 of the Bill of Rights provides an unpromising start for a comparison between the respective operations of article 9 and s. 16 in order to ascertain whether the latter merely declares the position established by the former. In my opinion, such an inquiry might be warranted only if s. 16(3) were otherwise invalid.

93    President Fitzgerald’s remarks were not endorsed by the other members of the Queensland Court of Appeal as Pincus JA disagreed on this point and Davies JA did not decide it. The High Court granted special leave to appeal but the matter settled before it was heard. However, in Rann v Olsen, Doyle CJ (with whom Perry J agreed at [257] and Lander J agreed at [390]) agreed with Fitzgerald P at [133], stating that:

There can be no doubt that s 49 empowers the Parliament to declare the powers, privileges and immunities of the Senate and of the House of Representatives to be more or less extensive than those conferred and declared by s 49 as at the establishment of the Commonwealth.

94    Chief Justice Doyle further stated at [134]:

If s 16 merely enacts or declares the effect of Art 9 of the Bill of Rights, there can be no question of s 16 being invalid by reason of an implication to be drawn from the terms of the Constitution. It is generally accepted that s 49 is taken to enact the provisions of Art 9. An implication drawn from other provisions of the Constitution must give way before an express provision of the Constitution.

95    Prior J expressed a similar view to Doyle CJ at [228] that:

If s 16(3) of the Parliamentary Privileges Act is declaratory of the operation of Art 9 of the Bill of Rights, no issue of legislative power arises either, because s 49 expressly confers the relevant privilege or immunity. No implied constitutional limitation can override what s 49 expressly requires or authorises: R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 165-167.

96    The treatment of Fitzpatrick and Browne in the cases quoted above is consistent with the approach taken by the Full Court of this Court in BDR21 at [88]-[91] (Rangiah, Bromwich and Cheeseman JJ).

97    Having regard to the above intermediate appeal court statements, it is evident that Fitzpatrick and Browne remains as binding High Court authority for the proposition that the express provisions of s 49 prevail over the general provisions of Chapter III and further that the introduction of the PP Act did not change that constitutional foundation. Section 16 should not be read down by any implied constitutional limitation, including those drawn from Chapter III.

98    The appellant contended that the intermediate appellate authorities considered above, including Laurance v Katter and Rann v Olsen, could not be regarded as safe because they predate Graham. That submission proceeds upon the basis that the implications from Graham somehow differ from the Chapter III implications that were otherwise denied in those authorities. The appellant sought to rely upon the Privy Council’s decision in Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] UKPC 48; 1 WLR 2825. In that case, a parliamentary privilege provision was read down to allow a statement in parliament to be admissible “to explain executive action and to enable its judicial review”: [34] (Lord Mance). However, the factual and constitutional context in Toussaint was different. It concerned the judicial review of an administrative decision, the reasons for which were said to be disclosed in a parliamentary statement. Their Lordships also reached their conclusion upon the bases that the relevant right of review concerning the expropriation of land was itself constitutionally enshrined, and that the admission of ministerial statements to parliament as a form of evidence depended upon the unchallengeable discretion of the Speaker of the House of Assembly. Those features are not present here.

99    Turning back to Australian authorities, there has been recent appellate consideration of parliamentary privilege in Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20 (DPP v President), in which a different conclusion was reached, albeit collaterally, about the relationship between s 49 and Chapter III of the Constitution. The Court of Appeal (Leeming and Stern JJA and Griffiths AJA) found that the New South Wales manifestation of parliamentary privilege, based on Article 9, did not apply to prevent the receipt into evidence of a statement furnished by a witness, who was a sitting judge, to a committee of the New South Wales Parliament, in a recusal application made to that judge. The question of the use that could be made of that statement in the recusal application was left to that judge in hearing the recusal application.

100    While DPP v President has some factors in common with the present case, principally in that it also concerns the admissibility of parliamentary material in a recusal application, it otherwise arose in a significantly different factual, legal and constitutional setting. It was centrally concerned with the application of the limitation on State legislative power in relation to State courts falling within Chapter III by reason of those courts being invested with federal jurisdiction under s 77(iii) of the Constitution as decided in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 (the Kable doctrine).

101    While the conclusion reached in DPP v President on the point relevant to this case may not have been technically obiter because it was identified by the Court of Appeal as being part of the reasons for the conclusion reached, it was one of several collateral or perhaps parallel disputes. The outcome was otherwise agreed between the NSW DPP and the President of the NSW Legislative Council. Contrary to the intervener’s argument before the Court of Appeal, the DPP and the President agreed that the limitation on legislative power in the Kable doctrine had the consequence that Article 9 could not be made applicable by the Imperial Acts Application Act 1969 (NSW) to the District Court in circumstances where it would have the effect of denying a party’s entitlement to apply for recusal, nor deny a party’s entitlement to have the litigation heard and determined by a validly constituted court, relevantly by a judicial officer not affected by the apprehension of bias: DPP v President [53]. Perhaps even more fundamentally, the Court of Appeal’s decision did not (and could not) involve the application of the PP Act, and it did not involve anything said or done by a parliamentarian. Moreover, the decision of the Court of Appeal still left for the judge hearing the recusal application the question of what use could be made of her statement to the parliamentary committee.

102    The intervener in DPP v President was, as in this appeal proceeding, the Commonwealth Attorney-General. The intervener was the sole participant before the Court of Appeal contending that parliamentary privilege did apply. The Court of Appeal rejected the proposition that the Kable doctrine does not apply to reduce the operation of Article 9. Of particular relevance to the appellant’s argument in this appeal proceeding on the application of Graham is what the Court of Appeal said about the reliance of the intervener upon the operation of s 49 of the Constitution:

[74]    The Commonwealth Attorney submitted that s 49 picked up Article 9, and relevantly stood “in a special relation to Chapter III”. It was said that s 49 was “absolute”, while the Chapter III requirement for impartiality was “inherently evaluative”. It was said that Chapter III did not derogate from Article 9 at the federal level, and, “It is not a consequence of the necessary impartiality of a Chapter III court that Article 9 would yield”, and that when one moves to a State court, there cannot be “a more stringent standard or grade of justice for a State court, a State repository of judicial power, than is required of a Federal Court”.

[75]    We do not accept any of this.

[76]    The portion of s 49 upon which the Commonwealth Attorney relied is the opposite of “absolute”. It is defeasible. The starting point that the powers, privileges and immunities of the House of Commons apply is just that: a starting point. Section 49 provides expressly that, after 1901, those powers, privileges and immunities may be enlarged or shrunk. They may vary from time to time. Thus if, for example, the Parliamentary Privileges Act 1987 (Cth) had adopted the course in R v Murphy (1986) 5 NSWLR 18 and expressly permitted cross-examination based on what had been said in Parliament, the stronger view of Article 9 which is generally upheld would be displaced. It is difficult for that reason alone to see how s 49 could have any effect on the implications restricting legislative power which flow from Chapter III. It is also obvious that legislation enacted as contemplated by s 49 cannot override restrictions on legislative power derived from Chapter III. Bearing those points in mind, why ever should the default position which obtained before the newly created Commonwealth Parliament acts as contemplated by s 49 somehow fetter the implications derived from Chapter III? It follows that s 49 is not a separate basis for fending off the consequence that Article 9 cannot apply to a court because if it did it would contravene a constitutionally entrenched minimum. Of course, s 49 is ever more removed from anything that enhances or curtails the effect of Chapter III on the powers, privileges and immunities of a Parliament of a State.

103    With utmost respect, the flaw in the above reasoning in DPP v President is that a declaration under s 49 of the Constitution, such as by s 16(3) of the PP Act, is itself an exercise of the power bestowed by s 49, not a defeasance of that power. There neither is, nor could be, any defeasance of s 49 by the enactment of s 16(3). Nor is the scope of parliamentary privilege in either s 49, or in s 16(3) as declared by Parliament pursuant to s 49, defeasible by the operation of Chapter III, as Fitzpatrick and Browne made clear when it came to imposing punishment by the Parliament rather than by a court.

104    The scope of the privilege initially provided by s 49, being Article 9 insofar as it reflects the position of the House of Commons, however, is capable of being defeasible by a declaration by the Parliament having that effect. That is capable of taking place, although it has not taken place, in the form of legislation such as the PP Act, as s 49 itself provides, albeit without any express reference to Article 9.

105    As to the Court of Appeal finding that it is difficult to see how s 49 could have any effect on the implication restricting legislative power which flows from Chapter III, and concluding that it is obvious that legislation enacted as contemplated by s 49 cannot override restrictions on legislative power derived from Chapter III, both that view and the reasoning that flows from it cannot stand in light of what was said in Fitzpatrick and Browne, especially the passages at 165-6 and 167, reproduced above, and the statements in intermediate appellate decisions to which we have referred.

106    The above reasoning has nothing adverse to say about the rejection by the Court of Appeal of the last part of the intervener’s argument recorded at [74] in DPP v President, reproduced above and therefore does not suggest that the ultimate decision in that case was wrong. While the implications that normally arise from Chapter III give way to the specific terms of s 49 in the Commonwealth sphere to give full effect to the protection bestowed upon the Commonwealth Parliament, that does not mean that those implications are themselves modified. In an area not reached by s 49, relevantly the privilege of a State parliament, those implications may apply with full vigour, unless an implication protecting the privileges of State legislatures is found to arise from ss 106 or 107 of the Constitution (which has not, to our knowledge, been suggested). That is not an outcome of imposing more rigour on State courts than federal courts, but rather of giving less protection to State parliaments than the Commonwealth Parliament, upon a basis founded in the constitutional text.

107    As senior counsel for the intervener before this Court succinctly and correctly put it, Fitzpatrick and Browne makes it clear that s 49, by its plain terms and historical significance in the Constitution and its application to the Commonwealth Parliament, does not yield to implications from Chapter III of any kind, let alone those of the kind considered in Graham. That is, Graham has no work to do in confining the operation of s 49 or s 16(3). That is because any Graham-type encroachment by either s 49 or s 16(3) on the role of a Chapter III court is constitutionally permitted because it is constitutionally authorised by s 49, which in turn authorises s 16(3). Section 49 and thus legislation enacted in the exercise of the power it bestows is not to be read down. The fact that s 49 allows for the privileges to be otherwise declared does not detract from this. The relationship between s 49 and Chapter III was fixed at federation: one does not contract, and the other expand, as a result of the enactment of the PP Act.

108    It follows that no Chapter III issue arises from the operation of s 16(3) and the Graham principle does not apply to limit s 16(3) in any way, let alone so as to require any consideration of whether it should be severed, or read down. This conclusion means that the characterisation exercise otherwise required by Graham is not required because it is never reached. It also means that the conclusion reached at [74] above remains, namely that the Hansard extracts should not have been admitted into evidence and cannot be relied upon in this appeal

Disposition

109    The first ground of the notice of contention must be upheld to the extent that the Hansard extracts should not have been admitted into evidence before the primary judge. It follows that they cannot be relied upon in this appeal.

Associate:

Dated:    3 July 2026

REASONS FOR JUDGMENT

HORAN J:

110    The notice of contention raises a preliminary issue concerning the admissibility of extracts from Hansard as evidence of the words spoken in Parliament by the Deputy President on two previous occasions (when she was a Member of Parliament), and their use for the purpose of submissions as to whether the Deputy President was disqualified from hearing and determining the applications made by the first respondent for regulated labour hire arrangement orders under Pt 2-7A of the Fair Work Act 2009 (Cth) (FW Act).

111    With some hesitation, I have come to the view that s 16(3)(c) of the Parliamentary Privileges Act 1987 (Cth) precludes the tender or receipt of the Hansard extracts as evidence of the statements made by the Deputy President in the course of proceedings in Parliament, and the making of submissions concerning those statements, for the purpose of contending that a fair-minded lay observer might reasonably apprehend that the Deputy President might not have brought an impartial mind to the resolution of the questions she was required to decide. Accordingly, ground 1(a) of the notice of contention must be upheld.

112    The reason for my hesitation in reaching this conclusion is that the application of the apprehension of bias principle did not require any findings to be made in relation to the personal views that were actually held by the Deputy President, nor the state of mind with which she made her statements. In such circumstances, it may be doubted that the evidence of the Hansard extracts was adduced for the purpose of questioning or relying on the truth, motive, intention or good faith of anything forming part of proceedings in Parliament, or questioning or establishing the credibility, motive, intention or good faith of the Deputy President in making the statements: cf. Privileges Act, s 16(3)(a), (b).

113    Rather, it is arguable that the appellants needed only to prove the fact that the statements were made by the Deputy President, which was not itself a contentious matter (see the first respondent’s reply submissions at [5]). The question whether those statements gave rise to a reasonable apprehension of bias involved the application of an objective legal standard based on the “construct” of a hypothetical fair-minded lay observer who was properly informed as to the relevant circumstances: see Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources (2023) 299 FCR 50 at [210] (Charlesworth J). Unlike in a case of alleged actual bias, such an inquiry was not directed to proving the subjective views actually held by the Deputy President.

114    Ultimately, however, the admissibility and use of the Hansard extracts in this proceeding (and in the recusal application before the Fair Work Commission (FWC)) turns on whether the evidence was tendered or received, and the submissions directed to that evidence were made, in order to draw or invite the drawing of “inferences or conclusions” wholly or partly from the words spoken by the Deputy President in the course of proceedings in Parliament, within the meaning of s 16(3)(c) of the Privileges Act.

115    While the position is not beyond doubt, the broad language of s 16(3)(c) and the current state of authority point to the conclusion that the appellants’ submissions go further than simply relying on the historical fact of the statements having been made by the Deputy President, and seek to draw inferences or conclusions as to whether those statements gave rise to an appearance of bias. Although such an inquiry was to be conducted through the legal construct of the hypothetical fair-minded lay observer, it was nevertheless “largely a factual [question]”: see Isbester v Knox City Council (2015) 255 CLR 135 at [20] (Kiefel, Bell, Keane and Nettle JJ).

116    In the present case, the appellants commenced proceedings seeking judicial review of the non-recusal decisions made by the Deputy President: TESA Group Pty Ltd v Mining and Energy Union [2025] FCA 922 (PJ) at [1]. An appeal to the Full Bench of the FWC from those decisions was not pursued, apparently due to a perceived conflict in the authorities on parliamentary privilege which required resolution by this Court: see paragraph 12 of the outline of submissions dated 20 June 2025 filed by the appellants in the proceedings below.

117    After the judicial review proceedings had been commenced, the Deputy President proceeded to determine the substantive applications for regulated labour hire arrangement orders under s 306E of the FW Act: PJ [1]. The Court has not been informed whether the appellants sought permission to appeal those determinations to a Full Bench of the FWC: see FW Act, ss 604, 607 and 613. While any such appeal would be by way of rehearing, it would still be necessary to establish error in the decisions made by the Deputy President: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2001) 203 CLR 194 at [13]–[14], [21] (Gleeson CJ, Gaudron and Hayne JJ); ALDI Foods Pty Ltd v Shop, Distributive and Allied Employees Association (2017) 262 CLR 593 at [100]–[101] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ); Australian Commercial Catering Pty Ltd v Fair Work Commission Ltd (2015) 235 FCR 441 at [15] (Tracey, Barker and Katzmann JJ).

118    On the recusal application, the Deputy President relied on s 16 of the Privileges Act to exclude the evidence about what had been said in the Parliament, including the Hansard extracts: Re Mining and Energy Union [2025] FWC 779 at [40]–[48]. In the proceedings before the primary judge, the first respondent maintained its objection to the admissibility of that evidence. Nevertheless, the primary judge received the Hansard extracts into evidence, and proceeded to consider whether the claim of apprehended bias was made out “whether the Hansard references are taken into account or not”: PJ [12]. It was only after having rejected that claim that the primary judge addressed the question whether the appellants would be precluded by s 16(3)(c) of the Privileges Act from relying on the Hansard extracts, if it were necessary to decide that issue: PJ [53]–[59].

119    Contrary to the approach that was adopted by the primary judge, the admissibility of the Hansard extracts should have been addressed as an anterior question, and the evidence should have been “looked at” initially only for the purpose of ascertaining whether its reception would or would not be prohibited by s 16(3) of the Privileges Act or would otherwise amount to a breach of parliamentary privilege: Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 232 (Beaumont J).

120    The Privileges Act relevantly declares the powers, privileges and immunities of the Senate and of the House of Representatives, and of their members and committees: see Constitution, s 49. The powers, privileges and immunities of each House as in force immediately before the commencement of the Privileges Act were continued in force by s 5. The principal purpose of s 16 of the Privileges Act was to “avoid the consequences” of the judgment of Hunt J in R v Murphy (1986) 5 NSWLR 18, together with an earlier ruling given by Cantor J in the previous trial, and to “restore” the broader interpretation of article 9 of the Bill of Rights 1688 (1 Wm & M sess 2, c 2) as it applies in relation to the Commonwealth Parliament: see the Explanatory Memorandum, Parliamentary Privileges Bill 1987 (Cth), 1, 9–11.

121    The specific mischief addressed by s 16(3) of the Privileges Act was to prevent witnesses in court proceedings from being cross-examined in relation to their evidence and statements in proceedings in Parliament, by way of a challenge to the witness’s credit either on the basis of a prior inconsistent statement or by questioning the truthfulness of the evidence given or statements made in Parliament: Explanatory Memorandum, 9–11; cf. Murphy at 38 (Hunt J). Nevertheless, the effect of s 16 is not confined to that specific mischief, nor is it necessarily limited by reference to the scope of article 9 of the Bill of Rights.

122    Section 16(3) of the Privileges Act is concerned with proceedings in any court or tribunal, with the latter being defined in s 3 to mean persons or bodies having power to examine witnesses on oath. The subsection limits the purposes for which evidence may be tendered or received concerning proceedings in Parliament, and for which questions may be asked, or “statements, submissions or comments” may be made, concerning such proceedings. The proscribed purposes include questioning or relying on the truth, motive, intention or good faith of anything forming part of the proceedings in Parliament: s 16(3)(a). It is also unlawful for proceedings in Parliament to be used to question or establish the credibility, motive, intention or good faith of any person: s 16(3)(b). Finally, s 16(3)(c) forbids “drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament”.

123    The derivation of the terminology “inferences or conclusions” in s 16(3)(c) is not entirely clear. The draftsperson appears to have drawn from the language used by Hunt J in Murphy at 39, where his Honour had relevantly ruled in advance of the trial that:

(4)     Statements made by witnesses to the Senate Select Committees may also without breach of parliamentary privilege be the subject of comment, used to draw inferences or conclusions, analysed and made the basis of cross-examination or submission, and comparisons may be made between those statements to such a committee and statements made by those witnesses outside of parliament.

(Emphasis added.)

124    The provenance of the language used in that ruling can be further traced to written submissions made in Murphy by the President of the Senate as amicus curiae (a copy of which was provided to the Court by the first respondent), which closely mirror the terms of Hunt J’s ruling, albeit to the opposite effect. In those written submissions, the President referred to submissions of the British Attorney-General in Church of Scientology of California v Johnson-Smith [1972] 1 QB 522, “to the effect that what has been said in the course of parliamentary proceedings may not be commented upon, used to draw inferences or conclusions, analysed or made the basis of cross-examination or submission, and that a jury should not be invited to judge between what was said inside Parliament and out of it”. The report of argument in Church of Scientology records the relevant submission by the Attorney-General, in the context of whether passages from Hansard could be relied on to prove that the defendant to a libel action had acted with malice, that “[t]he passages that had already been read from Hansard were agreed but no evidence should be directed to them, no inferences should be drawn from them on any matter as to malice and no analysis of them in cross-examination should be allowed”: Church of Scientology at 526.

125    The concept of drawing “inferences and conclusions” from evidence is commonly used in the context of appellate review of findings of fact by a trial judge: see, e.g., Fox v Percy (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ); Lee v Lee (2019) 266 CLR 129 at [56] (Bell, Gageler, Nettle and Edelman JJ). For present purposes, it is unnecessary to decide whether s 16(3)(c) should be construed as limited to inferences or conclusions of a factual nature.

126    The Explanatory Memorandum proceeded to set out a “further exposition” of paragraphs 16(3)(a) to (c). The subject of s 16(3)(a) was described as “calling into question parliamentary proceedings”, which was said to be “the most obvious and clear prohibition contained in article 9 [of the Bill of Rights]”, concerned with preventing any direct attack on a statement in debate by a member of Parliament or the evidence of a parliamentary witness, or on the motives of the member or witness. It may be noted that this example does not exhaust the operation of s 16(3)(a), which also applies to any reliance in court proceedings on the truth, motive, intention or good faith of statements or evidence in proceedings in Parliament.

127    The subject to which s 16(3)(b) is directed was described in the Explanatory Memorandum as “attacking the credibility, motives, etc. of a person on the basis of proceedings in Parliament”. This was said to prevent “a member’s speech in debate or a parliamentary witness’s evidence being used to establish their motives or intention for the purpose of supporting a criminal or civil action against them, or against another person”, including to establish that statements made outside Parliament were motivated by malice: cf. Church of Scientology at 531 (Browne J).

128    In relation to s 16(3)(c), the Explanatory Memorandum stated:

(c)     drawing inferences or conclusions to support a criminal or civil action

This would prevent, for example, a jury being invited to infer matters from speeches in debate by members of Parliament or from evidence of parliamentary witnesses in the course of a criminal or civil action against them or another person. Thus a member’s speech in Parliament cannot be used to support an inference that the member’s conduct outside Parliament was part of some illegal activity. This would not prevent the proving of a material fact by reference to a record of proceedings in Parliament which establishes that fact, e.g., the tendering of the Journals of the Senate to prove that a Senator was present in the Senate on a particular day.

129    Of course, the Explanatory Memorandum cannot limit the ordinary meaning of the text of s 16(3)(c) of the Privileges Act. Nevertheless, it appears that the provision was not intended to displace the accepted position under which evidence can be led in court proceedings to establish what was said in Parliament as a historical fact, where that fact is relevant to a material issue in the proceedings, and not for the purpose of impeaching or questioning the freedom of speech and debates in Parliament within article 9 of the Bill of Rights: see Mundey v Askin [1982] 2 NSWLR 369 at 373 (Moffitt P, Reynolds and Samuels JJA); Leyonhjelm v Hanson-Young (2021) 282 FCR 341 at [29]–[30], [35], [44], [47], [52], [55] (Rares J), [248] (Wigney J), [364]–[365], [371] (Abraham J); Prebble v Television New Zealand [1995] 1 AC 321 at 337; see also, e.g., Uren v John Fairfax & Sons Ltd [1979] 2 NSWLR 287 at 289 (Begg J); Erglis v Buckley [2004] 2 Qd R 599 at [8], [11]–[12], [19] (McPherson JA), [99] (Fryberg J), cf. at [24]–[25] (Jerrard JA). The basis on which that recognised exception to parliamentary privilege is to be reconciled with the text of s 16(3)(c) is not self-evident, but there is an implicit premise that a finding as to the “bare” fact of what was said or done in Parliament does not involve drawing an inference or conclusion from anything forming part of the proceedings in Parliament: cf., e.g., Leyonhjelm at [43]–[44] (Rares J).

130    There remain questions as to the circumstances in which evidence can permissibly be led of what was said or done in Parliament in order to prove the fact of that occurrence, but without using that evidence for a purpose proscribed by s 16(3) of the Privileges Act or article 9 of the Bill of Rights. In so far as “the difficulty of defining with precision the ambit of art 9” in this regard was acknowledged by Carruthers J in R v Jackson (1987) 8 NSWLR 116 at 120, such difficulties have not been completely removed by s 16(3) of the Privileges Act. At the very least, evidence can be admitted of facts or events that occurred in the course of parliamentary proceedings “such as that a particular member spoke (without disclosing what he said) or was present and acted in a particular capacity (for example as Speaker, or as a peer)”, or “that documents were tabled (without disclosing who tabled them)”: Sankey v Whitlam (1978) 142 CLR 1 at 37 (Gibbs ACJ). But it might also be permissible to adduce evidence of the fact of what was said in the course of debate in Parliament or before a parliamentary committee, where that fact itself is relevant to a material issue in court or tribunal proceedings, and does not require or involve any finding as to the truth, motive, intention or good faith of what was said, nor the credibility, motive, intention or good faith of any person, nor the drawing of any inference or conclusion from what was said.

131    This can perhaps be illustrated by the decision in Rann v Olsen (2000) 76 SASR 450, in so far as s 16(3) of the Privileges Act and article 9 of the Bill of Rights did not preclude Mr Olsen from pleading what was said by Mr Rann in giving evidence to a Committee of the Commonwealth Parliament for the purposes of establishing a defence of qualified privilege to defamation proceedings brought against him by Mr Rann. Mr Olsen was sued after he made statements that Mr Rann lied in his evidence to the Committee by alleging that Mr Olsen had leaked confidential information. Chief Justice Doyle (with whom Mullighan J agreed) took the view that s 16(3) of the Privileges Act did not prevent Mr Olsen from supporting his plea of qualified privilege, which would require him to prove what Mr Rann had said in order to establish the factual foundation for his response, but without requiring the Court to make any finding about the truth of Mr Rann’s statements nor about Mr Rann’s credibility or motives: Rann at [20], [22], [31], [60]–[81], [207]–[208] (Doyle CJ); see also at [406]–[409], [434]–[435] (Lander J). Although Mr Olsen could not rely on a defence of justification or truth, which would have required him to prove that Mr Rann lied in his evidence to the Committee, a defence of qualified privilege “[did] not require [Mr Olsen] to attack the truth of what Mr Rann said about him”, but only to prove what Mr Rann said and the circumstances in which he said it “simply as matters of fact”: Rann at [55]–[57], [61]–[62] (Doyle CJ). The purpose was to secure a finding about Mr Olsen’s state of mind when making his statements about Mr Rann, and not for the purpose of “questioning the truth of what Mr Rann said, or questioning his credibility or motive, or for the purpose of drawing inferences or conclusions from what Mr Rann said”: Rann at [64]–[66], [81].

132    More obviously, it would be permissible to adduce evidence of proceedings in Parliament in order to establish that a publication was a fair and accurate report of those proceedings: see s 10(1) of the Privileges Act; Laurance v Katter [2000] 1 Qd R 147 at 157–158 (Fitzgerald P); cf., in relation to the defence of fair comment, Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 319.

133    In Director of Public Prosecutions (NSW) v President of the Legislative Council [2026] NSWCA 20 (DPP (NSW)), the Court of Appeal of New South Wales (Leeming and Stern JJA, Griffiths AJA) relied on the reasoning in Rann in expressing the view that parliamentary privilege would not prevent a party from relying on evidence of what was said in Parliament in support of an application for the recusal of a judge on the ground of apprehended bias. The recusal application in DPP (NSW) arose from the contents of a submission made to a Committee of the Legislative Council of New South Wales by the judge who was hearing a criminal trial. Their Honours acknowledged (at [102]) the force of submissions made by the Attorney-General of New South Wales that “it may be difficult to remove completely all implicit criticism from a document tendered in support of an application for apprehended bias” and that an application of the apprehension of bias principle would involve the court “going beyond the historical fact of what was said in Parliament”. Nevertheless, the Court stated (at [104]–[105]):

Turning to the application for recusal based on apprehended bias, there is, as the Director said, some similarity with the distinction drawn by Doyle CJ in Rann v Olsen. It is to be borne in mind that the purpose of the tender is to establish that the submission has been made, as the evidential foundation for the conclusion that a fair-minded observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the litigation. As has often been noted, that test is objective, and does not involve forming any view on how the judge will actually proceed. It is well-settled that the judge’s actual state of mind is irrelevant (see for example Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [61]), and there should be no occasion to make any submissions, let alone to draw any conclusions, about the judicial officer’s state of mind. Indeed, it is very common for counsel advancing such a submission to say expressly that it is not for a moment suggested that the judicial officer would in fact bring anything other than an impartial and independent mind to the case. Advocates tend to adopt that stance so as to depersonalise the application, but the fact that they can do so reflects the fact that neither the making of the application nor its determination involves any inquiry into the judge’s mental state.

Further, it must be borne in mind that the question is doubly hypothetical. It is necessary to establish only that a fair-minded observer might think that the judge might not bring an impartial mind to the litigation (noting that the hypothetical fair minded observer is no more than an analytical construct: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 at [45], [85], [175] and [249]-[255]). We incline to the view that that can be done, at least in many cases, without questioning or impeaching what was in fact said in Parliament which attracted privilege. On this basis, Article 9 would not apply as a matter of construction, without reaching constitutional considerations. However, in part because this litigation has occurred before the recusal application has been made, and in part because of the judicial economy urged upon this Court by the parties, we do not reach a concluded view on this issue.

134    This reasoning bears similarities to the approach that was adopted by the primary judge in the present case: PJ [53]–[59]. Nevertheless, the observations made by the Court of Appeal in DPP (NSW) were not final, in circumstances where the recusal application was still pending before the primary judge: see DPP (NSW) at [8]–[10], [48]. Further, the circumstances of that case were concerned with article 9 of the Bill of Rights rather than s 16(3) of the Privileges Act.

135    In Barngarla (at [210]), Charlesworth J opined that an application of the test for apprehended bias to uncontentious facts about what was stated in Parliament involved fixing “a legal consequence to facts without calling those facts into question in the ordinary sense”, noting that “[t]he fictional observer is not a person who in fact draws inferences and in fact draws conclusions”. However, her Honour followed and applied the decision in McCloy v Latham [2015] NSWSC 1782, in which McDougall J had “reasoned to a conclusion that the test for apprehended bias was one that necessarily required inferences or conclusions to be drawn from the words that the Commissioner said to the parliamentary committee”: Barngarla at [215]; see McCloy at [23]–[29]. While expressing reservations about some aspects of the reasoning in McCloy, Charlesworth J concluded that the construction of s 16(3)(c) of the Privileges Act adopted by McDougall J should be applied on the basis that it could not be said to be plainly wrong. Her Honour stated (at [217]–[218]):

It is implicit in the reasoning and outcome in McCloy that the phrase “drawing … conclusions, wholly or partly from anything forming part of those proceedings in Parliament” extends to conclusions in the nature of answers yielded by the application of that legal standard to the otherwise uncontroversial fact that words were said in Parliament.

As I have said, in the present case the fact that things were said and done in Parliament is not of itself contentious. The respondents submitted that those primary facts are not relevant to the resolution of the application for judicial review, unless the Court embarks on a process of reasoning involving conclusions of the kind prohibited by s 16(3). The respondents’ construction gives the word “conclusion” broad scope. Indeed, it is difficult to conceive of a reason why evidence of otherwise uncontroversial facts about what was said in Parliament might be adduced in evidence on an application such as the present (or for that matter in any other court proceeding) for any purpose other than inviting the Court to ultimately draw a conclusion of one sort or another by reference to it. Such a “conclusion” may be by way of a finding of fact or an ultimate conclusion based on the application of the law to it. Either way, there is a “conclusion” drawn “wholly or partly from anything forming part of those proceedings in Parliament”.

136    It is uncontroversial that the apprehension of bias principle involves the following steps: an identification of what is said might lead the decision-maker to decide the case other than on its merits; an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits; and an assessment of the reasonableness of the asserted apprehension of bias: Ebner v Official Trustee (2000) 205 CLR 337 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Sunshineloans Pty Ltd v Australian Securities and Investments Commission (2026) 100 ALJR 489 at [1] (Gageler CJ and Gleeson J), [60] (Gordon J), [105] (Edelman J), [130] (Jagot J), [173] (Beech-Jones J). The ultimate issue is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the questions to be decided. It is directed to the appearance of impartiality.

137    There is some attraction in the argument that the Hansard extracts on which the appellants rely in the present case were tendered or received only for the purpose of establishing the fact of what the Deputy President said in the course of proceedings in Parliament. The argument that those statements gave rise to a reasonable apprehension of bias was not concerned with the truth, credibility, motive, intention or good faith of those statements, nor the personal views actually held by the Deputy President. Although the appellants engaged in a close examination of the words spoken by the Deputy President and their context, their submissions were directed to the objective possibility that a hypothetical fair-minded lay observer might regard those statements as reflecting certain preconceived views held by the Deputy President. This did not require any findings to be made, or any inferences to be drawn, about the state of mind of the Deputy President. Nor did it involve any attempt to assess the credibility of the evidence or to compare it with other evidence about the Deputy President’s personal views: cf. Amann Aviation at 230–231 (Beaumont J). While these may be fine distinctions, particularly in circumstances where challenges based on apprehended bias are far more common than allegations of actual bias, they may nevertheless be critical for the purposes of parliamentary privilege: cf. Rann at [68] (Doyle CJ).

138    The Attorney-General of the Commonwealth, intervening, submitted that the application of the apprehension of bias principle requires the court to draw inferences or conclusions about the view that might be taken by a hypothetical fair-minded lay observer, being “the court’s view of the public’s view”: see CNY21 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [21] (Kiefel CJ and Gageler J), quoting Webb v The Queen (1994) 181 CLR 41 at 52; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 at [45] (Kiefel CJ and Gageler J). It may be debatable whether this is the kind of “inference” or “conclusion” to which s 16(3)(c) of the Privileges Act is directed. But it does result in a finding, the correctness of which may be reviewed on an appeal: see Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218 at [41]–[43] (Bromberg, Murphy and Markovic JJ).

139    It can be accepted that parliamentary privilege might apply to the use of statements in Parliament for the purpose of supporting a ground for relief in judicial review proceedings in respect of something which occurred outside the Parliament: see R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc [1983] 2 All ER 233 at 239 (Dunn LJ), discussed in Amann Aviation at 226–227 (Beaumont J). However, whether such a use of the statements is permissible might depend on the particular ground of review and the nature of the issues raised. For example, where statements in Parliament are relied on to support a ground of apprehended bias (as opposed to actual bias), it might be doubted whether the court would be required to consider the statements “with a view to determining what was the true meaning of them, and what were the proper inferences to be drawn from them”, or would be called upon “to examine, discuss and adjudge on a matter which was being considered in Parliament”: cf. Strathclyde at 239 (Dunn LJ). Rather, the court would apply the apprehension of bias principle to the fact that the statements were made, by reference to the external perspective of a hypothetical fair-minded lay observer.

140    I am not convinced that the admission and use of the Hansard extracts for such purposes would necessarily impeach or question freedom of speech, debates or proceedings in Parliament within the meaning of article 9 of the Bill of Rights: see generally Prebble at 332, 334, 336. For the reasons set out above, judicial consideration of the question whether the Deputy President’s statements give rise to a reasonable apprehension of bias does not involve any challenge to what was said or done “within the walls of Parliament”, nor does it fail to recognize the “respective constitutional roles” of the Parliament and the courts: cf. Prebble at 332; see also DPP (NSW) at [96]–[99]. The possible consequence of recusal or disqualification for apprehended bias in future administrative or judicial proceedings is, in my view, unlikely to have a chilling effect on speech in Parliament or to inhibit a member or witness at the time when he or she speaks: cf. Prebble at 334; see also Attorney-General (Tas) v Casimaty (2024) 283 CLR 1 at [80]–[81] (Edelman J).

141    However, the present case is governed by the terms of s 16(3) of the Privileges Act, construed by reference to the statutory text, context and purpose. Section 16(3) is not to be narrowly construed, and its scope is not necessarily limited to or controlled by the operation of article 9 of the Bill of Rights: see, e.g., Rann at [53], [92] (Doyle CJ), cf. at [390]–[391] (Lander J). There is no doubt that the Hansard extracts constitute evidence concerning proceedings in Parliament. The question is whether the purpose for which the Hansard extracts are tendered or received, or the purpose for which statements, submissions or comments are made based on those extracts, involves “drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament”.

142    Existing authority in this Court indicates that this question must be answered in the affirmative. That is, the appellants need to go further than simply proving the historical fact of the relevant statements having been made in Parliament, by inviting conclusions to be drawn from those statements as to whether a fair-minded lay observer might reasonably apprehend that the Deputy President might not bring an impartial mind to the determination of the first respondent’s applications for regulated labour hire arrangement orders.

143    In British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing (2011) 195 FCR 123, the appellant argued that there had been a waiver of legal professional privilege in a memorandum of advice provided by the Attorney-General’s Department to the Tobacco Policy Section of the Department of Human Services and Health concerning legal and constitutional issues in relation to the generic (or “plain”) packaging of cigarettes, and that the memorandum of advice was therefore not exempt from production under s 42 of the Freedom of Information Act 1982 (Cth). In support of that argument, the appellant contended that the substance of the legal advice had been disclosed, among other things, in a Government Response paper that was tabled in the Senate. An issue arose as to whether s 16(3) of the Privileges Act prevented the Administrative Appeals Tribunal or the Court from having regard to the tabling of the Government Response in determining whether there had been an implied waiver of privilege in accordance with the principles in Mann v Carnell (1999) 201 CLR 1 at [28]–[29] (i.e. whether the conduct was inconsistent with the maintenance of the confidentiality which the privilege is intended to protect). The appellant argued that the Government Response was referred to “only to prove the fact that the words were used in the document which was tabled and not to invite any inference adverse to any person”, nor to raise any question as to the truth of or motives behind the Government Response. The Court (Keane CJ, Downes and Besanko JJ) relevantly held that reliance on the tabling of the Government Response for this purpose was precluded by s 16(3) of the Privileges Act, stating (at [48]–[49]):

If one looks at this issue in the round, rather than as one question in a sequence of separate questions, one can see that the appellant is confronted by a dilemma. To avoid the threat presented by s 16(3) of the PP Act, the appellant is driven to say that it seeks to refer to the tabling of the Government Response in the Senate only to show that the words were published. However, if one does not go further and invite the inference that the reference reveals an inconsistency in the position of the respondent in now seeking to maintain legal professional privilege, then there can be no basis for the conclusion that the privilege has been waived. If the appellant seeks to show the inconsistency necessary to make good its waiver argument, it must be gored by s 16(3) of the PP Act.

In our opinion, it is not possible to avoid the conclusion that the appellant does indeed seek to make use of the tabling of the Government Response to permit the drawing of an inference adverse to the government. Since inconsistency in maintaining the privilege is the point on which waiver turns, for the appellant to succeed it must persuade the Court that the conduct of the respondent in insisting upon the privilege is inconsistent with the publication of the Government Response by tabling it in the Senate. That is precisely the kind of reflection which may not be made upon the conduct of those whose published statements are within the protection of s 16(3) of the PP Act.

144    The High Court refused an application for special leave to appeal from the Full Court’s decision: British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2012] HCATrans 193 (Gummow, Hayne and Crennan JJ).

145    While the question of apprehended bias that arises in the present case is different from the issue of implied waiver considered in British American Tobacco, some comparison may be drawn in so far as each involves an objective analysis based on the fact that statements were made or documents were tabled in Parliament. If the decision in British American Tobacco is to be followed, I consider that it supports a conclusion that the application of the apprehension of bias principle to the statements made in Parliament by the Deputy President would involve “precisely the kind of reflection which may not be made” upon the words and conduct of those whose statements are protected by s 16(3) of the Privileges Act.

146    Such a conclusion is also consistent with several first instance decisions. In addition to Barngarla, considered above, Jackson J recently held that parliamentary privilege prevented an applicant for judicial review from challenging an administrative decision on the ground that the decision-maker’s reliance on a Second Reading Speech by a State Minister in the Parliament of New South Wales, in support of findings about public interest considerations, was legally unreasonable: see Asset Energy Pty Ltd v Commonwealth Minister for Industry and Science (No 2) [2026] FCA 761.

147    It should be noted that the decision in Asset Energy was concerned with the privileges of the State Parliament in accordance with article 9 of the Bill of Rights, rather than addressing s 16(3) of the Privileges Act. After an extensive consideration of the authorities on parliamentary privilege (at [84]–[130]), Jackson J concluded that “the case as put by Asset does require the Court to undertake a critical examination of the Second Reading Speech, an undertaking which parliamentary privilege precludes”: Asset Energy at [54]; see also at [150]–[153]. In other words, the applicant was required to go beyond establishing that the speech was in fact made, by raising the question whether the speech was rationally capable of supporting the decision-maker’s findings on the public interest. His Honour considered that, if the applicant’s submissions were to be entertained, the proposed use of the Second Reading Speech “would involve, at least, a critical examination of things said in the speech to assess whether they have probative value so as to support the [decision-maker’s] conclusion”, and that this would encompass “how likely the speech is to be true”: Asset Energy at [151].

148    For completeness, I note that Jackson J distinguished, if not disapproved, the decision in Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 2) [2023] ACTSC 168; (2023) 378 FLR 390, in which it had been held that parliamentary materials could be tendered by the defendants to establish facts or circumstances that were relied on as reasonable grounds for making certain representations about future matters for the purposes of s 4(2) of the Australian Consumer Law: see Asset Energy at [118]–[123].

149    There may come an occasion on which these authorities will need to be reconsidered. However, this is not that occasion. On current authority, I am driven to conclude that s 16(3) of the Privileges Act precludes the tender or receipt of the Hansard extracts for the purpose of drawing an inference or conclusion that a fair-minded lay observer might reasonably apprehend that the Deputy President might not have brought an impartial mind to the determination of the applications before her.

150    Finally, I agree that s 16(3) of the Privileges Act in its application to the present case is not inconsistent with any implication drawn from Chapter III of the Constitution. The power of the Parliament to declare the powers, privileges and immunities of each House is derived from s 49 of the Constitution, and sourced in Chapter I. That power is separate from and not relevantly qualified by Chapter III: see R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157; Re Tracey; ex parte Ryan (1989) 166 CLR 518 at 581 (Deane J); Laurance v Katter at 158–159, 191–192, 195 (Fitzgerald P). Further, s 49 of the Constitution itself provides that the powers, privileges and immunities of the Parliament shall be those of the House of Commons of the Parliament of the United Kingdom, until otherwise declared by the Parliament: see Rann at [133]–[134] (Doyle CJ, with whom Perry, Mullighan and Lander JJ respectively agreed at [257], [283], [390]), [224] (Prior J).

151    Where it applies, parliamentary privilege may limit the evidence that may be received by a court, and the statements, submissions or comments that may be made to a court, concerning proceedings in Parliament. As is the case with other kinds of privilege and exclusionary rules of evidence, this might affect the ability of a party to make out its case, and might have the consequence that the court “will arrive at its decision on less than the whole of the relevant materials”: Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at [32]–[33] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). But that does not itself prevent the court from exercising its jurisdiction, including to determine any questions in relation to the existence and extent of parliamentary privilege, nor does it require the court to exercise judicial power in a manner inconsistent with the essential character of a court or with the nature of judicial power: see, e.g., Rann at [191] (Doyle CJ). The legislature can enact laws that regulate the method or burden of proving facts: Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1 at 12. In determining whether the tender or receipt of any evidence is precluded by parliamentary privilege, neither the court nor the parties are prevented from seeing that evidence. It is unnecessary for present purposes to consider whether different questions might be raised if an allegation of apprehended bias were to be made in relation to a judge of a Chapter III court or a state court invested with federal jurisdiction.

152    Accordingly, for the reasons set out above, I agree with the order proposed by Bromwich and Kennett JJ.

Associate:

Dated:    3 July 2026

SCHEDULE OF PARTIES