Michael Egan v Max Willis and Anor

195 CLR 424
[1998] HCA 71

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(Judgment by: Gaudron, Gummow and Hayne JJ)

Egan v
Willis

Court:

Judges: Gaudron, Gummow and Hayne
McHugh
Kirby
Callinan J
Starke, J

Judgment date: 19 November 1998

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Judgment by:
Gaudron, Gummow and Hayne JJ

[1] On 1 May 1996, the Legislative Council of New South Wales passed a resolution calling on the appellant, the Leader of the Government in that House and Treasurer, Minister for Energy, Minister for State Development and Minister Assisting the Premier, to table certain papers in the House or deliver them to the Clerk. The appellant did not do so, the Cabinet having earlier agreed that Ministers should decline to comply with any orders from either House of Parliament to table documents.

[2] On 2 May 1996, the Legislative Council passed a resolution adjudging the appellant guilty of a contempt of the House (para2), suspending him from the service of the House for the remainder of the day's sitting (para3(a)), and ordering him to attend in his place at the Table of the House on the next sitting day to explain his reasons for not complying with a number of orders of the House to table documents, including the papers mentioned in the resolution of 1 May 1996 (para3(b)). The appellant did not leave the House. The Usher of the Black Rod (the second respondent) was directed by the then President of the Legislative Council (the first respondent) to escort the appellant from the chamber and the parliamentary precincts. Black Rod did this, taking the appellant from the chamber and the parliament building out on to the footpath of Macquarie Street.

[3] The appellant brought an action in the Supreme Court of New South Wales seeking declarations that (i) para2 and para3 of the resolution of 2 May 1996 were invalid and (ii) his removal into the street constituted a trespass. Those proceedings were removed into the Court of Appeal of New South Wales. That Court (Gleeson CJ, Mahoney P, Priestley JA) ^[1] dismissed the claim for the first declaration and, in respect of the other claim, 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".

[4] The Court of Appeal, in dismissing the claim for a declaration of the invalidity of para2 and para3 of the resolution, dealt with the merits of the matter rather than on the footing that a bare declaration with respect to the validity of proceedings in the Legislative Council should not be made. The Court of Appeal appears to have dealt with the merits on the footing that the questions respecting the privileges of the Council required an answer as a necessary step to a determination of the private rights of the appellant for which he sought vindication through the tort of trespass to the person.

[5] We emphasise that, even if an application for a bare declaration of the nature we have described would have been justiciable (as to which we express no concluded opinion), at least as a matter of discretion, a suit constituted solely to obtain such relief ordinarily ought not be entertained. Questions respecting the existence of the powers and privileges of a legislative chamber may present justiciable issues when they are elements in a controversy arising in the courts under the general law ^[2] but they should not be entertained in the abstract and apart from a justiciable controversy. Declaratory relief should be directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the courts ^[3] . This is so even though in the area of public law the ground of equitable intervention has not been limited to the protection of any particular proprietary or legal entitlement of the plaintiff ^[4] .

[6] There is a further point with respect to the relief granted by the Court of Appeal. Para3(b) of the resolution ordered the appellant to attend in his place on the next sitting day to explain his reasons for non-compliance with various orders. However, the Court of Appeal, responding to the course of argument, treated para3(a), which dealt with suspension, as the matter essentially in question ^[5] . There was, as Gleeson CJ observed, no argument with respect to para3(b) ^[6] . Nothing said in the reasons that follow should be read as expressing any view upon the validity of para3(b) of the resolution.

[7] The appellant appeals to this Court by special leave. No cross-appeal has been brought against the limited declaration made below and therefore what became known in the argument and judgments in the Court of Appeal as the "footpath point" does not arise in this Court. The central question in this appeal is whether there was any justification for the trespass constituted by his removal from the chamber (and other rooms for the use of members) to the limit of the parliamentary precinct. That question, in turn, presents an issue as to the powers of the Legislative Council with respect to para2 and para3(a) of the resolution of 2 May 1996.

The Constitution Act and the Legislative Council

[8] In addition to his ministerial portfolios, the appellant is Vice-President of the Executive Council. S35C(3) of the Constitution Act 1902 (NSW) ("the Constitution Act") allows for the appointment by the Governor of one of the members of the Executive Council as Vice-President of that body. The Executive Council advises the Governor in the government of the State (s35B). The Premier and other Ministers of the Crown for the State are appointed by the Governor from among the members of the Executive Council and hold office "during the Governor's pleasure" (s35E).

[9] The Legislative Council was "reconstituted" on the commencement of the Constitution (Legislative Council) Amendment Act 1991 (NSW). This is the term used in s17(1) of the Constitution Act, which itself was inserted in 1991. The effect of s22B of the Constitution Act (as amended by the 1991 statute) is that a member of the Legislative Council holds office for a term longer than that of a member of the Legislative Assembly. Moreover, the system for the election of members of the Legislative Council, provided by s22A and the Sixth Schedule to the Constitution Act, differs from that provided by Div 3 of Pt3 of the Constitution Act (s23-s33) with respect to the Legislative Assembly.

[10] One consequence of these structural differences is that the government of the day may not command the sure support of a majority in the Legislative Council ^[7] . The "balance of power" may rest with members who are independent of any of the major political parties. The administration of which the appellant is a member did not, at the material time, enjoy the support of a majority in the Legislative Council. The submissions for the appellant suggested that this circumstance strengthened his position in the case. However, as will appear, that is not necessarily so. Rather, it may have provided the occasion for the exercise by the Legislative Council of its function with respect to the superintendence of the conduct of the executive branch of government, at least in its association with the legislative function of that House.

[11] In s3 of the Constitution Act, the expression "The Legislature" is so defined as to mean the Sovereign with the advice and consent of the Legislative Council and the Legislative Assembly. S5 makes provision for its general legislative powers. It states:

"The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever:

Pxrovided that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax or impost, shall originate in the Legislative Assembly."

S5A establishes a procedure whereby money Bills may be presented for the Royal Assent, notwithstanding that the Legislative Council has not assented thereto. S5B makes a special provision dealing with disagreements between the two Houses with respect to Bills other than those to which s5A applies; these provisions include a joint sitting of members of both chambers and may lead to the submission of the Bill in contention by way of referendum to the electors. S7A entrenches the position and powers of the Legislative Council.

[12] In general ^[8] , the two Houses enjoy the same right of disallowance of statutory rules ^[9] . S40 of the Interpretation Act requires the tabling before each chamber of written notice of the making of a statutory rule. S41 empowers either chamber to pass a resolution disallowing a statutory rule, a step which has the same effect as the repeal of the rule (s41(3)).

[13] The acts that are said by the appellant to be a trespass are acts that were done following the resolution for suspension of the appellant from the service of the House. That a House of the Parliament of New South Wales has power to suspend one of its members in some circumstances cannot be doubted and no party or intervener sought to argue to the contrary. Rather, the argument focused upon the occasion for suspension and upon the question of principle of whether the Legislative Council has power to require one of its members, who is a Minister, to produce State papers to the House. Some reference to the Standing Orders of the Legislative Council should be made.

Standing Orders

[14] PtV of the Standing Rules and Orders of the Legislative Council ("the Standing Orders") is headed "PAPERS". It comprises Standing Orders 18-22. Standing Order 18 states:

"Any Papers may be ordered to be laid before the House and the Clerk shall communicate to the Premier's Department any such order."

Standing Order 20 provides:

"All Papers and Documents laid upon the Table of the House by a Minister shall be considered public, and may be ordered to be printed on motion without notice, and it shall always be in order on the presentation of any document, except a Petition, Return to Address, or Order, for the Member presenting it to move, without previous notice, that it be printed, and, if desired, that a day be appointed for its consideration."

The Clerk "shall distribute to each Member of the Council a copy of each Paper printed by Order of the Council, and shall transmit to the Clerk of the Assembly a sufficient number of copies of all such Papers for distribution to the Members thereof" (Standing Order 22).

[15] In the Court of Appeal, Gleeson CJ said that the context shows that Standing Order 18 "refers to what are sometimes called State papers, that is to say, papers which are created or acquired by ministers, office-holders, and public servants by virtue of the office they hold under, or their service to, the Crown in right of the State of New South Wales" ^[10] .

[16] PtVIII of the Standing Orders is headed "QUESTIONS SEEKING INFORMATION FROM THE GOVERNMENT OR PRIVATE MEMBERS" and comprises Standing Orders 29-32A. Standing Order 29 deals with Question Time. It states:

"Questions may be put to Ministers of the Crown relating to public affairs; and to other Members, relating to any Bill, Motion, or other public matter connected with the business of the House, in which such Members may be concerned, and the Clerk shall enter upon the Minutes of Proceedings the Questions of which formal notice shall have been given, with the answers returned to the same."

The facts

[17] In the Court of Appeal, the Chief Justice described the circumstances of the dispute giving rise to the present litigation. His Honour said ^[11] :

"During 1995, in respect of a number of politically controversial government proposals, the Legislative Council, under Standing Order 18, resolved that there be tabled, in [that] House, documents relating to various activities of 'the Government'.

There was nothing novel about such resolutions. The Court has been given details of many occasions, going back to 1856, when the Legislative Council has passed resolutions requiring the production to the Council of State papers. It appears that, in the great majority of such instances, the requirement has been obeyed without demur. However, on several of the occasions in 1995 mentioned above, the power of the Legislative Council to require the tabling of State papers was disputed.

The issue came to a head with respect to a matter concerning a proposal by a mining company in relation to a gold mine at Lake Cowal near West Wyalong. The nature of the political controversy in relation to the proposal is irrelevant. It suffices to say that the Opposition in the Legislative Council moved for the appointment of a Select Committee to inquire into and report upon certain decisions that had been made by a Commission of Inquiry, and advice or information that had been received by the Government about the matter."

[18] On 23 April 1996, the Legislative Council resolved that there be tabled "all papers" relating to the consideration by the Government of the report of the Commission of Inquiry and the determination of the consent to the project. The resolution stated that it would be a sufficient compliance "for the Minister to table the documents required by delivering them to the Clerk of the House". It is common ground that the "Minister" referred to was the appellant.

[19] On 29 April 1996, Cabinet considered the resolution and made the following decision ^[12] :

"The Cabinet agreed that Ministers should act on advice previously obtained from Crown Law officers and, accordingly, 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."

[20] On 2 May 1995, the appellant had informed the Legislative Council that, in addition to acting in respect to his own portfolios, he would, in the matter of the representation of government responsibilities in the Council, represent the Premier and a number of other named Ministers, including the Minister for Urban Affairs and Planning. S38A of the Constitution Act provides for, at any one time, one Minister of the Crown who is a member of the Legislative Assembly to sit in the Legislative Council, with the consent of that body, and for the purpose only of explaining the provisions of any Bill relating to or connected with any Department administered by him; this Minister may take part in any debate or discussion in the Legislative Council on that Bill but shall not vote in the Legislative Council. The provision for "representation" by the appellant, including of the Minister for Urban Affairs and Planning, had no foundation in s38A. In the Court of Appeal, the Chief Justice observed ^[13] :

"In this context, the concept of representation has a significance based upon convention and parliamentary practice. It has no defined legal or constitutional status. A minister who is a member of one of the two Houses will be represented in the other House; the representative, the Court was informed, undertakes 'the accountability obligations' of the minister being represented 'to the extent permitted by the co-operation' of the latter."

The Chief Justice also noted ^[14] :

"It has been agreed between the parties that the [appellant] had in his custody and control at least four documents which were capable of being regarded as falling within the resolution of 23 April 1996. One of those documents was a report, or a copy of a report, from the Director-General of Urban Affairs and Planning to the Minister for Urban Affairs and Planning, dated 2 April 1996. The other three documents were described as ministerial briefing notes which had been prepared for the purpose of enabling the [appellant] to answer questions in the Upper House on the subject of the Lake Cowal project. There is no agreement, or evidence, as to whether the [appellant] had, or could obtain, any other documents, or copies of documents, falling within the resolution. The [appellant] has taken his stand, not upon any suggested compliance with the orders of the Council, but upon what he contends is the Council's inability to compel compliance."

The role of the courts [21] What we have observed when outlining the course of the proceedings in the Court of Appeal indicates a necessity to say something of the role of the courts in a dispute like this. In order to understand that role, it is necessary to refer to some matters of history.

[22] The history of the relationship between the courts and Parliament at Westminster is long and, at times, has been marked by conflict and controversy. That history underlies and underpins much of the law that has developed in this country. Central to the understanding of much of the history of the relationship between the courts and the Westminster Parliament is Art 9 of the Bill of Rights ("the Bill of Rights") ^[15] :

"That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament."

And Art 9 is relevant to the issues that fall for decision in this case because the Bill of Rights is one of the Imperial Acts dealt with in the Imperial Acts Application Act 1969 (NSW) ("the Imperial Acts Application Act"). S6 of that Act declares the Bill of Rights and various other statutes (including Magna Carta and the Habeas Corpus Acts of 1640 ^[16] , 1679 ^[17] and 1816 ^[18] ) so far as those Acts were in force in England on 25 July 1828 to have been in force in New South Wales on that day. This restates the effect of the Imperial Act known as the Australian Courts Act ("the Australian Courts Act") ^[19] . The Imperial Acts Application Act further declares that, except so far as affected by any Imperial enactments or State Acts from time to time in force in New South Wales, these Acts have remained in force and shall be in force in the State. It was not suggested that Art 9 of the Bill of Rights had been affected by any Imperial or State Act.

[23] Applying the Bill of Rights in New South Wales presents some textual problems, if only because it is a statute that, when enacted, was directed to the English courts and Parliament. Yet the evident intention behind the provisions of the Imperial Acts Application Act that have been mentioned is that the constitutional norms prescribed by the Bill of Rights should apply in New South Wales. In particular, so far as presently relevant, the evident intention was that there should be some limits upon the extent to which events happening in the New South Wales legislature may be considered in the courts. It may very well be that effect is to be given to that intention simply by reading the references in Art 9 to "court" and "parliament" as references to the courts and Parliament of the State. But not all other provisions of the Bill of Rights or other preserved Imperial Acts may admit of so ready a solution to the problems of how they are to be applied and it may be that more radical solutions may be required in such cases ^[20] . These are questions that need not be addressed in this case.

[24] However, it may be observed that in South Australia and Western Australia, where the Australian Courts Act never applied, "it appears simply to have been regarded as axiomatic from the beginnings of European occupation that a statute such as the Bill of Rights would apply under the common law principles on the reception of law in settled colonies" ^[21] . Further, in The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd ^[22] , Isaacs J referred to discussion of the Bill of Rights as being but declaratory of "the ancient law of England" and, in an appeal from New South Wales heard before the enactment of the Imperial Acts Application Act, Dixon CJ treated the Bill of Rights as embodying "general constitutional principle[s]" ^[23] .

[25] What, then, is the role of the courts in a dispute like this? The appellant's action is for trespass to the person. The respondents plead justification of their admitted acts: that justification being the suspension of the appellant from the service of the House. The "question at the root of the case" ^[24] is whether the House has the power to do so for non-compliance with resolutions that the appellant table certain State papers. There are numerous examples of similar disputes to be found in decided cases. For example, in Willis and Christie v Perry ^[25] , the respondent, a member of the New South Wales Legislative Assembly, brought an action against the Speaker and the Serjeant-at-Arms for assault and false imprisonment. There was judgment for the respondent on his demurrer to a plea by the defendants. The unsuccessful plea had been to the effect that the Speaker had authority to cause a member, who had been disorderly in the chamber and who had left it in a disorderly manner, to be arrested outside the chamber and brought back into it.

[26] Two propositions are clear. First, the present action having been brought, it must be decided ^[26] . And secondly, the plea of justification is not conclusive, notwithstanding that it is an alleged justification founded in what was resolved by the Legislative Council ^[27] .

[27] There are, nevertheless, some limits to the extent to which the courts will examine what occurred in the House. For present purposes the relevant limit is that identified in R v Richards; Ex parte Fitzpatrick and Browne where Dixon CJ, speaking for the whole Court, said that ^[28] :

"it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise".

Although this was said in a case arising from action taken by one of the Houses of the Commonwealth Parliament, it has equal application to the present case. The corollary is, to adopt what McLachlin J said with respect to the privileges of the Nova Scotia House of Assembly, that for the courts to examine the content of particular exercises of valid privilege "would trump the exclusive jurisdiction of the legislative body" and that intervention by the courts is only "at the initial jurisdictional level" ^[29] .

[28] S49 of the Commonwealth Constitution provides that, until declared by the Parliament, "[t]he powers, privileges, and immunities of the Senate and of the House of Representatives ... shall be those of the Commons House of Parliament of the United Kingdom ... at the establishment of the Commonwealth". At the time of Fitzpatrick and Browne those powers, privileges and immunities included the principles declared by Art 9 of the Bill of Rights ^[30] .

[29] The Constitution Act contains no equivalent of s49 of the Commonwealth Constitution. The New South Wales Parliament, unlike some other colonial or State legislatures ^[31] , has never enacted general legislation seeking to identify its powers, privileges and immunities with those of the House of Commons in the United Kingdom. Its powers and privileges, so far as presently relevant, are therefore to be found otherwise than by reference to statute ^[32] .

The powers and privileges of the Legislative Council

[30] What are the powers and privileges of the Legislative Council of New South Wales? In particular, may the Legislative Council suspend one of its members (for a limited time) for failing to produce State papers that the House has sought?

[31] Since Kielley v Carson ^[33] (which concerned the powers of the House of Assembly of Newfoundland) discussion of the powers and privileges of what were then colonial legislatures has been cast in terms of whether the power in question is "necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute" ^[34] . (The test is sometimes described as a test of "reasonable necessity" ^[35] but nothing turns in this case on which is the better description.)

[32] The approach described above has been applied in cases concerning the New South Wales legislature. In Barton v Taylor ^[36] the Privy Council considered an appeal from a demurrer in an action for trespass arising from the forcible removal of a member from the Legislative Assembly of New South Wales. The Judicial Committee applied the principles described in Kielley v Carson and Doyle v Falconer, namely, that no powers to protect itself against obstruction, interruption or disturbance of its proceedings by the misconduct of any of its members in the course of those proceedings "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'" ^[37] . The Privy Council held in Barton v Taylor that the power of suspending a member guilty of obstruction or disorderly conduct during the continuance of a current sitting was reasonably necessary for the proper exercise of the functions of the Legislative Assembly. Like principles were then applied by this Court in Willis and Christie v Perry ^[38] , a case which also concerned the Legislative Assembly of New South Wales.

[33] It was submitted that other considerations should be taken into account since federation and since the passing of the Australia Act 1986 (Cth) ("the Australia Act"). In particular, it was contended that the Commonwealth Constitution's reference to and conferral of functions upon the Parliaments of a State or its Houses ^[39] and its continuation of the Constitution of each State of the Commonwealth ^[40] may affect the powers or privileges of the Houses of the State Parliaments. And it was further contended that account may have to be taken of the Australia Act, including its references to the legislative and other powers of the State Parliaments ^[41] and its termination of responsibility of the United Kingdom government in relation to State matters ^[42] .

[34] It is not necessary to consider in this case whether these submissions are right. It was not suggested that to take account of the Commonwealth Constitution or the Australia Act would lead to any diminution in the powers and privileges of the State Parliaments when those powers and privileges are identified according to what hitherto have been accepted principles. It is sufficient, therefore, for the purposes of this case, to apply the tests that have been applied in earlier authority.

The functions of the Legislative Council

[35] In identifying the functions of the Legislative Council of New South Wales and what is "necessary" to the "proper exercise" of those functions, it is, again, desirable to make some reference to history.

[36] As Gleeson CJ said in his reasons for judgment in the Court of Appeal ^[43] :

"At the present time New South Wales has a responsible and representative system of government, with a legislature comprising the Queen, the Legislative Council, and the Legislative Assembly. The members of both Houses are popularly elected, although the methods of election, and terms of office of the members, are different."

However, his Honour went on to point out that many aspects of responsible government, as it presently exists in the State, are not identified in the Constitution Act and depend upon what has come to be fixed by convention. The Chief Justice said ^[44] :

"The Constitution Act makes no reference to Cabinet. It does not refer to the conventional requirement that ministers be chosen from amongst the members of one or other of the Houses of Parliament. It does not reflect the conventional requirement that the Governor may only appoint as Premier a person who commands the confidence of the Legislative Assembly, or that the ministry must have the confidence of that House. No reference of any kind is made to the party system, which is of such importance at the level of political practice."

[37] It was the Constitution Act 1855 (Imp) ^[45] ("the 1855 Imperial Act") that first provided for a bicameral legislature for New South Wales. Under that Act, the members of the Legislative Council were nominated, for life, by the Governor. (Members of the Legislative Council have been elected in New South Wales only since 1933, first by the two chambers of the legislature and later by popular election ^[46] .) Opinions differ about whether the changes made by the 1855 Imperial Act to the institutions of government in New South Wales were designed to bring any particular form of responsible (as well as representative) government to what was then the Colony of New South Wales ^[47] .

[38] The contemporary operation of a system of responsible government reflects the significant role of modern political parties, one of which, or a coalition of which, in the ordinary course "controls" the legislative chamber or, in a bicameral system, at least the lower House ^[48] . Modern political parties did not exist in New South Wales when the bicameral legislature was first established under the 1855 Imperial Act. Indeed, until the end of the last century, no Australian colony had a developed system of political parties ^[49] .

[39] The Imperial legislation of the mid-nineteenth century by which bicameral legislatures were established in New South Wales and Victoria contained no express declaration of the establishment of the system of responsible government ^[50] . Despite the use of the short title "Constitution Act", there was no single instrument in which there was to be found what might be called the constitution of the colony or later of the State ^[51] . Further, in some colonies, for example Victoria, provisions required that only a certain number of the officers of the government need be members of the legislature ^[52] .

[40] In New South Wales, provisions were made in the 1855 Imperial Act with respect to money Bills and the parliamentary appropriation of the Consolidated Fund ^[53] . Further, s37 ^[54] of the 1855 Imperial Act included a provision to replace the system whereby the appointment of officers in the public service of the colony had been made in England with a system conferring on the new colonial government power to make such appointments ^[55] . Provision to corresponding effect is presently made by s47 of the Constitution Act. Both sections excepted from their scope the appointments of officers "liable to retire from office on political grounds". The officers mentioned in such an exception were said by Higinbotham CJ to be "clearly responsible officers or Ministers"; and the upshot was to give, "though indirectly", what was an "adequate expression" to an intention that "the principle of responsible government should be established by law" ^[56] .

[41] It should not be assumed that the characteristics of a system of responsible government are fixed or that the principles of ministerial responsibility which developed in New South Wales after 1855 necessarily reflected closely those from time to time accepted at Westminster ^[57] . Moreover, what are now federal and State co-operative legislative schemes involve the enactment of legislation by one Parliament which is administered and enforced by Ministers and officials at another level of government, not responsible to the enacting legislature ^[58] .

[42] A system of responsible government traditionally has been considered to encompass "the means by which Parliament brings the Executive to account" so that "the Executive's primary responsibility in its prosecution of government is owed to Parliament" ^[59] . The point was made by Mill, writing in 1861, who spoke of the task of the legislature "to watch and control the government: to throw the light of publicity on its acts" ^[60] . It has been said of the contemporary position in Australia that, whilst "the primary role of Parliament is to pass laws, it also has important functions to question and criticise government on behalf of the people" and that "to secure accountability of government activity is the very essence of

responsible government" ^[61] . In Lange v Australian Broadcasting Corporation ^[62] , reference was made to those provisions of the Commonwealth Constitution which prescribe the system of responsible government as necessarily implying "a limitation on legislative and executive power to deny the electors and their representatives information concerning the conduct of the executive branch of government throughout the life of a federal Parliament". The Court added ^[63] :

"Moreover, the conduct of the executive branch is not confined to Ministers and the public service. It includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature."

In Australia, s75(v) of the Constitution and judicial review of administrative action under federal and State law, together with freedom of information legislation, supplement the operation of responsible government in this respect.

[43] In the United Kingdom, the responsibility or accountability of individual Ministers recently was identified in a publication by the Cabinet Office as a guide to Ministers as including ^[64] :

"Each Minister is responsible to Parliament for the conduct of his or her Department, and for the actions carried out by the Department in pursuit of Government policies or in the discharge of responsibilities laid upon him or her as a Minister. Ministers are accountable to Parliament, in the sense that they have a duty to explain in Parliament the exercise of their powers and duties and to give an account to Parliament of what is done by them in their capacity as Ministers or by their Departments."

On the other hand, the Court recently affirmed that the confidentiality of Cabinet deliberations reflects the principle of collective responsibility which "remains an important element in our system of government" ^[65] .

[44] The litigation in Fenton v Hampton ^[66] , which concerned the powers of the Legislative Council of Van Diemen's Land before the establishment of a bicameral legislature for Tasmania ^[67] , had a significance beyond the immediate decision that such colonial legislatures had no inherent power to punish for contempt. The respondent had been Comptroller-General of Convicts and had been summoned to appear as a witness before a Select Committee of the Legislative Council which was inquiring into certain aspects of the convict system. The decision of the Privy Council proceeded on the undisputed footing that the Legislative Council had had the power to make the inquiry out of which the proceedings arose ^[68] . It may be taken that the New South Wales Legislative Council, as established under the 1855 Imperial Act, was in no lesser position. Moreover, the position of the Legislative Council has been enhanced since that time by its change to an elective body and by the arrival of the universal franchise.

[45] One aspect of responsible government is that Ministers may be members of either House of a bicameral legislature and liable to the scrutiny of that chamber in respect of the conduct of the executive branch of government. Another aspect of responsible government, perhaps the best known, is that the ministry must command the support of the lower House of a bicameral legislature upon confidence motions. The circumstance that Ministers are not members of a chamber in which the fate of administration is determined in this way does not have the consequence that the first aspect of responsible government mentioned above does not apply to them. Nor is it a determinative consideration that the political party or parties, from members of which the administration has been formed, "controls" the lower but not the upper chamber. Rather, there may be much to be said for the view that it is such a state of affairs which assists the attainment of the object of responsible government of which Mill spoke in 1861.

Conclusions

[46] The arrangements made for New South Wales for the period following 1855 provided the elements of what now should be identified as a system of responsible government. There was an assumption of a measure of examination of the executive by the legislature as well as legislative control over taxation and appropriation of money. The consideration that the government of the day must retain the confidence of the lower House and that it is there that governments are made and unmade does not deny what follows from the assumption in 1856 by the Legislative Council of a measure of superintendence of the conduct of the executive government by the production to it of State papers.

[47] It is not necessary to consider for the purposes of this appeal the limits involved in that superintendence. What is presently significant is the immediate interrelation between that superintendence and the law-making function in which the Legislative Council participates, together with the Legislative Assembly and the Crown.

[48] The principle derived from the authorities and not challenged on this appeal is that the Legislative Council has such powers, privileges and immunities as are reasonably necessary for the proper exercise of its functions. As Priestley JA emphasised in the Court of Appeal ^[69] , to decide whether a particular power, here the power of suspension of a member for a limited time from the service of the House, is reasonably necessary for the Legislative Council to perform any constitutional function, it is necessary first to identify that function.

[49] The primary function of the Legislative Council is indicated by s5 of the Constitution Act. This is the exercise by the Legislative Council, as an element of the legislature, of its power, subject to the provisions of the Commonwealth Constitution, to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever. As has been pointed out, subject to restrictions with respect to money Bills, a Bill may originate in the Legislative Council. Further, the Legislative Council has, in general, equal power of disallowance of delegated legislation ^[70] .

[50] In addition, the long practice since 1856 with respect to the production to the Council of State papers, together with the provision in Standing Order 29 for the putting to Ministers of questions relating to public affairs and the convention and parliamentary practice with respect to the representation in the Legislative Council by a Minister in respect of portfolios held by members in the Legislative Assembly, are significant. What is "reasonably necessary" at any time for the "proper exercise" of the "functions" of the Legislative Council is to be understood by reference to what, at the time in question, have come to be conventional practices established and maintained by the Legislative Council.

[51] Such a position might be varied or abrogated by legislation. There has been no such legislation which is relevant to the present issue. In that regard, it will be noted that in respect of disagreements between the two chambers, s5B of the Constitution Act provides a special mechanism which may lead to the submission of the measure to the electors.

[52] In the Court of Appeal, Priestley JA pointed to the broad reach of the legislative power conferred by s5 as indicating an imperative need for each chamber to have access to material which may be of help to it in considering not only the making of changes to existing laws or the enactment of new laws but, as an anterior matter, to the manner of operation of existing laws ^[71] . That anterior matter, as his Honour said, "clearly embraces the way in which the Executive Government is executing the laws" ^[72] .

[53] Questions of privilege may arise in relation to the production of documents. No such question arises here. Reduced to its essentials, what happened in the present case involved the determination by the Legislative Council to seek the provision to it by a member, who is a Minister and who "represented" another Minister in the Legislative Assembly, of State papers which, as Gleeson CJ described them, related "to matters of government business which the Council wished to debate" ^[73] . The appellant had in his custody and control certain documents which fell within the description of those sought in the relevant resolution. The Minister chose not to produce the papers, claiming, consistently with the position taken by the Cabinet, that the Legislative Council had no power to call for them. He was then suspended for the balance of the day's sitting.

[54] If a member will not produce documents sought by the House there may be some limits to the steps it may take in response. In Barton v Taylor the Privy Council said ^[74] :

"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. The facts pleaded in this case do not raise the question whether that would be ultra vires or not. If these are the limits of the inherent or implied power, reasonably deducible from the principle of general necessity, they have the advantage of drawing a simple practical line between defensive and punitive action on the part of the Assembly. A power of unconditional suspension, for an indefinite time, or for a definite time depending only on the irresponsible discretion of the Assembly itself, is more than the necessity of self-defence seems to require, and is dangerously liable, in possible cases, to excess or abuse."

It is not necessary to say whether this is an accurate or exhaustive statement of the limits of the powers of the House. But one of the steps that the House may undoubtedly take is to resolve that the member be suspended for a limited time from the service of the House, and that is what happened here.

[55] It was submitted that the House may not punish the member concerned but may coerce or induce compliance with its wish. To distinguish between punishing and merely inducing compliance may very well be difficult. Further, to state the distinction in these terms may distract attention from more important considerations of identifying what is the power that has been exercised and whether, or to what extent, the courts may review what has been done in Parliament. But on no view of the authorities did the action taken in passing and implementing para2 and para3(a) of the resolution go beyond the boundary of what is permissible. That being so, the appeal should be dismissed. We observed earlier in these reasons that we do not enter upon any question respecting para3(b).

[56] It is important to emphasise that no question arises in this case about what powers a House of the New South Wales Parliament may have to deal with persons who are not members of the House concerned. Altogether different considerations might arise in such a case. Nor does any question arise about what, if any, consequences might follow from the fact that some claim to privilege from production is made but rejected. Although these matters were canvassed in argument, it is not necessary to decide them.