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Michael Egan v Max Willis and Anor

195 CLR 424
[1998] HCA 71

(Decision by: Kirby J)

Egan v
Willis

Court:
High Court of Australia

Judges: Gaudron, Gummow and Hayne
McHugh

KirbyCallinan J
Starke, J

Judgment date: 19 November 1998

Decision by:
Kirby J

[114] This appeal from the New South Wales Court of Appeal [185] concerns the powers, privileges and immunities (the "privileges") of the Legislative Council ("the Council") of the Parliament of the State of New South Wales. The questions presented for decision involve issues of high constitutional importance. It could scarcely be otherwise where the Court is asked to define the extent to which the Executive Government of a State is accountable to a democratically elected chamber of a Parliament and to the rule of law itself.

A Minister is suspended and removed from Parliament

[115] The issues were tendered for decision as a consequence of the filing of a statement of claim in the Administrative Law Division of the Supreme Court of New South Wales. By this, the Hon Michael Egan ("the appellant") sought a declaration that the Hon Max Willis ("the first respondent") and Mr Warren Cahill ("the second respondent") had committed an unlawful trespass upon his person [186] . The appellant was, and is, a Minister in the Executive Government of the State and Leader of the Government in the Council. At the relevant times, the Hon Max Willis was the President of the Council. Mr Cahill was the Usher of the Black Rod, an officer of the Council.

[116] In consequence of various political controversies in 1995 and 1996, the Council resolved that identified "government" documents should be laid before the House. Such resolutions are not unusual. Extracts from the parliamentary record demonstrate that similar demands have been made over virtually the entire history of the Council, at least since the middle of the last century [187] . Most such demands have been met; although sometimes (apparently to protect confidentiality or other interests) papers have been provided for private and conditional perusal by the member demanding them [188] . Not until this case has the right, in law, of the Council to require production of State papers in the possession or under the control of a member arisen for judicial decision. To understand the problem, it is useful to sketch the context.

[117] On 23 April 1996 the Council resolved that papers relating to consideration of a report of a commission of inquiry into a goldmine be tabled and that the Minister (meaning the appellant) provide those papers to the Clerk of the House. This was done in accordance with Standing Order 18 [189] . Pursuant to a resolution by Cabinet that Ministers should "decline to comply with any orders from either House of Parliament to table documents on the grounds that such orders are invalid and beyond power" [190] , the appellant did not comply with the resolution of the Council. That fact was drawn to notice of the Council on 1 May 1996. An Opposition member moved that the Council censure the appellant. During the ensuing debate, it emerged that the appellant had, in his possession or under his control, documents falling within the terms of the resolution. Asked to justify his refusal to table them, the appellant contested the right of the House to make its demand. He stated: "The constitutional principle ... is that the government of the day is responsible to the Legislative Assembly" [191] . Although this was a principle narrower than that expressed in the Cabinet's decision (which authorised Ministers to decline to comply with orders of either House of Parliament) it signalled the battle lines drawn between the Government and the Council.

[118] By majority, the Council resolved to censure the appellant. It called on him by the next morning to deliver to the Clerk the documents referred to. No such documents were delivered or tabled. In the result, on 2 May 1996, again by majority, the Council resolved that the failure of the Government and of the appellant to comply with its orders was "an affront to the full and effectual exercise of its important functions". The Council adjudged the appellant to be guilty of contempt of the House.

[119] Asserting that it was "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", the Council suspended the appellant from the service of the House for the remainder of the day's sitting. It ordered him to appear on the next sitting day to explain his, and the Government's, failure to comply with the Council's orders [192] . According to the record of proceedings, the first respondent then directed the second respondent to escort the appellant from the precincts of Parliament. When the appellant declined to leave voluntarily, the chair was vacated because of disorder. The Usher removed the appellant to the public street beyond the perimeter of Parliament. The drama then moved to the courts.

[120] The pleadings in the Supreme Court included an assertion by the appellant of trespass and a defence by the respondents which justified as lawful the action they had taken. The appellant's reply contested the lawfulness of that action. Issues of law were referred to the Court of Appeal. That Court found the so-called "footpath point" in favour of the appellant, holding that there was no justification, in law, for the direction that the appellant be escorted beyond the perimeter of Parliament [193] . All that could be justified was his exclusion "from the House and from all the rooms set apart for the use of the Members" [194] . However, the Court otherwise upheld, as valid, the Council's resolution of 2 May 1996. It declined the declaration sought by the appellant. By special leave, the appellant now contests the latter conclusion. In this Court, the respondents did not seek to re-agitate the "footpath point".

Common ground

[121] In addition to the common ground about the facts leading to their dispute, there was much agreement between the parties about a number of essential questions.

1.
Interpretation of the facts : The respondents did not dispute that the removal from the chamber to the public footpath was against the appellant's will. It was assumed from this fact, and from the manner in which the removal was effected, that unless justified in law the removal amounted to a trespass to the appellant's person. It was not in dispute that the sole purpose of the order of the Council was to coerce the appellant, a member of the House and a Minister, to produce the disputed documents. No suggestion was raised that the appellant did not have in his possession or under his control documents of the kind referred to in the successive resolutions [195] , nor that he was incapable of complying with the Council's demands, save for the suggested lack of power of the Council to make them [196] . It was accepted by those members of the Council who supported its resolution that the Council had no power to punish the appellant, eg by way of fine or imprisonment [197] . While what they did might, in law, be held to constitute punishment, it was not their objective. It was accepted for the appellant that the powers purportedly exerted against him rested on the fact that he was a member of the Council, present in the chamber. Different considerations might arise in respect of an absentee member and would arise in respect of a member of the other House of Parliament or a stranger. It was also accepted that there was no precedent for such a suspension of a member, Minister or otherwise, to coerce the tabling of documents. The appellant argued that this was significant given the 140 year history of the Council. For the respondents it was argued that this was so only because no other Minister had claimed, and insisted upon, such an absolute immunity from accountability to the Council.
2.
Legal foundations : It was common ground that the Parliament of New South Wales, including the Council, was originally established by the Constitution Act 1855 (Imp) [198] by which New South Wales achieved responsible government. By that Act, the new legislature was given [199] "full Power and Authority ... to alter the Provisions or Laws for the Time being in force" under it. It was accepted that, from its statutory provenance and its constitutional history and functions, the Council did not, in law, inherit all of the privileges enjoyed by the House of Commons of the British Parliament. Nor were its privileges defined by statute, as they have been in the case of other Australian Parliaments [200] . For the Federal

Parliament [201] and other State Parliaments [202] , express provision has been made in various ways to assimilate the privileges of the Commons House of Parliament of the United Kingdom. Such a formula could have been adopted by the Parliament of New South Wales, there being no legal impediment [203] . Despite various attempts, no such legislation has been enacted. The only Act of specific relevance in New South Wales was the Parliamentary Evidence Act 1901 (NSW) [204] . Its procedures, even if applicable to the appellant in the present controversy, were not invoked. In this way, it became common ground that there was no express power in the Constitution Act, or any statute enacted by the New South Wales Parliament or the Standing Orders, authorising the assertion by the Council of its right to demand the tabling by the appellant of the specified documents. Nor was there an express foundation for the resolution adjudging the appellant guilty of contempt and authorising the respondents to effect his removal from the precincts of the Council which followed. If a legal foundation for such conduct existed, it had to be found in the inherent or implied privileges belonging to the Council as a constituent part of the Parliament of New South Wales.

3.
Functions of the Council : To ascertain whether the Council enjoyed the privileges which it had asserted and exercised against the appellant, both sides agreed that it was essential to define what the functions of the Council were. For the respondents, it was accepted that it was not sufficient, in order to establish an inherent power or to derive an implied one, that its existence would merely be conducive to the Council's functions, in the sense of convenient or advantageous. Relying on a line of authority in the Privy Council [205] , in this Court [206] and in the Full Court of the Supreme Court of New South Wales [207] , the Court of Appeal adopted as its criterion whether the privilege asserted was reasonably necessary for the existence of the body and the proper exercise of its functions [208] . In this Court, both sides accepted that criterion. However, each derived different conclusions from its application. Although the appellant accepted that the role of the Council included "participation in legislation" [209] , the potential ambit of that phrase was contested. It was not accepted, for example, that it extended to coercing a Minister or any other member, to table documents in his or her possession or control without express authority of law to make such demand [210] . To ascribe it to an "inherent" power or privilege of a chamber of a Parliament which had begun its days as a subordinate colonial legislature, was a distortion of the history of that Parliament. Thus, whilst the applicable principles were agreed, their application was hotly disputed.
4.
Justiciability : No objection was taken by the principal parties on the ground that the dispute was not justiciable. On the contrary, the appellant initiated the proceedings, alleging trespass and seeking a declaration to that effect. The respondent joined issue, supplied additional material and invited the determination of the dispute by the Supreme Court. This was, indeed, the course suggested during the Parliamentary debates which led to the appellant's removal from the Council [211] . The Supreme Court thus had before it a claim which demanded a legal ruling as to the existence of the privilege upon which the Council relied to justify an otherwise unlawful invasion of the appellant's legal rights. In the absence of clear authority, that Court was obliged to adjudicate the issues thus tendered [212] . As no party suggested that the issues were not justiciable, and as, in a sense, the competing parties represented the Executive Government of the State and the Council requesting adjudication, no criticism can be addressed to the Court of Appeal for proceeding, as it did, to resolve, as justiciable, the dispute which was submitted to it.
5.
Footpath and precinct point : As I have said, the respondents did not, in this Court, seek to challenge the ruling of the Court of Appeal that expulsion of the appellant to the public footpath exceeded the implied powers necessary for the protection of the functions of the Council and its performance as such. A point concerning the limits of the expulsion had been taken during the debate in the Council [213] . It was overruled by the first respondent. Questions were raised during argument as to whether "reasonable necessity" would extend, for the purpose of coercion, beyond the chamber of the Council into the "precinct" of the Parliamentary building, including ministerial officer and members' rooms. But as neither party sought to re-agitate this point, decided by the unanimous opinion of the Court of Appeal, I am content to leave it there.

[122] A common thread running through judicial consideration of challenges as to the existence or absence of asserted parliamentary privileges has been the disinclination of the courts to be drawn into factual contests and questions of degree and proportionality. In part, this disinclination arises from the deference historically paid by English courts to the entitlement of Parliament to declare its own privileges [214] . In part, it represents a wise disinclination of judges to be dragged into the political controversies which commonly attend the conduct of business within the Houses of Parliament.

The issues

[123] When the issues before the Court are refined by the excision of matters upon which the parties agreed, or chose not to contest, the questions for decision (adding those posed by an intervener and by the Court itself) were:

1.
Is the parties' dispute justiciable or, having regard to the Bill of Rights 1688 [215] as applied in New South Wales [216] , or otherwise, was the Court of Appeal in error, and did it act beyond its jurisdiction, in inquiring into and deciding the privileges of the Council? (The justiciability point) [217] .
2.
Is the answer to the justiciability point and the resolution of the privileges of the Council as a constituent part of the Parliament of a State of the Commonwealth, affected in any material way by the provisions of the Australian Constitution? Or by the provision of the Australia Acts 1986 as they affect the status and powers of the Parliaments of the Australian States, including that of New South Wales? (The constitutional point).
3.
Depending on the answer to the first two points, did the Council have the implied or inherent power to act as it did in relation to the appellant within the chamber and in the precincts of the Council in (a) ordering him to table documents in his possession or control and (b) suspending him from the service of the House and removing him from its precincts so as to coerce him into tabling such documents? It is obvious that the answer to (b) depends upon the answer to (a). (The scope of the privilege point).

The justiciability point

[124] In the Court of Appeal, the question of the justiciability of the dispute was not overlooked. However, because of the common understanding of the parties, the Court considered that it was unnecessary to debate the point [218] . In this Court, the Attorney-General for South Australia intervened on behalf of that State [219] . He submitted that the Court of Appeal had erred in proceeding to inquire whether the suspension and removal of the appellant was lawful. He based this submission, in part, on the prohibitions contained in Art 9 of the Bill of Rights 1688 and, in part, upon the common law governing the inherent or implied privileges of a House of Parliament such as the Council. In essence, South Australia contended that inquiries addressed to the "reasonableness" of the necessity to have the powers asserted or as to whether particular conduct amounted to a permissible coercion, as distinct from impermissible punishment, were exclusively matters for the relevant House of Parliament to decide. They were political. They were not matters into which a court would, or should, intrude. The only exception allowed related to the "footpath point" which, by definition, fell outside the suggested prohibition on curial intervention into the internal business of a House of Parliament.

[125] Although it would be congenial to ignore a point raised only by an intervener, I do not think that the Court should. The intervener is a State of the Commonwealth. By federal law, it is taken to be a party to the appeal [220] . It contends that the Court of Appeal did not have jurisdiction to deal with questions referred to it, save for the "footpath point". As the issue of justiciability lies at the threshold of this Court's response to the appeal, it is necessary to resolve it.

[126] A preliminary issue may be disposed of quite readily. South Australia submitted that the Court of Appeal had no jurisdiction to answer specified questions. These were the questions formulated in the order removing the proceedings from the Administrative Division of the Supreme Court into the Court of Appeal. But when the matter came before the Court of Appeal, it elected to deal with it by way of disposing of the proceedings in their entirety. It did not provide answers to the specified questions, as such. In adopting this course, the Court followed its usual practice [221] . It was not suggested that a separate issue of justiciability arose because the issues posed were theoretical. On the contrary, they were entirely practical. They addressed the legal rights of the principal parties. Where a party has regularly invoked the jurisdiction of a competent court, that party has "a prima facie right to insist upon its exercise and to have [the] claim heard and determined" [222] .

[127] This said, the question remains whether the Court of Appeal otherwise lacked jurisdiction to decide whether the respondents had acted unlawfully. Will a court, even to resolve the legal rights of parties to proceedings before it, intrude itself within the walls of a Parliamentary chamber? Or will it refuse to do so out of deference to the requirements of the Bill of Rights 1688 as applied in New South Wales or out of a conception of the exclusive rights of the Houses of Parliament in the performance of their legislative functions and the protection of their own privileges [223] ?

[128] A further preliminary issue can be dismissed. Certain textual difficulties arise in applying the Bill of Rights provision to the Parliament of New South Wales. Thus Article 9 reads:

"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".

[129] This statute of the English Parliament is one of those specially mentioned and preserved by the Imperial Acts Application Act 1969 (NSW) [224] . When the Bill of Rights was enacted by the Parliament at Westminster, the only "Parlyment" referred to was the enacting one. However, the Bill of Rights is part of the constitutional heritage of Australia. It came with those who established the colonies. It applied in the colonies by the medium of imperial law [225] , except so far as later altered or repealed by valid local statute [226] . Against the background of its constitutional importance, and the trouble taken by the New South Wales Parliament as recently as 1969 to preserve its operation in that State, it is plain that the language of Art 9 must be taken to refer, with such modifications as are necessary, to the Parliament of the State and hence to each of the chambers which constitute it in which "speech and debates or proceedings" take place, including the Council. Similar conclusions have been reached in respect of the application of the Bill of Rights to the Parliaments of other former colonies [227] . Any suggestion that Art 9 is inapplicable to the Council of the Parliament of New South Wales must therefore be rejected.

[130] But does that article forbid the scrutiny of proceedings which the Court of Appeal undertook at the request of both parties in order to be able to determine the controversy which they tendered?

[131] South Australia pointed to the broad view taken of the application of Art 9 of the Bill of Rights in Prebble v Television New Zealand Ltd [228] , a New Zealand appeal to the Privy Council. It submitted that this view had its ultimate foundation in respect for the "absolute and exclusive" right of every Parliament, as such, to impose discipline "within their walls" [229] . In that sense, Art 9 was to be seen as "merely one manifestation" of a "wider principle" of deference by the courts to the exercise by Parliamentary chambers of their privileges in relation to members. That deference was reinforced by a determination on the part of courts not to become embroiled in the political controversies which such questions typically involve [230] . Whereas other jurisdictions of Australia have generally defined their privileges by statute [231] , in New South Wales no relevant statute, justiciable in a court, has been enacted. The only applicable statutory provision was therefore Art 9. It imports, so South Australia submitted, basic English constitutional notions so that acts which constitute "proceedings in Parliament" are not justiciable in the courts. The acts preceding and immediately following the suspension of the appellant were said to fall within that prohibited class.

[132] In resisting the point, the appellant trod a fine line. On the one hand, he contested the applicability of the approach adopted by this Court in relation to a chamber of the Federal Parliament expressed in R v Richards; Ex parte Fitzpatrick and Browne [232] which he ascribed to the assimilation of English practices by force of the language of s49 of the Australian Constitution. This had not happened in the case of the New South Wales Parliament. Unlike the Parliament at Westminster, he argued, the New South Wales Parliament had no functions as a court. It had no inherent powers. It enjoyed no more privileges than those expressly conferred or necessarily implied. The appellant also disputed the correctness of the decision of the New South Wales Supreme Court in Armstrong v Budd [233] . He pointed to suggested inconsistencies in the reasoning of the judges in that case about justiciability. Yet, in this case, it was the appellant who invoked the jurisdiction of the Supreme Court. In order to demonstrate the unlawfulness of the Council's resolutions, orders and actions, it was essential for him, in the light of the pleading of the respondents, to invite the Court to enter beyond the walls of Parliament so that it could determine the legal admissibility of his claim.

[133] In my view the objection by South Australia to the justiciability of the matter before the Court must be dismissed. My reasons are as follows:

1.
As the Privy Council pointed out in Prebble v Television New Zealand Ltd [234] , it is important to avoid confusion between the right to prove the occurrence of parliamentary events and the prohibition on questioning their propriety, as for example, suggesting that a member had misled the House or acted wrongly or from improper motives [235] . Like every statutory provision, Art 9 of the Bill of Rights, in its application to New South Wales, has a purpose. It is to defend, relevantly against legal inquiry or sanction in a court, the freedoms belonging to a House of Parliament. Those freedoms include its right to conduct its affairs, answerable, on matters of truth, motive, intention or good faith, only to the House concerned and through it to the electors. These considerations are not raised in any way by the competing submissions of the parties to these proceedings. Whilst each doubtless has political criticisms to make of the other (as illustrated by the Hansard Debates) such were not in any way the questions for the courts. Their only concern has been with the legality of what had occurred. Upon that question each side in the contest sought the Supreme Court's ruling. That ruling could be given by the use of legal techniques without entering upon the political arguments or debates. Naturally, the resolution of the legal controversy might have political implications. But that is so in most, if not all, constitutional matters [236] . To designate all matters having political or partisan implications as non-justiciable would be to withdraw judicial supervision (and the rule of law) from an intolerably broad class of conduct. It would lead to a conclusion that a mere claim of privilege by a House of Parliament expelled the courts from holding whether the privilege, in law, exists. And that is not the law.
2.
Even if it be the case that individual members of a Parliamentary chamber may not waive a privilege belonging collectively to a House of Parliament [237] , the present case is virtually unique in the stance adopted by the antagonists. On the one side of the record is the Executive Government, inferentially supported by those members of the Council of its political persuasion who contest the right of the Council to act as it did in relation to the appellant. On the other side are parties who were officers of the Council directed by it to act as they did. Each side has come to the Court arguing its view of the law of parliamentary privilege. Far from impeaching or questioning the freedom of speech and debates or proceedings in Parliament, this is a case where the record shows that the members of the Council, although of different views, desired the ruling of the Supreme Court to define the limits of the Council's powers (as distinct from adjudging the propriety of the exercise of those powers in the present matter) [238] . Whilst consent or acquiescence cannot overcome the absence of a justiciable question apt for judicial determination, where the source of the suggested problem is said to lie principally in the requirements of Art 9 of the Bill of Rights, as applied, it is surely relevant that no member of the Council raised objection to the jurisdiction of the Supreme Court but all, apparently, sought that Court's ruling.
3.
In a string of cases concerning colonial or post-colonial legislatures, courts which must have been aware of Art 9 of the Bill of Rights proceeded to judge claims of trespass and, for that purpose, to consider the lawfulness of the resolutions of the legislative chamber in question directing the plaintiff's arrest [239] . In none of these cases was Art 9 perceived as an obstacle to the examination by the court of the relevant parliamentary proceedings. Even if in some cases [240] it might be doubted that Art 9 applied locally, that was certainly not the position in most of the cases [241] . I would not accept that so many decisions in this area of discourse were reached per incuriam, as must have been the case if the submission for South Australia were correct. It should be accepted that the courts proceeded on the assumption that Art 9 did not apply by its terms or had to be adapted to the context of a Parliament other than that at Westminster and in a way consistent with the discharge by the courts of their function to specify the limits of the privileges in question. Where no express statement of those privileges exists, apt for the case in hand, it is for the courts to define the outer boundary of any implied privilege claimed. This they do by reference to concepts such as "essentiality" [242] or "reasonable necessity" [243] . In fixing the boundaries, courts naturally extend a large measure of deference to the assertion by a House of Parliament itself of the existence and limits of the House's privileges. Privilege being established, courts would not become involved in decisions about the exercise of the privilege in a particular case.
4.
There is a further reason, in Australia, for dismissing the argument of non-justiciability. Courts in this country, at least in the scrutiny of the requirements of the Australian Constitution, have generally rejected the notion that they are forbidden by considerations of parliamentary privilege, or of the ancient common law of Parliament, from adjudging the validity of parliamentary conduct where this must be measured against the requirements of the Constitution [244] . Whilst it is true that Australian courts will ordinarily permit parliamentary procedures to be completed [245] before they intervene, the power of intervention by the courts cannot be seriously doubted. It is the nature of a federal polity that it constantly renders the organs of government, federal and State, accountable to a constitutional standard. State Parliaments in Australia, whatever their historical provenance, are not colonial legislatures. They are provided for in the Australian Constitution [246] . To this extent, at least, they are rendered accountable to the constitutional text. Notions of unreviewable parliamentary privilege and unaccountable determination of the boundaries of that privilege which may have been apt for the sovereign British Parliament must, in the Australian context, be adapted to the entitlement to constitutional review. Federation cultivates the habit of mind which accompanies constitutional superintendence by the courts. Courts recognise a large measure of power in, say, the chamber of a State Parliament, to define and enforce its notions of its own privileges. But the Australian constitutional context does not accord to such a body a completely unreviewable entitlement, in law, to define and enforce its own powers. Any such powers can only be exercised in conformity with the political and judicial system which the Constitution creates. Decisions of other countries and from other times therefore need to be adapted in the modern Australian context when it is suggested that they apply to the privileges of a House of Parliament of an Australian State [247] . I would acknowledge no lesser scrutiny by the Court of the lawfulness of a claim of privilege by a chamber of the New South Wales Parliament than that accepted in R v Richards: Ex parte Fitzpatrick and Browne [248] in relation to the Federal Parliament which arguably enjoys larger powers and broader immunities by virtue of the text of the Constitution [249] .

[134] It is therefore lawful to proceed to consider the ambit of the privilege relied upon in this case whilst avoiding the evaluative judgments inherent in deciding whether the appellant's conduct merited the action which occurred. This is the approach which has been taken in New South Wales in the past to the delineation of the respective functions of the Houses of Parliament and the courts [250] . Nothing in Art 9 of the Bill of Rights or the common law of Parliament as applied in this country forbids that approach. Although the line drawn may not always be bright, it will be found by courts limiting their functions in this area to the elucidation of legal questions and the avoidance of purely political ones. The controversy tendered here as to the existence and scope of the privilege relied upon is susceptible of judicial resolution. It is justiciable. The submission to the contrary is rejected.

The constitutional point

[135] In the course of argument, questions were raised by the Court concerning the broader implications for the issues for decision of the language and structure of the Australian Constitution. Two aspects of potential importance were mentioned. The first is the reference in the Constitution to State Parliaments [251] , to the Executive Government of the States [252] and to the State Governors who are advised by such governments [253] . Clearly, the Constitution envisages that State Parliaments will exist, comprised of a single House or Houses which can be properly described as such, be capable, as such, of exercising the functions envisaged for them in the Constitution and having a character which is not inconsistent with the basic norms of government which the Constitution establishes.

[136] The second feature of the Australian Constitution referred to is the creation of a judicature in which is vested the judicial power of the Commonwealth including when exercised by State courts [254] . In Ex parte Fitzpatrick and Browne [255] this Court held that neither the structure of the Constitution providing separately for the judicature, nor its provisions, required a reading down of s49 of the Constitution defining the privileges of the two Houses of the Federal Parliament in terms of those of the House of Commons of the Parliament of the United Kingdom. That aspect of the decision in Ex Parte Fitzpatrick and Browne may one day require reconsideration. But it is not required in this case [256] .

[137] The Australian Constitution makes no express reference to the privileges of the Houses of the State Parliaments. In this regard they are treated differently from the Federal Parliament in respect of which specific provision is made. It was suggested that the framers were content, for most purposes at least, to leave the definition of the privileges of the Houses of the State Parliaments to them and to the courts. Drawing implications from the general character of constitutional institutions (including the State Parliaments) requires care when it comes to matters of detail [257] . There are limits on the extent to which legal requirements can, or should, be derived from general notions appearing in the Constitution [258] . Rigidity of interpretation should be avoided [259] , given the variations which already exist in the composition and election of the Upper Houses of State Parliaments in Australia and the undesirability of importing unexpressed restrictions which would needlessly inhibit legitimate experimentation in the government of the States.

[138] Having regard to these considerations, and to the way in which the appeal was argued, it is appropriate to confine the significance of the Australian Constitution for the present problem to this. Where the asserted privilege of one House of a State Parliament is not expressly provided for by law, but must be implied as essential to the existence of the body as a Parliamentary chamber or as reasonably necessary to the performance of its functions as such, the starting point for determining the validity of this assertion is not the series of cases of the 19th century in which the Privy Council and colonial courts defined the implied privileges of colonial legislatures. It is the ascertainment of the privileges that must be inferred from the recognised functions and status of the body as a House of Parliament of an Australian State and thus of part of the legislature of a constituent of the Australian Commonwealth.

[139] This is not to say that the learning of the old cases should be discarded as irrelevant. But their value is now primarily historical rather than juridical [260] . Where, as in the case of the Houses of the New South Wales Parliament, no external reference point has been provided to identify and define the limits of the applicable privileges, the inquiry is even more at large than otherwise it would be. It involves identifying the functions of the House in question and then specifying, by reference to the Constitution, statute law and the common law of Parliaments, those powers essential to the existence of the House as a chamber of Parliament, or at least reasonably necessary to the performance by that House of its functions as such. The powers which fit those criteria are not frozen in terms of the exposition of the powers of colonial legislatures, whether in Australia or elsewhere. Thirty years ago Wallace P in Armstrong v Budd [261] pointed out how anachronistic that approach would be for the laws of contemporary Australia. It is even more so today.

[140] The status of the New South Wales Parliament, and its constituent chambers, was immeasurably enhanced by the coming of the Commonwealth and the provision for the States in the Australian Constitution. This may not have been fully understood at the time. However, we have now had almost a century to adjust our thinking to the new constitutional realities. In ascertaining an implied privilege of a House of the New South Wales Parliament, it may sometimes still be useful to use the old language of colonial days. But in giving content to the criteria of essentiality and reasonable necessity it is important to keep in mind that the legislative body whose status and functions are the touchstone for the determination is one significantly different from the chamber of a colonial legislature. It is a component of a system of representative and responsible government established by the Australian Constitution for a free, independent, democratic and federal nation. It must therefore be apt to an independent legislative body which enjoys, under that Constitution, plenary legislative powers - now released from earlier historical limitations [262] .

[141] With these changes has come an alteration in the character of the New South Wales Parliament and hence of its constituent Houses. That change of character inevitably affects the determination of the privileges which will be imputed by the law to a House of such a Parliament. There are doubtless further consequences for the State Parliaments and their respective Houses, which flow from the references to them in the Australian Constitution. The elucidation of these implications must await future cases. For the present, it is enough to insist that the Council should be seen as a constituent House of a Parliament of a State of Australia which bears a significantly different relationship to the people governed by it than that which existed in colonial times [263] .

The scope of the privilege point

[142] Grounds of objection : Reduced to their essentials, the appellant's arguments suggested five reasons why the Council lacked the power to order him to table the specified papers, to suspend him for default and consequently to authorise the respondents to do what they did in removing him forcibly from the chamber and precincts of the Council. These were (1) that no such powers were expressly afforded to the Council by law, that they were not inherent in the Council as a House of Parliament and could not be implied as being essential to the existence of the Council or reasonably necessary to the performance of its functions as such [264] ; (2) that the action taken was not authorised by the accepted legislative functions of the Council; (3) that it was not authorised by the function (if any) of the Council to scrutinise the conduct of the Executive Government; (4) that it involved a serious intrusion into the basic rights of the appellant which, to be sustained as lawful, would require express legal authority; and (5) that it amounted to an impermissible imposition of punishment by the Council which was beyond its implied privileges. None of these complaints is sustained.

[143] Test for inherent or implied powers : It is unnecessary to explore at length the question of whether the Council, as a House of the New South Wales Parliament, enjoys, by virtue of the Australian Constitution, the statutes constituting it or the common law of Parliaments, inherent powers as distinct from those inferred from, or implied in, the legislative grant of power establishing it. In the context of courts, this question has been controversial [265] . Certainly, the United Kingdom Parliament, as the successor to the English Parliament, has inherent powers by reason of its origins as an emanation of the royal prerogative. It has been argued that the position of the Houses of the New South Wales Parliament is different because that Parliament is purely a creature of statute or (possibly) because it has not adopted a legislative formula assimilating its privileges to those of the British House of Commons [266] . There are dicta of other courts which run in the opposite direction [267] . It is unnecessary to resolve this question because the implied powers which the respondents asserted would be no different from any inherent powers applicable.

[144] Drawing upon the line of cases from colonial times, the appellant argued that a strict test would be applied to discern those powers which were essential to the existence of the Council or reasonably necessary to the performance of its functions. To reinforce the legal authority, the appellant pointed out that the New South Wales Parliament could, at any time during virtually its entire existence, have propounded a law affording itself expressly the powers which were now asserted as implied. It could have adopted, as other colonies and States have done, a general rule assimilating its privileges to those of the British House of Commons. In default of such legislative initiatives, courts (so it was argued) would not fill the gap. This was particularly so in the case of New South Wales because of the adoption of the express, but limited, provisions of the Parliamentary Evidence Act [268] . For powers, potentially oppressive to the citizen to be imported by implication, the appellant argued that clear and unmistakable necessity would have to be demonstrated [269] .

[145] It may be accepted that strict criteria will be adopted to imply to a House of Parliament a privilege with the potential to involve significant obligations and the risk of abuse. But no one doubts that implied powers exist. The problem is one of defining their content. In respect of the assertion by a chamber of Parliament of implied powers over a member present in that chamber, it is much more likely that a court will accept the implication than it would were the power to be asserted over a member outside the chamber, over a member of the other House (if there be one) or over a stranger [270] . It is also probably true to say, as Mahoney P did in the Court of Appeal, that judicial perceptions of the needs and functions of legislative institutions, and thus of the powers that will be implied to them where an express grant is missing, will vary over time. They will change according to constitutional perspectives and social viewpoints. [271] To identify the reasons for the failure of the New South Wales Parliament to adopt a comprehensive statute or the general principle of assimilation to the privileges of the British House of Commons, or to explain the failure of the Legislative Council itself to adopt Standing Orders of greater particularity [272] , is to engage in speculation. The uncontested result is that there is a gap. It can be filled, if at all, only in accordance with legal principle. But in a proper case it will be filled.

[146] Council's legislative function : The appellant argued that the Court of Appeal had misunderstood the legislative functions of the Council. Of necessity, he had to concede that it had a legislative function. Its name and history require that concession. However, the appellant suggested that such function was limited to "participating in legislation". As presented, this conception of the Council's legislative function appeared highly circumscribed. It was the appellant's case that the mistake which had arisen in relation to the power of the Council, in support of its legislative function, to require a member to table official documents derived from an erroneous assimilation of the Council's powers to those of the British House of Commons. This, it was submitted, was inappropriate by reason of the lack of an assimilative statute. It was also inappropriate given the history of the Council and the legal limitations on its powers. Those limitations could be seen most clearly in s5A of the Constitution Act 1902 (NSW). That section permits any Bill appropriating revenue for the annual services of government which has been rejected or amended by the Council to be presented to the Governor, although the Council has not approved it. The provision and the requirement that appropriation bills should originate in the Legislative Assembly [273] were said to demonstrate the constitutional limits placed on the Council so as to make the importation of implied powers from British Parliamentary practice quite unsafe. It was conceded that the prevention of disorderly conduct by the suspension of a member of the Council would be within the implied powers of a body such as the Council. But, it was submitted that the failure of a Minister to comply with a demand that official documents be tabled, was of a different character. If such an obligation were to be imposed, it would need statutory authority. In any case it was pointed out that there was no suggestion that the demand for the papers in the present matter was incidental to any legislative measure before the Council or pending when the demand was made.

[147] The last-mentioned argument is inadmissible. To explore it would involve the Court in evaluation of the occasion for the asserted privilege rather than whether the privilege existed in law or not. Only the latter consideration is proper to a court confining itself to legal questions [274] .

[148] It is certainly true that each House of the United Kingdom Parliament has, for a long time, enjoyed the power to call for the production of papers by means of "a motion for a return" [275] . There are exceptions acknowledged by the conventions of Parliament. Most documents requested would be voluntarily produced upon request of a member or demand by resolution of a House. Many documents must be tabled in conformity with statute. The position in the United States is similar. In Quinn v United States [276] , Warren CJ, delivering the opinion of the Supreme Court said:

"There can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation. This power, deeply rooted in American and English institutions, is indeed co-extensive with the power to legislate. Without the power to investigate ... Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively."

[149] Despite the submissions of the appellant, I see no reason of principle why the same is not true of the Council in the Parliament of New South Wales. The limitations on its legislative functions and powers to initiate legislation are strictly confined and highly specific. In all other respects the Council is an essential chamber with large legislative powers. The notion that it "participates in legislation" in some subordinate way or that it must simply respond to legislation presented by the Executive Government is completely inconsistent with the constitutional functions which it enjoys. It would be competent to any member of the Council, upon the tabling of official documents such as those demanded here, to introduce legislation to cure a perceived defect of administration, to refer the papers for inquiry by a committee or to take other legislative action as the Council thought fit. In McGrain v Daugherty [277] it was said in the Supreme Court of the United States, in words which apply with no less force to the New South Wales Parliament:

"A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information - which not infrequently is true - recourse must be had to others who do possess it."

[150] In the United States, where the Executive Government is not present in the legislature, procuring relevant information may sometimes be more difficult than it is in an Australian Parliament. At a federal level the position in the United States is now largely regulated by statute [278] . But in Australia, where the Ministers by law or by convention [279] must be members of the legislature, their availability to assist the legislature in the performance of its lawmaking functions is more immediate. Indeed, this is one of the advantages of the system of responsible government which is practised in Australia.

[151] In Clayton v Heffron [280] this Court remarked that, with the establishment of the Parliament of New South Wales, with its two Houses, "the principles of responsible government were introduced and with that came the principles and conventions and general tradition of British parliamentary procedure". Amongst those principles are those which state that, whilst in the chamber, a member is a person under the lawful authority of the chamber. He or she is bound to conform to its lawful demands. A demand incidental to the performance by the chamber of its legislative functions is such a demand [281] . A demand for documents containing information relevant to the discharge of those functions, either now or in the future, cannot of itself be unlawful [282] . All just exceptions provided by law aside, such a demand is prima facie essential to the existence of that body as a legislative chamber. It is reasonably necessary to the discharge of its functions as such. The appellant's objection on this ground has no legal merit [283] .

[152] Scrutinising the Executive : The appellant next objected to so much of the reasoning of the Court of Appeal as proffered a second ground for upholding the legality of the Council's resolution. This was that, by demanding the tabling of the documents as it did, the Council was performing its lawful function of rendering the Executive Government accountable to it as an incident of the system of responsible government [284] . Care must be observed in the use of the notion of "responsible government" in legal reasoning. It is a political epithet rather than a definition which specifies the precise content of constitutional requirements. As with the notion of "representative government", it is possible to accept the words as a general description of a feature of constitutional arrangements in Australia without necessarily being able to derive from that feature precise implications which are binding in law [285] .

[153] The appellant submitted that, in the context of New South Wales, "responsible government" meant no more than that the Crown's representative acted on the advice of the Ministers and that the Ministers enjoyed the confidence of the Lower House of Parliament [286] . From these premises, the Court was urged to accept the notion that the Executive Government was not accountable to the Council and that a member of that Government sitting in the Council could not be obliged to hand over official documents on the basis that this was necessary to make the scrutiny of Government effective. I cannot agree with these submissions.

[154] It reads too much into the statutory limits on the powers of the Council [287] to suggest that it has no function in rendering the Executive Government accountable, through it, to the Parliament and thus to the electors of the State. This argument appears to be an attempt to put the Executive Government above Parliament, comprising as it does, two Houses. That attempt cannot succeed [288] . The practice and Standing Orders of the Council allow for oral questioning of Ministers present in the chamber. They do so precisely to make the Council's scrutiny of the Executive Government effective. There seems no reason in logic to limit such scrutiny to oral answers given by a Minister or to exclude the provision of written documents which are in the Minister's possession or under his or her control and not otherwise legally exempt from production. It is by such scrutiny that the system of government established by the Constitution Act and envisaged by the Australian Constitution permits effective public debate, facilitates the democratic choice of the members of the chambers and allows periodic judgment of the government by the electors. The suggestion that only the Lower House has the power to extract documentary information from the Executive Government is not only inconsistent with the Cabinet resolution to which the appellant originally adhered. It involves a view of the accountability of the Executive Government to Parliament, including the Council, which is alien to the system of government which the Constitution Act establishes and the Australian Constitution envisages [289] .

[155] The reason why the accountability of Ministers in the Council is not spelt out in terms in the Constitution Act itself, or in the Standing Orders, may be that it is so fundamental to the existence of a legislative chamber in our system of government, and necessary to the performance of that Chamber's functions as such, that it was accepted as axiomatic that, if a House of the Parliament insists and there is no lawful reason for resistance, a member, including a Minister, must obey the House's demand [290] . Whether that is the explanation or not, the legal power of the Council to make such a demand upon the Executive Government cannot be doubted. Where the representative of the Executive Government is a member of the Council, the power of the latter to suspend that member in order to coerce him or her to comply with its demand can likewise not be doubted. To deny the Council such powers would be to destroy its effectiveness as a House of Parliament. The fact that the Executive Government is made or unmade in the Legislative Assembly, that appropriation bills must originate there and may sometimes be presented for the royal assent without the concurrence of the Council does not reduce the latter to a mere cipher or legislative charade. The Council is an elected chamber of a Parliament of a State of Australia. Its power to render the Executive Government in that State accountable, and to sanction obstruction where it occurs, is not only lawful. It is the very reason for constituting the Council as a House of Parliament [291] . This ground of objection also fails.

[156] Intrusion into civil rights : The appellant then argued that the resolution of the Council and the steps taken to give effect to it were unlawful because they coerced him and impinged on his basic civil rights without clear authority of law. The Court was reminded of the authorities in which it has said, many times, that inconvenience is not a ground for eroding fundamental civil rights [292] . The appellant submitted that, even if the Council had a right to demand the official documents, if it wished to enforce that right in a way which infringed his liberties, it could only do so with the authority of express legislation [293] . Analogies were drawn to the requirements imposed by the Court upon the Executive Government where it had sought, arguably for valid reasons, to impose burdens upon citizens without express authority of law. In essence, the appellant contended that his failure to comply with a demand, such as was made by the resolution of the Council, should be left to carry only the political consequences which flowed. Doing so would reflect the distinction between the recognition, as lawful, of powers implied in a legislative body that were protective of its status and functions and those which constituted an aggressive assertion of its will more appropriate to legislation [294] .

[157] There is no merit in this argument in the circumstances of this case. Although it is true that upholding the lawfulness of the Council's resolution and of the actions performed by the respondents in pursuit of it, deprives the appellant to that extent, of an entitlement which he would otherwise have to recover redress for the trespass to his person, the coercion of the appellant was not directed to him as an individual citizen. It was addressed to him as a member of the Council, also a Minister, sitting in the chamber. That is how it must be characterised. Quite different considerations would arise were a resolution to be directed to a non-member or a Minister sitting in the other chamber or to a stranger. Temporary suspension of members is a sanction frequently used by a House of Parliament in order to coerce that member to conform to the will of the House [295] . The will of the House might relate to the prevention of rowdy or disruptive conduct, but it is not confined to such behaviour. The relevant limits are those which arise from the nature of the chamber as a House of Parliament and the lawful performance of its functions, including its legislative functions and its functions of rendering the Executive Government accountable, through it, to the Parliament and the electors of the State.

[158] Impermissibility of punishment : The English Parliament claimed for centuries a power to punish members and strangers for contempt of Parliament. In colonial times it was held that, without valid legislation, the power of punishment did not accrue to a colonial legislature [296] . It would not be implied [297] . In the United States there is no equivalent disinclination to impute to the Congress a power to punish those found guilty of contempt of Congress [298] . But in Australia, it has been held, for a long time, that a parliamentary chamber has no implied power of punishment [299] . This rule has existed too long to be changed by the Court even if it were so inclined. But the difficulty of drawing a line between legitimate coercion and punishment has often been acknowledged [300] .

[159] The appellant laid emphasis upon this difficulty. He sought to resist the acceptance of the implied powers urged on behalf of the Council by pointing to the punitive effect which depriving him of his seat in the chamber had not only upon him as a citizen but upon those who had elected him. Difficult questions might arise where a longer or indefinite suspension or expulsion was attempted. In this appeal this Court is not required to consider the admissibility of expulsion either generally or for the purpose of coercing a member to conform to the will of the Council expressed in a resolution [301] . It is enough to say that suspension of a member for the remainder of a single day's sitting and the application of minimal force to effect that member's removal where he would not leave the chamber and precincts voluntarily, could not on any view be characterised as punishment. It was, as it purported to be, an attempt to uphold the will of the Council against the resistance of the appellant. The distinction between punishment and coercion was acknowledged during the debates in the Council. It was observed in what the Council resolved and what the respondents proceeded to do [302] .

[160] Abuse and exceptions : In the course of his arguments, the appellant sought, finally, to dissuade this Court from confirming the decision of the Court of Appeal by reference to the problems and risks which were said to be inherent in that course. Thus, it was argued that the power to demand the tabling of documents in the possession of a member might, if upheld, be abused. Such demands could be addressed to a political opponent [303] or to a Minister in the other chamber or to a stranger. They might be used for extraneous or improper reasons. Whilst the risk of such abuses exists, the law cannot be expressed by reference to "some distorting possibility" [304] . It should not be imputed to the elected members of an Australian Parliament that they will act improperly or venally. And if they do, it should not be assumed that the law, and Parliamentary Standing Orders and procedures, would not afford relief.

[161] There would, indeed, be exceptions to the obligation of a member, including a Minister, to table documents demanded by a resolution of a chamber of Parliament. Such exceptions could arise on grounds of individual privacy, confidentiality (as for example papers disclosing Cabinet discussions [305] ) public interest immunity, as well as other grounds. At this stage of these proceedings it is unnecessary to say anything about such grounds of exemption. It is significant that in the long history of elected legislative chambers in Australia, an impasse such as the present, has usually been avoided by give and take on the part of the legislature demanding information and the Executive Government initially reluctant to give it.

[162] The appellant argued that the risks of abuse and the catalogue of exceptions made it inappropriate to uphold, as an implied power, entitlements which were not spelt out in legislation where the checks and balances could be precisely drawn. Whilst that argument has some force, the necessity to uphold the legislative powers of a chamber of an Australian Parliament, and its functions to render accountable the Executive Government, present within it, is of great constitutional importance. History suggests that it might be unsafe to wait for comprehensive legislation on such matters. Meantime, the present case falls to be determined. The powers of the Council and its officers must be decided. It will primarily be for the Houses of a Parliament to avoid abuses of the principle established by this case. In extreme cases, abuse might invite judicial intervention. The principles governing claims for immunity or exemption from the obligation of a member, including a Minister, to produce documents demanded by a House of Parliament can await occasions when a claim to a specific exemption is made and refused. That point has not been reached in this case, given the stance adopted by the appellant.

Conclusion and orders

[163] On the footing that there has been no challenge in this Court to the determination by the Court of Appeal of the "footpath point", the declaration that the respondents committed an unlawful trespass to the person of the appellant in that regard will be sustained. I see no merit in the criticism that a declaration of trespass is an inappropriate remedy or that the declaration made was too wide, too imprecise or too divorced from the parties' legal disputes. No-one submitted that this was so in the otherwise comprehensive arguments received by the Court.

[164] It is sufficient for this Court to dispose of the issues before it to hold, as I would, that no error occurred in the Court of Appeal's refusal to make the declaration sought by the appellant that the resolutions of the Council of 2 May 1996 were invalid. The appeal should be dismissed. The cost order in the Court of Appeal should not be disturbed. The appellant should pay the respondents' costs in this Court.


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