Michael Egan v Max Willis and Anor
195 CLR 424[1998] HCA 71
(Judgment by: McHugh J)
Egan v
Willis
Judges:
Gaudron, Gummow and Hayne
McHugh
Kirby
Callinan J
Starke, J
Judgment date: 19 November 1998
Judgment by:
McHugh J
[57] This important appeal concerns the powers of the Legislative Council of New South Wales, one of the two Houses of the Parliament of that State, and the extent to which, if at all, the courts in that State can make orders or declarations in respect of events occurring within the walls of the Council.
[58] The appeal is brought by the Honourable Michael Egan, a member of the Legislative Council. The appeal arises out of proceedings which he commenced in the Supreme Court of New South Wales as the result of a resolution of the Council, made on 2 May 1996, suspending him "from the service of the House for the remainder of today's sitting" [75] . In the Supreme Court, the appellant sought a declaration that the respondents, the President and the Usher of the Black Rod of the Council respectively, had committed an unlawful trespass to his person by forcibly removing him from the "Chamber to the public footpath on Macquarie Street". He also sought a declaration that two paragraphs of a resolution, passed on 2 May 1996, were invalid. Those paragraphs contained resolutions of the Council which inter alia adjudged the appellant guilty of contempt of the House and suspended him from its service. On 2 July 1996, Dunford J ordered that the proceedings should be removed to the Court of Appeal. His Honour stated certain questions "to be decided" upon the removal. However, the Court of Appeal did not decide or answer the questions. At all events, it did not decide them formally. Instead, it ordered that the "[appellant's] claim for a declaration that the resolutions of the Legislative Council of 2 May 1996 were invalid [be] dismissed". It also declared that the respondents "committed an actionable trespass to the person of the [appellant] by reason of the extent of his removal on 2 May 1996." Pursuant to the grant of special leave, the appellant now appeals against the Order of the Court of Appeal dismissing his claim for a declaration that the resolutions were invalid.
[59] I agree with other members of this Court that the substance of the appellant's claim must fail. But my reasons for doing so are different from theirs. My reasons are also different from those of the judges of the Court of Appeal of New South Wales against whose Order the appeal to this Court is brought. As a result, I think that, for what some may regard as technical reasons, the appeal should be allowed so that the Order and declaration made by the Court of Appeal can be set aside and a different order substituted.
The history of the proceedings
[60] The appellant is the Leader of the Government in the Legislative Council. At times material to this case, he was a Minister of the Crown, holding the offices of Treasurer, Minister for Energy, Minister of State Development and Minister Assisting the Premier. On 1 May 1996, the Council censured the appellant "as the representative of the Government in this House for the Government's failure to comply" with an earlier resolution requiring the tabling in the House of "papers relating to the Government's consideration of the report of the commission of Inquiry into the Lake Cowal goldmine and associated facilities ... and the determination of the consent to the project." [76] The resolution of 1 May also called upon the appellant to table the papers by the following day. He failed to do so. As a result, on 2 May 1996 the Council, after debate, adjudged the appellant "guilty of a contempt of this House" [77] . It also resolved [78] :
"That this House, regarding it as necessary to obtain information on any matter affecting the public interest and in order to protect the rightful powers and privileges of the House, and to remove any obstruction to the proper performance of the important functions it is intended to execute:
- (a)
- hereby suspends the [appellant] from the service of the House for the remainder of today's sitting;
- (b)
- orders the [appellant] to attend in his place at the Table of this House on the next sitting day to explain:
- (i)
- his reasons for continued non-compliance with:
- [certain Orders of the House]
- (ii)
- the Government's failure to comply with the Order of the House dated 26 October 1995 to table certain documents concerning the recentralisation of the Department of Education."
[61] The sole ground of the Notice of Appeal filed in this Court states that the Court of Appeal:
"erred in holding that the Legislative Council had an implied power to order the laying of documents on the table by the appellant, which order was enforceable by the imposition of the sanction of suspension on the appellant."
The ground of appeal, as so framed, suggests that there is only one question in the appeal. But in fact there are three. The first is whether the Council has the power to demand that a Minister of the Crown who is the Leader of the Government in the Council should table papers relating to matters that have been dealt with by the Government. The second question, which arises only if the first is answered in the affirmative, is whether the Council has power to suspend the Minister for failing to table papers in the possession of the Government when the Council has directed that those papers be tabled in the Council. Superimposed on these two questions is the third question. It is whether and, if so, to what extent the Supreme Court of New South Wales can make declarations or investigate matters concerning the business of the Council which takes place within the walls of the Council.
The question for decision
[62] The appellant and the respondents were content to have the appeal in this Court determined, as it had been determined in the Court of Appeal, by answering the question whether the powers purportedly exercised by or on behalf of the Council were reasonably necessary for the proper exercise of the functions which the Council intended to execute. In the Court of Appeal, Priestley JA said that both sides accepted that the application of this test was "the only possible basis for the power which the Legislative Council was and is [asserting]" [79] . In my view, however, that test, although appropriate in other contexts as the determinant of the extent of the powers of the Council, is not appropriate when, as here, the issue concerns the right of the Council to obtain information from a Minister of the Crown concerning the business of government and the Minister is a member of the Council. It is not appropriate because, if answered in the affirmative, it must logically lead to the conclusion that the Council, by its resolution, could also adjudge an ordinary citizen guilty of contempt for failing to produce papers falling within the class in issue here, notwithstanding that no statute or common law rule in New South Wales requires a citizen to produce such papers to the Council. If answered in the negative, it must deprive the Council of a power to obtain documents whose production may be of great importance to the proper exercise of responsible government in New South Wales.
[63] In my opinion, the power to adjudge the appellant guilty of contempt of the Council and to suspend him for failing to produce the papers inheres in the Council by reason of its being part of the Parliament of New South Wales. As an institution, that Parliament may not have all the attributes and powers of the Parliament of the United Kingdom whose enactment brought the Parliament of New South Wales into existence. Nevertheless, the powers and privileges of each of the Houses of the Parliament of New South Wales can only be understood by reference to the powers and privileges of the House of Commons and the great constitutional conflicts between the House of Commons on the one hand and the Crown, the House of Lords and the courts of law on the other which remained unsettled until the nineteenth century. As a result, the privileges and powers of each of the Houses of the New South Wales legislature include the power to obtain information from a Minister who is a member of that House and to suspend that Minister when the House concludes that his or her refusal to produce information is obstructing the business of the House.
[64] Because one of the orders that the appellant sought in his Statement of Claim was a declaration that a resolution of the Council was invalid, it is necessary to begin by examining the relationship between the common law courts and Parliament when those courts are called upon to determine whether acts done in pursuance of a parliamentary resolution are unlawful. That examination must begin with the relationship of the courts and Parliament at Westminster, particularly the relationship of those courts with the House of Commons.
The law of Parliament as customary law
[65] The principal disputes between the courts and the Houses of Parliament at Westminster arose from the claims of the House of Commons "that no Court has jurisdiction to discuss the legality of anything which its vote has ordered." [80] The common law courts have rejected that claim [81] , and, as Sir William Anson pointed out in 1909 [82] , "[i]t is safe to say that the Courts have won the day." By 1840, the law was finally settled that, in the absence of a statutory direction, it was a matter for judicial decision as to what were the powers, privileges and immunities of the
House of Commons [83] . Whenever a claim of privilege arose in determining the rights and liabilities of subjects, the courts took the view that they had no option but to determine the correctness of the claim of privilege in so far as it was claimed to affect those rights or liabilities [84] . In Stockdale v Hansard [85] , Patteson J said:
"[E]very Court in which an action is brought upon a subject-matter generally and prima facie within its jurisdiction, and in which, by the course of the proceedings in that action, the powers and privileges and jurisdiction of another Court come into question, must of necessity determine as to the extent of those powers, privileges and jurisdiction: that the decisions of that Court, whose powers, privileges, and jurisdiction are so brought into question, as to their extent, are authorities, and, if I may say so, evidences in law upon the subject, but not conclusive. In the present case, therefore, both upon principle and authority, I conceive that this Court is not precluded by the resolution of the House of Commons of May 1837 from inquiring into the legality of the act complained of, although we are bound to treat that resolution with all possible respect".
[66] Although the common law courts triumphed in their claim that they had jurisdiction to declare what were the powers, privileges and immunities of the Commons, they nevertheless conceded [86] :
"that the members of each House of Parliament are the sole judges whether their privileges have been violated, and whether thereby any person has been guilty of a contempt of their authority; and so they must necessarily adjudicate on the extent of their privileges."
Moreover, Burdett v Abbot [87] and the Case of the Sheriff of Middlesex [88] established that the courts would not go behind a warrant of commitment for contempt of the Commons. The principle established by those cases was applied to commitments for contempt by the colonial legislature of Victoria in Dill v Murphy [89] and The Speaker of the Legislative Assembly of Victoria v Glass [90] , the legislature of Victoria having been given a statutory power to punish for contempt. The circumstances in which the courts will examine a claim of privilege, the breach of which has resulted in a commitment for contempt, were summarised by this Court in R v Richards; Ex parte Fitzpatrick and Browne [91] :
"[I]t 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. The judgment of the House is expressed by its resolution and by the warrant of the Speaker. If the warrant specifies the ground of the commitment the court may, it would seem, determine whether it is sufficient in law as a ground to amount to a breach of privilege, but if the warrant is upon its face consistent with a breach of an acknowledged privilege it is conclusive and it is no objection that the breach of privilege is stated in general terms."
[67] Furthermore, the common law courts will not examine the administration of the law - including statute law - within the walls of Parliament when the matters involved relate only to the internal procedure of a House of Parliament. What is said or done within the walls of a parliamentary chamber cannot be examined in a court of law [92] . That was accepted by all the judges in Stockdale [93] . Mr Justice Coleridge said [94] "that the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules, or derogation from its dignity, stands upon the clearest grounds of necessity."
[68] In Bradlaugh v Gossett [95] , the Queen's Bench Division refused to examine the propriety of a resolution that restrained a member of the House of Commons from doing within the walls of the Commons what a statute entitled him to do, namely take the oath prescribed by the Parliamentary Oaths Act 1866 (UK). Lord Coleridge CJ said [96] :
"What is said or done within the walls of Parliament cannot be inquired into in a court of law. ... The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive."
Stephen J said [97] :
"Some of these rights are to be exercised out of parliament, others within the walls of the House of Commons. Those which are to be exercised out of Parliament are under the protection of this Court, which, as has been shewn in many cases, will apply proper remedies if they are in any way invaded, and will in so doing be bound, not by resolutions of either House of Parliament, but by its own judgment as to the law of the land, of which the privileges of Parliament form a part. Others must be exercised, if at all, within the walls of the House of Commons; and it seems to me that, from the nature of the case, such rights must be dependent upon the resolutions of the House. In my opinion the House stands with relation to such rights and to the resolutions which affect their exercise, in precisely the same relation as we the judges of this Court stand in to the laws which regulate the rights of which we are the guardians, and to the judgments which apply them to particular cases; that is to say, they are bound by the most solemn obligations which can bind men to any course of conduct whatever, to guide their conduct by the law as they understand it."
Stephen J went on to say [98] :
"We ought not to try to make new laws, under the pretence of declaring the existing law. But I must add that this is not a case in which I at least feel tempted to do so. It seems to me that, if we were to attempt to erect ourselves into a Court of Appeal from the House of Commons, we should consult neither the public interest, nor the interests of parliament and the constitution, nor our own dignity. We should provoke a conflict between the House of Commons and this Court, which in itself would be a great evil; and, even upon the most improbable supposition of their acquiescence in our adverse decision, an appeal would lie from that decision to the Court of Appeal, and thence to the House of Lords, which would thus become the judge in the last resort of the powers and privileges of the House of Commons."
[69] In neither Stockdale nor Bradlaugh did the judges suggest that it was Art 9 of the Bill of Rights that precluded them from exercising jurisdiction. Rather, their reasoning indicates that by parliamentary law - which as customary law is part of the common law - matters affecting the internal administration of the House of Commons are outside the jurisdiction of the common law courts. The Bill of Rights which is in force in New South Wales [99] merely confirms the common law [100] .
[70] If the law laid down in Bradlaugh [101] correctly states the relationship between the Supreme Court of New South Wales and the Houses of the Parliament of that State, as I think it does, it would seem to follow that the claim of the appellant for a declaration concerning the invalidity of the resolution of 2 May was misconceived. It is one thing for that Court, as an incident in determining whether the respondents have committed a trespass against the appellant, to determine whether the resolution was valid. It is another matter altogether to make a formal declaration which is binding on the parties for all purposes including their conduct in the House divorced from the exercise of any rights cognisable in a court of law. However, a series of decisions in the Privy Council, which have been followed in this Court, have held that in the absence of a statutory authority the privileges, powers and immunities of colonial legislatures are less than those possessed by the House of Commons. Relying on those decisions, the appellant argues that the Court of Appeal erred in dismissing his claim that the resolution of 2 May was beyond the power of the Council. The effect of those decisions is therefore central to the outcome of this appeal.
The implied powers of the Council
[71] In his great work on Responsible Government In The Dominions [102] , Professor Berriedale Keith contended:
"The legal position of Colonial Legislatures as regards privilege has long been made clear by judgements of the Privy Council. These assert in effect that the privileges of Parliament [103] are essentially peculiar to itself, being the product of long usage, that they are not carried over to any Legislature by its mere performance of similar functions in legislative matters - the Parliament having had more complex origin than mere legislation - and that a Legislature has merely, perhaps in a marked form, the right of any Assembly to secure order in its own proceedings."
[72] One of the judgments to which Professor Keith referred was Kielley v Carson [104] where the Privy Council held that the Legislative Assembly of Newfoundland did not have the power to arrest with a view to adjudicating on a contempt committed out of the House. In Kielley [105] , Mr Baron Parke delivering the Advice of the Privy Council said:
"The whole question then is reduced to this, - whether by law, the power of committing for a contempt, not in the presence of the Assembly, is incident to every local Legislature.
The Statute Law on this subject being silent, the Common Law is to govern it; and what is the Common Law, depends upon principle and precedent.
Their Lordships see no reason to think, that in the principle of the Common Law, any other powers are given them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment ... This is the principle which governs all legal incidents. 'Quando Lex aliquid concedit, concedere viditur et illud, sine quo res ipsa esse non potest.' [106] In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the principle of the Common Law. But the power of punishing any one for past misconduct as a contempt of its authority, and adjudicating upon the fact of such contempt, and the measure of punishment as a judicial body, irresponsible to the party accused, whatever the real facts may be, is of a very different character, and by no means essentially necessary for the exercise of its functions by a local Legislature, whether representative or not. All these functions may be well performed without this extraordinary power".
[73] The Privy Council applied these principles in Barton v Taylor [107] where the respondent, a member of the Legislative Assembly of New South Wales, brought an action in trespass against the Speaker of the Assembly for directing that the respondent be removed from the Chamber. The Speaker pleaded that, within a week of the Assembly having passed a resolution that the respondent "be suspended from the service of the House", the respondent had entered the Chamber and claimed the right to sit and serve as a member "whereupon the appellant, as Speaker, requested him to withdraw, and upon his refusal directed the Serjeant-at-Arms to remove him from the chamber" [108] . The Judicial Committee held that the plea was bad. The Earl of Selborne said [109] :
"[The] intention of [the] plea seems to have been to justify the trespass on the ground of an inherent power in every Colonial Legislative Assembly to protect itself against obstruction, interruption, or disturbance of it proceedings by the misconduct of any of its members in the course of those proceedings."
After referring to two earlier decisions of the Privy Council [110] , his Lordship said [111] :
"It results from those authorities that no powers of that kind are incident to or inherent in a Colonial Legislative Assembly (without express grant), except 'such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute' [112] . Whatever, in a reasonable sense, is necessary for these purposes, is impliedly granted whenever any such legislative body is established by competent authority. For these purposes, protective and self-defensive powers only, and not punitive , are necessary." (emphasis added)
[74] The Earl of Selborne went on to say that the "principle on which the implied power is given confines it within the limits of what is required by the assumed necessity." [113] Although the Assembly had no power to punish, his Lordship said that the Privy Council was of the view that the principle of reasonable necessity gave the Assembly a power of suspension. He said [114] :
"The power, therefore, of suspending a member guilty of obstruction or disorderly conduct during the continuance of any current sitting, is, in their Lordships' judgment, reasonably necessary for the proper exercise of the functions of any Legislative Assembly of this kind; and it may very well be, that the same doctrine of reasonable necessity would authorize a suspension until submission or apology by the offending member; which, if he were refractory, might cause it to be prolonged (not by the arbitrary discretion of the Assembly, but by his own wilful default) for some further time."
[75] In an earlier case - Fenton v Hampton [115] - the Privy Council had also applied the principles laid down in Kielley [116] . It upheld the judgment of the Supreme Court of Van Diemen's Land that the Legislative Council of that Colony did not have the power to arrest a government servant for a contempt in circumstances where the servant had refused to obey a summons to attend and give evidence before a Select Committee of the Council.
[76] The principles laid down in Barton and in Kielley were applied in Willis and Christie v Perry [117] where this Court held that the Speaker of the Legislative Assembly of New South Wales had no authority to direct that a member, who had been guilty of disorder but had left the Chamber, should be arrested and brought back into the Chamber. Griffith CJ said [118] :
"In my opinion the Speaker had no more authority over the plaintiff when he was outside the chamber than he had over a person who was not a member. The Speaker undoubtedly has power when any person who is outside the chamber is conducting himself in such a manner as to interfere with the orderly conduct of proceedings in the chamber to have that person removed, and for that purpose to obtain the aid of the police. But that is quite a different thing from arresting a person and bringing him into the chamber. The only object of such action is to punish him, or, as Ferguson J said, 'that the example made might be effective as a deterrent'."
[77] However, all these cases are far removed from the issue whether the Council has power to suspend a Minister of the Crown who has refused to provide information concerning the business of government. Kielley [119] and the cases which follow it deal with the power of a colonial legislature to punish for contempt or to require non-members to attend before it. They have nothing authoritative to say on whether, for the purpose of its business, a House in a State or colonial legislature may require a Minister who is a member of that House to provide information, whether orally or in writing. Nor have they anything authoritative to say on whether the Council may lawfully take the view that the failure to produce the information obstructs the business of the House and requires the suspension of the Minister. In one respect, they support the respondents' case: Barton [120] and Willis and Christie [121] accept that the Council has a power of suspension which may be exercised, inter alia, for the purpose of removing any obstruction to the conduct of the business of the House.
[78] If the present case had taken the course that I think that it should have taken, the issue raised by the notice of appeal [122] could have been disposed of on narrow grounds. Those grounds are that the Council has power to suspend a member who is obstructing the business of the Council and that it is for the Council to judge whether its business is obstructed. Barton establishes that the Council has power to suspend a member who obstructs the business of the
Council. Dill [123] , Glass [124] and Richards [125] establish that, if a privilege exists, the resolution of the House is conclusive as to whether it has been breached.
[79] It was for the Council, and the Council alone, to determine the facts of the case and whether they fell within the privilege or power to suspend for obstruction. Upon those questions, the resolution of the House was conclusive [126] . There was no need, therefore, for the Court of Appeal to determine whether the functions of the Council were such that reasonable necessity entitled it to demand the production of the papers. Indeed, I have real difficulty in seeing how the Court of Appeal had jurisdiction to determine the issue, an issue which after all concerns only the relationship between the House and one of its members and the internal administration of the business of the House.
[80] However, the judges of the Court of Appeal and the other members of this Court have taken the view that the exercise of the power of suspension is dependent upon the existence of the right to demand the papers. Moreover, the submissions of the respondents as well as those of the appellant accepted that that issue was open for determination by the Court of Appeal. Because the parties have put the issue before the Court for decision, it seems appropriate to express my view on the subject.
The power of the Council to demand that a Minister table papers
[81] If the correct test for determining whether the Council had power to demand the tabling of the papers was whether their tabling was reasonably "necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute" [127] , I think that the state of authority would compel the answer that it does not have the power which it sought to exercise. The requirement of reasonable necessity in this context is not satisfied by showing that the suggested power is conducive to the proper exercise of the functions of the Council, notwithstanding that the argument for the appellant almost conceded that this would suffice. A legislative chamber relying on "reasonable necessity" must show that it would be impossible, in the absence of the power asserted, to carry out the relevant function and that therefore that power is impliedly "supplied by necessary intendment" [128] . In this case, as will later appear, the relevant function is that of examining the conduct of the executive government to determine whether that conduct should be the subject of criticism, control or both. Plainly, access to the papers of the executive government concerning the Lake Cowal gold mine would assist an examination of the executive's activities. However, it is impossible to conclude that, without the papers, that conduct cannot be the subject of effective examination by the House. A Select Committee exercising its powers under the Parliamentary Evidence Act 1901 (NSW), for example, could no doubt obtain a great deal of information concerning the matter.
[82] The most that can be said for implying a necessary power from the functions of the Council is that it would be convenient and perhaps very helpful if the Council had access to the papers. However, inconvenience in achieving a goal - even one authorised by statute - does not justify implying a power that would interfere with or erode fundamental rights [129] . The power that the Council now claims arises by implication from the need to exercise the Council's functions is a far reaching one which seriously interferes with the freedom of Ministers. If it exists as an essential incident of the exercise of the Council's functions, it must logically extend as far as authorising searches and seizures of Ministers and also of private citizens who have relevant information. If it is the functions of the Council that furnish the power, the identity of the person who has the relevant information is surely irrelevant. A court should be slow to conclude that the functions of any institution necessarily imply the existence of such an invasive power.
[83] As the seminal case of Kielley [130] makes clear, the source of the implication upon which the respondents rely is the maxim: Quando lex aliquid alicui concedit, concedere videtur id, sine quo res ipsa esse non potest [131] . The meaning of this maxim was explained by Fleming CJ in Fenton [132] in a passage which O'Connor J has said in this Court sets out its "full and true import" [133] . In the Supreme Court, Fleming CJ said that the true import of the maxim was [134] :
"Whenever anything is authorized, and especially if, as a matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment."
[84] In Fenton, the Select Committee was appointed in accordance with the Standing Rules and Orders of the Legislative Council of Van Diemen's Land to inquire into abuses in the Convict Department which were matters within the province of the Council to examine. The respondent, Hampton, was a "material and necessary witness" in the inquiry who refused to obey a summons requiring him to give evidence before the Committee [135] . Yet the Privy Council held that it was not necessary in the relevant sense to imply a power in the Council that would enable it to arrest the respondent and charge him with contempt, notwithstanding that his evidence would probably have been of the greatest assistance to the Committee. That being so, it is plain that, in the absence of the statutory power contained in the Parliamentary Evidence Act, the Legislative Council of New South Wales could not compel the persons associated with the Lake Cowal gold mine to attend before them. Nor could it require them to produce documents to the Council.
[85] Having regard to the decisions of the Privy Council no such power existed before federation, and I cannot see any ground for thinking that federation or the passing of the Australia Acts [136] has given the Council a power which it did not have before 1900. Neither event gives any support to the idea that, unsupported by a statutory power, a resolution of the Council can alter the legal rights of citizens and give the Council the lawful power to compel them to attend before the Council or to make documents available to the Council.
[86] Willis and Christie [137] was decided by this Court after federation. Yet the Court applied the law as laid down in Barton [138] and held that the Legislative Assembly had no power to arrest the respondent after he had left the House, notwithstanding that shortly before he had been guilty of disorderly conduct in the House. It occurred to none of the judges that federation had enlarged the implied powers of the Assembly. Of course, the provisions of the Commonwealth of Australia Constitution Act 1900 (Imp) affect the Constitutions of the States. The provisions of the federal Constitution make many references to the States and their Parliaments. That Constitution also refers to the Ministers and the Executive Council and Executive Government of a State. But, for present purposes, nothing in the federal Constitution increases the implied powers of a House of a State legislature to obtain documents or information or to suspend a member for contempt. Even s15 of the federal Constitution, which requires the Houses of Parliament of a State to choose a Senator for that State where a Senate vacancy occurs, does not enlarge the implied powers of an individual House - although that section probably confers such implied powers as are necessary to enable the Houses "sitting and voting together" to choose a person to fill the vacancy.
[87] In the Court of Appeal, all the judges [139] relied on the enactment of the Australia Acts as supporting the conclusion that the functions of the Council and reasonable necessity implied a power to compel the production of the documents. Those Acts may have had some impact on the legislative powers of the Parliament of New South Wales, but it is not easy to see how they altered the functions of either House of the New South Wales Parliament. Significantly, the learned judges of that Court did not identify any specific change in the functions of either House. The Solicitor-General for New South Wales pointed out that, in Powell v Apollo Candle Company [140] which had been decided the year before Barton [141] , the Privy Council, applying its decisions in R v Burah [142] and Hodge v The Queen [143] , had declared that the legislative powers of the Parliament of New South Wales within their territorial limits were "plenary powers of legislation as large, and of the same nature, as those of [the Imperial] Parliament itself" [144] . They also declared in that case that the New South Wales Legislature was "supreme, and has the same authority as the Imperial Parliament." [145] The Solicitor-General pointed out that for many years prior to the passing of s2 of the Australia Act 1986 (UK) it had been accepted that, notwithstanding what had been said in Powell concerning the territorial limitations of colonial legislatures, those legislatures also had power to make laws which operated extra-territorially [146] .
[88] In the Court of Appeal, Mahoney P made the radical suggestion [147] that the effect of the Australia Acts might in a future case warrant reconsideration of the principles upon which the implied powers of the individual Houses of Parliament are determined. Presumably, his Honour thought that the Houses may now have the power to punish for contempts committed outside the Parliament or its precincts. Mahoney P said [148] :
"The powers of the State legislatures, and accordingly, of the Houses composing them cannot now be determined upon the basis that their legislative powers are limited to the powers appropriate only to a colonial legislative body, that the functions which they are to perform are limited accordingly, and that the powers which they are to have because of what they are and what they may do are to be measured by legal maxims appropriate to powers which are derived from grant."
His Honour said that the Parliaments of the States are legislatures with plenary powers "which derive not from grant but from their characters as organs representative of the democratic societies which they represent" [149] . Mahoney P went on to say that, so far as inherent powers were concerned, State Parliaments "have the powers appropriate to a body of that character" [150] .
[89] I have already pointed out that, well before the passing of the Australia Acts, the legislatures of the States had plenary powers and could legislate extra-territorially. I have great difficulty in seeing how the passing of the Australia Acts, in some unidentified way, affected the principles by which the implied powers of the individual Houses of the State Parliaments authorise resolutions which legally bind others. It may be that in some situations - which I do not presently see - a House now has functions that it did not have before the enactment of that legislation in 1986. If so, the principle of reasonable necessity may authorise resolutions that a legislative chamber could not have passed before the Australia Acts. But the judgment of Mahoney P appears to suggest that those Acts have changed the whole basis for determining the implied powers of the individual Chambers. His Honour said that they now have the powers "appropriate" to organs representative of a democratic society.
[90] If the learned President means that each of the Houses of a State Parliament has implied power to do all that is appropriate to perform its functions as a democratically elected body, provided it does not affect the rights of outside parties, I would hesitate to disagree with what his Honour says. Arguably, the individual Houses of the legislatures of the Australian colonies and States have always had this power. If he means, however, that individual Houses now have power to coerce and punish individuals so long as what they do is "appropriate" for a democratically elected body, I would unhesitatingly reject the suggestion. It would confuse what is administratively reasonable or appropriate for the individual Houses to do with what it is necessary to do in order to protect the institution and its functions. Indeed, this radical view of the power of the individual Houses would be tantamount to giving each of them an implied legislative power of its own.
[91] Nor has the evolution of the institution of responsible government in this century altered the situation that existed when New South Wales was given self-government. It will later be necessary to examine the functions of the Council. But nothing concerning those functions has been so changed or added to that they are now different in kind from those exercised by the Council at earlier stages of its history. It is true that members of the Legislative Council are now elected while until 1933 they were appointed. But the Legislative Assembly has long been elected directly by the people, and yet the Privy Council and this Court have held that the existence of its implied powers is to be determined in accordance with the principles applicable to other colonial legislatures, whether the particular legislature be elected or appointed [151] .
[92] It is hardly surprising that the Council has no implied power to pass resolutions compelling witnesses to appear before it or to order them to produce documents. Resolutions of a parliamentary chamber cannot alter the law. It has long been accepted that even a resolution of the House of Commons cannot change the law of the land [152] . It is true that the House of Commons has power to compel the production of documents. That power probably arises from the fact that it is also a court of record. That cannot be said of the Houses of the Parliament of New South Wales. Furthermore, although the Crown, in its capacity as one of the three constituent elements of the legislature, may set up a Royal Commission without statutory authority, a Royal Commissioner has no authority to compel a person to attend and give evidence or to produce documents to the Commission in the absence of statutory authority [153] . It would be surprising that an individual House should have the power of compulsion when the Crown which is also an essential part of the law-making body, does not have that power when it seeks information. A House is not a legislature. Its resolutions do not make law. If it claims a power not conferred by positive law, its claim must be rejected unless it can point to a power that inheres in its very existence as a legislative chamber or which is essential in the true sense to the carrying out of its functions.
[93] I cannot accept that the functions of the Council confer an implied power to compel ordinary citizens to produce documents to it. If that is so, how can those functions compel a member of the House to produce such documents to it? The answer made by counsel for the respondents is that the appellant stands in a different position to ordinary members of the public because he is not only a member of the Council but a Minister of the Crown and Leader of the Government in the House. I think that counsel for the respondents is correct in claiming that this relationship makes all the difference and that it provides a secure basis for the power which he claims. But his answer demonstrates that the power is not implied because of the functions of the Council. It demonstrates that the power exists not because the functions of the Council make it necessary in the relevant sense to imply it, but because the appellant, by reason of his membership of the Council and his position as a Minister of the Crown, has a special relationship with the House which entitles it to obtain the information. When the nature of parliamentary government under the Westminster system of responsible government is properly understood, it is apparent that the power which the respondents claim is one that inheres in the very notion of a parliamentary chamber which is a co-ordinate part of a legislature in such a system.
The introduction of responsible government
[94] To a person familiar with the history of British parliamentary institutions and the constitutional history of New South Wales, it seems plain enough that the Constitution of 1855 gave the people of New South Wales self-government by means of a system of responsible government. It may be, as Professor John Ward has insisted [154] :
"that the Australian colonies did not demand responsible government in the 1850s. It was imposed upon them before they had sought it. They received it willingly because they believed that it was their destiny, when they saw it established in British North America and New Zealand."
But whether or not the colonies demanded that they be given responsible government, no one now denies that New South Wales received responsible government in 1855.
[95] No doubt the conclusion that New South Wales received responsible government as the result of the 1855 Constitution would not readily occur to someone unfamiliar with the system of responsible government and the history of New South Wales government or from a mere examination of the Constitution of 1855. The provisions of the Constitution which were contained in a Schedule to an Imperial Act [155] were brief. They provided for a bicameral legislature [156] for the taxes and revenues of the Colony to form a Consolidated Revenue Fund [157] and for that Fund to "be subject to be appropriated to such specific Purposes as by any Act of the Legislature of the Colony shall be prescribed in that Behalf" [158] . But the provisions of the Constitution reveal very little about how the Legislature of the Colony was to be administered, how laws were to be made or how governments were to be formed. They make no mention of a Premier or Ministers, although mention is made of a Speaker, "Official Members of the Government" and a President of the Legislative Council. Nothing in the Act required any Minister to be a member of either House of the Legislature. The provisions of the Act made no mention of a Cabinet or the Cabinet system of government although they refer to a Governor and an Executive Council.
[96] The Constitution Act plainly assumed a body of constitutional and political practice which would give meaning to its very sparse provisions. And the contemporary materials make it clear that the Imperial authorities intended that the new Constitution would be administered in accordance with the principles of responsible government [159] . This was so notwithstanding that powerful and conservative interests in the Colony may have taken the view that it was contrary to their interests to have responsible government with Ministers answerable to a Parliament which in turn was answerable to the people. The opposition of these parties - some of whom were responsible for the draft Constitution - may explain the lack of any clear indication in the text of the Constitution that the Colony was to have responsible government. Professor Ward has written [160] :
"The leading pastoralists and officials ... and their allies ... needed the [Colonial Secretary's] help to have their constitution enacted by the [I]mperial Parliament; therefore, they had to do his bidding by providing for responsible government in the constitution as he wished. They were careful merely to make responsible government possible; they did not make it mandatory and most of them did not believe that it would actually begin for many years. For their purposes responsible government was unnecessary and possibly dangerous, and they did not seek it."
[97] However, the Imperial authorities had no doubt that the Constitution was intended to and did in fact introduce responsible government into the Colony. In the Despatch to Governor Denison which transmitted the Imperial Constitution Act, Lord John Russell, who introduced the Imperial Bill into the Parliament on 17 May 1855, wrote [161] :
"21. The only remaining instructions, which I have to convey, relate to the introduction of Responsible Government; but it is so evident, from the provisions of the Colonial Bill before me, that your Advisers and the Legislature, have had fully in view the exigencies of that system, that I am not aware that any special directions are required from myself. You will shortly receive a fresh Commission and Instructions, amended in those particulars which the introduction of that system renders it necessary to change. There need be no delay in your bringing the Act into operation, as these documents will arrive in time for the assembling of the new Legislature."
[98] Para23 of the Despatch contained the following statement [162] :
"And, at the same time, the Colonists of New South Wales, by their avowed desire to assimilate their Institutions, as far as possible, to those of the Parent Country, have proved that this sympathy was not merely the expression of a common sentiment arising from a common origin, but connected with a deliberate attachment to the ancient laws of the community from which their own has sprung."
[99] In my opinion, there can be no doubt that from 1855 the system of responsible government existed in New South Wales, as it existed in the United Kingdom, in so far as that system could be adapted to the circumstances of the Colony [163] . The Constitution Act 1902 (NSW), the current successor of the Constitution of 1855, makes that even plainer.
The functions of the Council
[100] In his Preface to the first volume of Professor Redlich's The Procedure of the House of Commons [164] , Sir Courtenay Ilbert, then Clerk to the House of Commons, stated that the business of the House of Commons was "threefold - legislative, financial, critical." He pointed out that Parliament, and the House of Commons in particular [165] :
"provides the money required for administrative purposes by authorising taxation; it appropriates, with more or less particularity, the purposes to which the money so provided is to be applied; it criticises the mode in which money is spent and in which public affairs are administered ; its support is indispensable to those who are responsible for administration; but it does not administer. That task is left to the executive, that is to say, to Ministers of the Crown, responsible to, but not appointed by, Parliament.
It is this separation but interdependence of the criticising and controlling power on the one hand , and the executive power on the other, that constitutes the parliamentary system of government." (emphasis added)
[101] Sir Courtenay Ilbert went on to say that "[u]nless these vital and fundamental principles of the British constitution are understood and appreciated, British parliamentary procedure is unintelligible." [166]
The power of the Council to demand the tabling of documents by a Minister
[102] In Stockdale, Lord Denman CJ described the House of Commons as "the grand inquest of the nation" [167] . In Howard v Gosset [168] , Coleridge J said that "the Commons are, in the words of Lord Coke, the general inquisitors of the realm". These statements summarise one of the most important functions of a House in a legislature under the Westminster system, namely, that it is the function of the Houses of Parliament to obtain information as to the state of affairs in their jurisdiction so that they can, where necessary, criticise the ways in which public affairs are being administered and public money is being spent. The Crown through its Ministers governs. Under the system of responsible government, those Ministers are responsible to the Parliament. For that system to work effectively, for the Administration to retain the confidence of the Parliament, the Houses of Parliament must have access to information relating to public affairs and public finance which is in the possession of the government of the day.
[103] It is true, of course, that governments are made and broken in the lower House of Parliament - in New South Wales, the Legislative Assembly. But that does not mean that the Legislative Council has no power to seek information from the government or the Minister who represents the government in the Legislative Council. It is part of the legislature of New South Wales. If it is to carry out one of the primary functions of a legislative chamber under the Westminster system, it must be entitled to seek information concerning the administration of public affairs and finances. The Legislative Council is not, as Queen Elizabeth the First thought the House of Commons was, a chamber that merely says "Aye or No" to bills presented to it [169] . It is an essential part of a legislature which operates under a system of responsible government. Whether the Council can enforce a demand for the information which it seeks is another matter.
[104] There was a long period in English parliamentary history when membership of the Privy Council, rather than membership of the Commons, was the source of advice to the Crown. Yet even in those days, "the right of the Commons to information on money matters was never disputed" [170] and "[a]ccording to time-honoured practice the House of Commons is entitled to demand at any time such particulars as it may want as to trade or finance or as to national or local administration, by means of a direct order." [171] This is part of the customary law of the House of Commons and therefore part of the common law. It is the source of the Commons' right "to summon any subject of the state as a witness, to put questions to him and to examine any memoranda in his possession." [172] A person who disobeys such an order of the House of Commons is guilty of contempt of the House. According to current doctrine, the Houses of the New South Wales legislature lack the power to punish for contempt. Absent statutory backing, they have no power to compel a witness to attend Parliament or to produce documents and no power to punish a person who refuses to produce those documents. But that is quite different from saying that they have no power to obtain information relevant to the business of the House. The power and its enforcement are distinct matters, as Dr Hearn recognised when writing of the power of the House of Commons to compel the attendance of witnesses and the production of documents [173] . The Legislative Council does not, in my view, exceed its powers when it seeks information from a Minister concerning the administration by the government of State affairs.
[105] The seeking of information by questions directed to Ministers is of comparatively recent origin. No doubt its development was brought about by the introduction of the system of responsible government, a system that was not properly established until the passing of the Reform Act 1832 (UK). But it is an essential part of that system and was so recognised at the time of the grant of self-government in New South Wales [174] . Writing in 1908, Professor Redlich said of the practice in the House of Commons [175] :
"[T]he ordinary questions put to the members of Government play a very important part in the proceedings of the House of Commons, and give the whole institution the great significance which it possesses.
'Asking questions' is a modern method, developed by recent parliamentary practice, of supervising the general policy and the administrative acts of the Ministry."
[106] In my opinion, as the result of the establishment of self-government in New South Wales, the Legislative Council and the Legislative Assembly acquired the power to seek information concerning matters of government policy and administration from Ministers. As Mahoney P pointed out in the Court of Appeal [176] , "it would be extraordinary if, having a matter before it for consideration, it could not do what was necessary to inform itself about it." As his Honour pointed out, it can obtain information in various ways - "by Committees, by consultants and by the provision of information by members and others." [177] That the power exists has been recognised by Ministers over a long period. They have recognised it by answering questions and producing documents. The Journals of the Council and Hansard, for example, show that between 1856-1857 and 1932-1933, many documents were produced in Returns to Orders for Production. Only in comparatively recent times does the existence of the power seem to have been denied.
[107] Moreover, the obtaining of information concerning the administration of government is part of the business of the Council. The history of the procedures of the House of Commons and its effect upon our understanding of parliamentary procedure under the Westminster system makes it clear that it is a matter for the Council as to the way in which it conducts business and the order of its business. Sir William Holdsworth has pointed out that the right of the Commons to control its business was essential to the success of the Commons' opposition to the Crown [178] :
"The privilege of deciding the order of business enabled the House to obstruct. It could decline to do anything till its grievances were redressed."
Of all the great privileges of the House of Commons, none played a greater role in the Commons achieving influence than its capacity to control its own business and to set its own agenda. The view of the Tudor and Stuart monarchs was that the House of Commons was summoned only to vote on the appropriations asked of them, to approve legislation submitted to them and to express opinions on matters of policy only when asked [179] . The House of Commons would not have become the powerful institution that it is if the views of those monarchs had prevailed. The importance of Parliament under the Westminster system is in no small part due to the seemingly inconsequential right of the House of Commons to control its business. The right of any legislative chamber under the Westminster system to control its business has existed for so long that it must be regarded as an essential part of its procedure which inheres in the very notion of a legislative chamber under that system. If the Legislative Council wishes to conduct its business by asking questions of Ministers of the Crown present in that Chamber, I can see nothing in parliamentary history that would deny it that right. Indeed, the whole history of parliamentary procedure supports it.
The sanctions for refusing to produce documents
[108] What steps, then, can the Council take when a Minister who is a member of the House refuses to produce documents or to provide information? Notwithstanding the decision in Armstrong v Budd [180] , it may be doubted whether the House has a power of expulsion in such a case. As decisions of the Privy Council show, however, the Council has the power to suspend a member who obstructs the business of the House. Whether a member is or is not obstructing the business of the House is a matter for the Council. Ordinarily it would be reasonably open to the Council to conclude that the failure of the Minister to provide the information requested was an obstruction of its business.
[109] In the present case, the procedure for suspension set out in Standing Orders 258 to 263 was not followed. But that is not decisive. Those Orders do not exclusively define the circumstances in which the Council may protect itself from an obstruction of its proceedings [181] . It follows, therefore, that because the Council has the power to suspend a member for obstruction of its business the validity of its resolution cannot be impeached in the Supreme Court or elsewhere.
[110] In my opinion, the substance of Mr Egan's appeal fails. However, I think that the Order and Declaration made by the Court of Appeal should be set aside. The Court did not answer any of the eight questions referred to it. Nor do I suggest that it should have. Instead, the Court entered upon the determination of whether the appellant had made out his claim "that para2 and para3 of the resolution of the Legislative Council dated 2 May 1996 concerning the plaintiff were invalid." By its Order, it has dismissed the whole of that claim although none of the judgments in the Court of Appeal deal with the important questions raised by para3(b) of the resolution [182] , the parties apparently ignoring its content. The substance of that sub-paragraph is to require the appellant "to attend in his place at the Table of this House on the next sitting day to explain" his reasons for non-compliance with two Orders of the House and "the Government's failure to comply with the Order of the House dated 26 October 1995 to table certain documents concerning the recentralisation of the Department of Education." If this aspect of the case is governed by the principles laid down in Barton [183] , as the members of the Court of Appeal held was the case in relation to the production of documents, it would seem difficult to support these parts of the resolution, particularly having regard to this Court's decision in Willis and Christie [184] .
[111] In this Court, the appellant seeks a declaration that para2 and para3 of the resolution of the Council are invalid. Although he made no complaint that the Court of Appeal had not dealt with para3(b), I think that the proper course is to allow his appeal so that the Order of the Court of Appeal can be set aside. In the absence of a statutory requirement, a court should not entertain a claim for a declaration that a resolution of a House of Parliament is invalid. In the course of determining the legal rights of parties, it may be necessary for a court, as an incident of that determination, to hold that a resolution of a legislative chamber cannot affect a person's legal rights. But that is a different matter from directly entertaining a claim that a resolution of the chamber is invalid. No doubt there are cases - those arising under the federal Constitution for example - where a court is compelled to make a formal declaration concerning the internal affairs of a legislative chamber. But, as a general rule, courts should eschew making such declarations even when the validity of the resolution is incidental to the determination of a plaintiff's legal rights. I would allow the appeal so that the Order of the Court of Appeal can be set aside. In lieu thereof, I would declare that the Supreme Court has no jurisdiction to make the declaration sought.
[112] I would also allow the appeal so that the declaration of trespass which the Court made can be set aside. That part of its Order declares that "[t]he defendants committed an actionable trespass to the person of the [appellant] by reason of the extent of his removal on 2 May 1996." With great respect to the learned judges of the Court of Appeal, that declaration is too imprecise. No doubt its intended meaning can be ascertained by reference to the reasons for judgment of the Court. But the meaning of orders which declare legal rights and duties and which can found an action for contempt should be clear on their face without the need to resort to other materials to understand their true effect. In any event, it is difficult to see what purpose this declaration serves. The appellant did not claim damages. Moreover, while the conduct which is relied on relates to events that are alleged to have occurred in Macquarie Street, it arises out of events which occurred in the Legislative Council. Respect for the procedures of the Council requires that a court should make declarations or entertain claims arising out of the business of the Council only when it is essential to declaring the existing rights of parties. If the appellant had claimed damages, the appropriate order would be reflected in a monetary sum, not a declaration. But he makes no such claim. In those circumstances, the declaration does nothing more than make a statement about a past event without it having any effect on the parties' legal rights. Since this Court must make the order which the Supreme Court should have made, in the exercise of our discretion, the claim for a declaration should be dismissed.
[113] The appeal should be allowed in order to give effect to the orders that I think are appropriate. But since the appellant has failed on the substantial issue which he propounded, he should pay the costs of and incidental to the appeal. Furthermore, the costs orders made in the Court of Appeal should stand.