On Friday, the Court of Appeal handed down its judgment, in favour of Carne. Two of the three appeal judges ruled in Carne’s favour.
Judges Philip McMurdo and Debra Mullins set aside the original ruling, allowed Carne’s appeal, and ordered the CCC pay Carne’s costs. They concluded the CCC report did not come under section 69(1) of the Crime and Corruption Act 2001.
“It is evident that [the original judge’s] conclusion that this report was subject to parliamentary privilege was dependent upon the report being one which was made by the [CCC] and delivered by it to the PCCC in the performance of the [CCC’s] functions,” they ruled.
“However, those facts could not confer parliamentary privilege upon a document made and delivered to the PCCC in purported, but not actual performance of the Commission’s functions.
“The preparation and delivery of the report, without the operation of section 69, were not acts done in transacting the business of the Assembly or its Committee.”
However, the third appeal judge – Judge Paul Freeburn – decided against Carne, saying he believed ruling in favour of Carne would go against the principle that “parliamentary proceedings are immune from outside examination”.
“There is good reason to be sympathetic to [Carne’s] plight. If the PCCC does decide to direct that the report be given to the Speaker, then unproven and untested allegations against him will enter the public domain,” he said.
“However, the decision that the PCCC makes about that, and its balancing of the legitimate reputational interests of [Carne] as against the public interest as reflected in the CC Act, are a matter for the PCCC.
“It is not this court’s role to either enjoin the [CCC] from submitting the report to the PCCC or to enjoin the PCCC from deciding to direct that the report be given to the Speaker.”