Michael Egan v Max Willis and Anor
195 CLR 424[1998] HCA 71
(Judgment by: Callinan J)
Egan v
Willis
Judges:
Gaudron, Gummow and Hayne
McHugh
Kirby
Callinan JStarke, J
Judgment date: 19 November 1998
Judgment by:
Callinan J
[165] This is an appeal from a judgment of the Court of Appeal of New South Wales constituted by Gleeson CJ, Mahoney P and Priestley JA concerning the powers of the Legislative Council of New South Wales.
[166] Towards the end of the hearing in this Court on 16 June 1998, the parties' attention was drawn to the possibility that issues notifiable to the State and Commonwealth Attorneys-General under s78B of the Judiciary Act 1903 (Cth) may have been latent in the arguments addressed to the courts. Notices were then given and the matter was listed for further hearing on those issues.
[167] The issues raised by the notices are as follows:
Whether either the text or structure of either the Commonwealth Constitution or the Australia Acts 1986, in so far as that Constitution or those Acts are relevant to the State of New South Wales:
- (a)
- renders no longer supportable the reasoning in Barton v Taylor [306] , and Willis and Christie v Perry [307] ; or
- (b)
- either gives rise or is relevant to:
- (i)
- a power in the New South Wales Legislative Council to require the appellant to produce to it the documents required by its resolutions dated 23 April 1996 and 1 May 1996; or
- (ii)
- the justiciability of disputed questions arising in relation to any purported exercise by the Council of such power.
[168] I leave aside these questions until later.
[169] For some time the Legislative Council had been seeking the production of some State documents relating to a consent to mine gold at Lake Cowal, near West Wyalong and some other matters which the Council wished to debate. The appellant, the Treasurer of the State, a member of the Executive Council and a member of the Legislative Council was directed by a resolution of the Legislative Council of 1 May 1996 to deliver the documents to the Clerk of the House on the following day.
[170] The appellant refused to produce the documents. In view of the refusal, the Legislative Council adjudged the appellant guilty of contempt, resolved to suspend him and ordered that he be escorted from the precincts of the Parliament. The appellant, unavailingly, protested against the resolution of the House and was removed beyond its precincts.
The Proceedings in the Court of Appeal
[171] The appellant claimed, in the Administrative Law Division of the Supreme Court, declarations that the President of the Legislative Council and the officer acting pursuant to the resolution, the Usher of the Black Rod, committed an unlawful trespass to the person of the appellant, and that the resolution to the extent that it applied to the appellant was invalid. By consent of the parties an order for the removal of the case to the Court of Appeal was made by Dunford J. In short, both parties sought the intervention of the courts for the resolution of their differences and the courts were accordingly bound to resolve the controversy between them [308] .
[172] The Court of Appeal held that the Legislative Council has such implied or inherent powers as are reasonably necessary for its existence and for the proper exercise of its functions: that a power to order the production of the relevant State Papers was such a power, as was the power to suspend the appellant when he declined to do so in order to attempt to coerce him into producing the papers [309] . The Court of Appeal found that the extent of the removal of the appellant, because he was removed not merely from the Legislative Council chamber, but also from the land occupied by the New South Wales Parliament, was excessive, and not warranted by the Standing Orders of the Legislative Council. There is no appeal against the finding of unlawfulness in favour of the appellant of the respondents' conduct outside the House (the Footpath Point).
[173] The Standing Orders of the Legislative Council contain the following provisions:
"18. Any papers may be ordered to be laid before the House and the Clerk shall communicate to the Premier's Department any such order.
19. The production of Papers concerning the Royal Prerogative, or of Despatches or other correspondence addressed to or emanating from His Excellency the Governor, or having reference to the Administration of Justice, shall be asked for only by Address to the Governor."
[174] With respect to these, Gleeson CJ in the Court of Appeal said, that they assume the existence of a power, but do not operate as a source of power; rather they regulate in certain respects the exercise of a power, which, if it exists, must have some other source [310] . This proposition was not challenged by the appellant in this Court, on the assumption, as I understand it, that the only possible source of power for a Standing Order of substantive operation is s15(1)(a) of the Constitution Act 1902 (NSW) [311] which authorises orders for the orderly conduct of Council business, but does not authorise the making of Standing Orders to require production of documents, and measures to secure production on any failure in that regard.
The Appeal to this Court
[175] There was only one ground of appeal to this Court:
1. The Court erred in holding that the Legislative Council had an implied power to order the laying of documents on the table by the appellant, which order was enforceable by the imposition of the sanction of suspension on the appellant.
[176] Some preliminary observations may be made.
[177] There is no express conferral of any of the asserted powers upon the Legislative Council by the Constitution Act 1902 (NSW).
[178] It is clear however from the scheme of that Act that legislation may be initiated in the Legislative Council which is, in name and by definition, one of the constituent parts of the Legislature of the State.
[179] Neither in the Court of Appeal nor here were questions of justiciability debated. Accordingly Gleeson CJ in the Court of Appeal was able to define the relevant questions in this way [312] :
"As the High Court observed in R v Richards; Ex parte Fitzpatrick and Browne [313] , after a long period of controversy in England, it was established that disputes as to the existence of a power, privilege or immunity of a House of Parliament are justiciable in a court of law. The same principle applies in Australia. However, whilst it is for the courts to judge the existence in a House of Parliament of a privilege, if a privilege exists it is for the House to determine the occasion and the manner of its exercise. Hence the argument before us has been directed towards questions of power rather than factual issues going to the appropriateness of the exercise of such power, if it existed. On that common understanding, it was unnecessary to debate questions of justiciability which might otherwise have arisen."
[180] Unlike some other Parliaments, including the Federal Parliament, [314] there is no legislation in New South Wales which expressly confers powers, privileges and immunities upon the New South Wales Parliament, although numerous futile legislative attempts have been made to do so [315] . S6 of the Imperial Acts Application Act 1969 (NSW) does however apply the Bill of Rights to the State Houses of New South Wales but that legislation has nothing to say about the powers of the Houses with respect to the production of documents and any coercive measures which might be adopted in default of their production. Nonetheless it serves (with necessary adaptations to accommodate differences between the Houses of Westminster and of a State legislature) as a clear indication that the proceedings of the Houses in New South Wales should not in general be subject to check or questioning in the Courts.
[181] The two principal submissions of the appellant are that the Legislative Council does not possess any implied powers of any kind: alternatively, if the Council does have implied power, it is only to do what is reasonably necessary for the proper exercise of its powers and functions as an Upper House of Parliament (with a limited role with respect to money bills) [316] and, the conduct complained of here was not reasonably necessary for that purpose.
[182] In some respects the New South Wales Constitution Act of 1902 is more explicit than the Constitutional legislation of other States [317] . But there are still usages, practices and conventions according to which the Houses and Ministers are accustomed to act that are not the subject of legislation in New South Wales; for example, the appointment of Ministers from the ranks of parliamentarians. However that is not to the point in determining whether an express power is necessary to compel the production of documents and to empower the Houses to adopt measures to coerce compliance in default of production.
[183] The possibility that there may be no right to have reviewed by a court what is in truth a sanction or punishment rather than a merely coercive measure imposed by a House of Parliament upon one of its members, especially a Minister, is not the only matter of concern, and therefore one which might perhaps legitimately bear upon the resolution of the issues in a case such as this, where there is no express legislative foundation for the power asserted by the Legislative Council, and implications would be necessary to found the exercise of such a power. Another matter of concern is that Ministers (and officials) need to be free to express themselves with a high degree of candour in Cabinet discussions and papers, a candour which might well be inhibited and therefore compromised, if a Minister may be compelled to produce papers proposing measures for consideration by the Cabinet and views tentatively expressed, and perhaps altered, after the ebb and flow of Cabinet discourse. As Sir Ivor Jennings wrote in Cabinet Government [318] regarding the basis for the confidentiality of Cabinet materials:
"The Cabinet deliberates in secret; its proceedings are confidential. The Privy Councillor's oath imposes an obligation not to disclose information; and the Official Secrets Acts forbid the publication of Cabinet as well as other official documents. But the effective sanction is neither of these. The rule is, primarily, one of practice. Its theoretical basis is that a Cabinet decision is advice to the Queen, whose consent is necessary to its publication. Its practical foundation is the necessity of securing free discussion by which a compromise can be reached, without the risk of publicity for every statement made and every point given away."
[184] Because of the view which I have formed of this case, whether, and the extent to which claims for a form of public interest immunity or privilege might be sustained in the Houses of Parliament of New South Wales are questions which it is unnecessary to answer. Other matters which were also touched upon in argument similarly do not need resolution in this appeal: whether Armstrong v Budd [319] was correctly decided; whether there is a relevant distinction and what it is, between "defensive" actions by a House of Parliament and punitive ones [320] ; whether, notwithstanding anything that was said in R v Richards; Ex parte Fitzpatrick and Browne, [321] a House should be absolutely entitled to suspend for a lengthy period, or expel a member, rather than, as here, merely suspend him for a brief period [322] ; and, the extent to which a House possesses powers of compulsion with respect to private citizens, their affairs, and their documents.
[185] It is obvious, I think, that the Legislative Council as a popularly elected House of Parliament and part of the legislature of the State may on occasions need to see certain documents in order to carry out its legislative and other roles effectively.
[186] It might be suggested that the remedy for difficulties experienced by the Legislative Council arising from any failure or refusal to produce documents lies in the Council's own hands, the rejection of such legislation as the Legislative Council is entitled to reject until the documents are produced [323] . However, the opportunity to avail itself of that remedy will often not be practically available, and, in any event may be far too harsh, or inappropriate in the case of unrelated legislation or legislation which should for other reasons be passed. Such a remedy may therefore have to be regarded as too imperfect, or inappropriate, to resolve difficulties associated with the withholding of relevant documents.
[187] Another matter to which the appellant referred was the language of the Parliamentary Evidence Act of 1881 (NSW) (consolidated as the Parliamentary Evidence Act 1901 (NSW)). With respect to it, the appellant made two points: first, that if implied powers to obtain information already existed, there was no need for its enactment; secondly, the express reference to oral materials and absence of reference to State papers and the like, indeed documentary materials generally, meant that it was never intended that the Council have power to compel their production.
[188] The first point is answered by the terms of the Parliamentary Evidence Act itself which show that it was intended to provide a proper procedure for the attendance and examination of witnesses [324] . The second point cannot, in my opinion, give rise to an implication that it was deliberately intended by the legislature at the time of the enactment that Ministers and Members of a House should enjoy a particular immunity from production of documents. The Parliamentary Evidence Act simply does not in any relevant sense purport to deal with that topic.
[189] On any view the Legislative Council must be armed with a power to do what is reasonably necessary for the proper exercise of its functions. This is the language of Lord Selborne in Barton v Taylor [325] :
"The power, therefore, of suspending a member guilty of obstruction or disorderly conduct during the continuance of any current sitting, is, in their Lordships' judgment, reasonably necessary for the proper exercise of the functions of any Legislative Assembly of this kind ... ."
[190] The only question which has to be answered in this case is therefore, whether what was done by the House was reasonably necessary for its functions.
[191] The amplitude of s5 of the Constitution Act 1902 (NSW) and the reference in that section to the making of laws for the peace, welfare and good government of New South Wales lend support to the view that the powers and functions of the Legislative Council as a constituent part of the legislature of New South Wales should enable the Council to go as far as it did in this case. So too, s38A expressly refers to "debate or discussion" on a bill [326] . A power (or function) to explore matters which could bear upon legislation is a power that the Legislative Council needs to possess in order to carry out its function as part of the legislature. As Mahoney P in the New South Wales Court of Appeal in this case pointed out [327] :
" 'Necessary' has, in the law, been used frequently to denote those things which are clearly adapted to the needs or the purposes of the body or function in question [328] ."
[192] And, as his Honour subsequently said [329] :
"... it would be extraordinary if, having a matter before it for consideration, it could not do what was necessary to inform itself about it. It is accordingly within its power to obtain such information in various ways. Thus, it may cause a study to be made of matters which are before it to be dealt with. It may do this by Committees, by consultants and by the provision of information by members ... ."
[193] In arguing that the Legislative Council's powers are confined to protective and self-defensive ones and that the power exercised here went beyond those and was punitive the appellant relied on a passage in Barton v Taylor [330] in the Privy Council:
"Whatever, in a reasonable sense, is necessary for these purposes, is impliedly granted whenever any such legislative body is established by competent authority. For these purposes, protective and self-defensive powers only, and not punitive, are necessary."
[194] The short period of suspension here and the measures taken by the respondents to remove the appellant from the House do not in my view amount to punitive measures. To suspend for a relatively brief period a member elected by popular vote may be one matter: to suspend him for a long period or to expel him, and to declare that member's seat vacant may perhaps be different matters altogether. The measures adopted here were, in my opinion, protective in the sense that their adoption did no more than attempt to effectuate the function of the Legislative Council to inquire of a member into matters relevant to the exercise of its legislative powers and the good government of New South Wales. They were reasonably necessary for the carrying out of that function.
[195] I would hold therefore, subject to what arises out of the arguments on the notice given under s78B of the Judiciary Act, that what was done here (save what occurred on the footpath) was reasonably necessary for the exercise by the Legislative Council of its powers (or functions) as part of the legislature of New South Wales, and was self-defensive of the Council, or merely a not inappropriate coercive measure.
[196] I turn now to the questions raised by the Notice. In my opinion neither the Commonwealth Constitution nor the Australia Acts affect the conclusion that I have reached. There was reference in argument to Kable v Director of Public Prosecutions (NSW) [331] . What this Court held there, that the State courts are part of a national, hierarchical scheme in which the State courts play an integral part has nothing to say about a House of a State Parliament exercising the power of suspension (relatively brief) of a member, of the kind which occurred here. Accordingly the opinion which I have formed in this case is unaffected by the matters raised by the Notices.
[197] I would dismiss the appeal with costs.
(1996) 40 NSWLR 650.
For example, on an application for habeas corpus as in R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157; 92 CLR 171 (PC).
Croome v Tasmania (1997) 191 CLR 119 at 132-133; Mutasa v Attorney-General [1980] QB 114 at 123.
Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 72 ALJR 1270 at 1275-1276, 1289-1291, 1291; 155 ALR 684 at 690-691, 708-712, 712.
(1996) 40 NSWLR 650 at 681, 693.
(1996) 40 NSWLR 650 at 671.
S22 of the Constitution Act provides that all questions arising in the Legislative Council shall be decided by a majority of the votes of the members present other than the presiding member and that, when the votes are equal, the presiding member shall have a casting vote.
Some legislation, for example s14A(6) of the Constitution Act, provides that a statutory rule does not cease to have effect upon its disallowance by one House of the Parliament unless it previously has been disallowed by the other House.
S21(1) of the Interpretation Act 1987 (NSW) ("the Interpretation Act") defines "statutory rule" as meaning:"(a) a regulation, by-law, rule or ordinance:
- (i)
- that is made by the Governor, or
- (ii)
- that is made by a person or body other than the Governor, but is required by law to be approved or confirmed by the Governor, or
(1996) 40 NSWLR 650 at 654.
(1996) 40 NSWLR 650 at 654-655.
(1996) 40 NSWLR 650 at 655.
(1996) 40 NSWLR 650 at 654.
(1996) 40 NSWLR 650 at 655.
1 Wm & Mary Sess 2 c 2.
16 Cha I c 10, s6.
31 Cha II c 2, s1-s8, part of s11 and s15-s19.
56 Geo III c 100.
9 Geo IV c 83.
See, for example, Landis, "Statutes and the Sources of Law", Harvard Legal Essays, (1934) at 213.
Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 467.
(1922) 31 CLR 421 at 463, citing May, Parliamentary Practice, 10th ed at 4.
Cam and Sons Pty Ltd v Ramsay (1960) 104 CLR 247 at 258. See also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-566; Dixon, "The Common Law as an Ultimate Constitutional Foundation", (1957) 31 Australian Law Journal 240 at 242-243.
The phrase used by Griffith CJ in Willis and Christie v Perry (1912) 13 CLR 592 at 597.
(1912) 13 CLR 592.
Stockdale v Hansard (1839) 9 Ad & E 1 [112 ER 1112].
Stockdale v Hansard (1839) 9 Ad & E 1 [112 ER 1112]; Kielley v Carson (1842) 4 Moo PC 63 [13 ER 225]; Barton v Taylor (1886) 11 App Cas 197; Toohey v Melville (1892) 13 LR (NSW) 132; Willis and Christie v Perry (1912) 13 CLR 592.
(1955) 92 CLR 157 at 162.
New Brunswick Broadcasting Co v Nova Scotia [1993] 1 SCR 319 at 384.
The Parliamentary Privileges Act 1989 (Cth) enacted after R v Richards; Ex parte Fitzpatrick and Browne may be put to one side for present purposes.
See, for example, "An Act for defining the Privileges Immunities and Powers of the Legislative Council and Legislative Assembly of Victoria respectively" (20 Vict No 1) passed by the Parliament of Victoria in 1857. See, now, as to the privileges of State legislatures other than New South Wales, Constitution Act 1975 (Vic), s19; Constitution Act 1934 (SA), s38; Constitution Act 1867 (Q), s40A; Parliamentary Privileges Act 1891 (WA); Parliamentary Privilege Act 1858 (Tas).
The Parliamentary Evidence Act 1881 (NSW) and the Parliamentary Evidence Act 1901 (NSW) are not relevant to this matter and may be put aside.
(1842) 4 Moo PC 63 [13 ER 225].
Kielley v Carson (1842) 4 Moo PC 63 at 88 per Parke B [13 ER 225 at 234]; Fenton v Hampton (1858) 11 Moo PC 347 [14 ER 727] (concerning the Legislative Council of Van Diemen's Land); Doyle v Falconer (1866) LR 1 PC 328 (concerning the House of Assembly of Dominica).
Barton v Taylor (1886) 11 App Cas 197 at 203; Willis and Christie v Perry (1912) 13 CLR 592 at 597 per Griffith CJ.
(1886) 11 App Cas 197.
(1886) 11 App Cas 197 at 203; citing Kielley v Carson (1842) 4 Moo PC 63 at 88 [13 ER 225 at 234].
(1912) 13 CLR 592.
See, for example, s9, s15.
s106.
See, for example, s2, s3, s4.
s10.
(1996) 40 NSWLR 650 at 659.
(1996) 40 NSWLR 650 at 660.
Being Sched 1 to the Imperial Act, 18 & 19 Vict c 54.
See Constitution Amendment (Legislative Council) Act 1933 (NSW); Constitution and Parliamentary Electorates and Elections (Amendment) Act 1978 (NSW).
cf Jenks, A History of the Australasian Colonies, (1896), Ch XI; Jenks, The Government of Victoria, (1891), Ch XXII; Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901), Historical Introduction, PtIII; Ward, Colonial Self-Government, (1976), Ch 9; Ward, "The Responsible Government Question in Victoria, South Australia and Tasmania, 1851-1856", (1978) 63 Journal of the Royal Australian Historical Society 221.
Australia, Final Report of the Constitutional Commission, (1988), vol 1 at 97, para2.233-para2.234; Kinley, "The Duty to Govern and the Pursuit of Accountable Government in Australia and the United Kingdom", (1995) 21 Monash University Law Review 116 at 124-126; Lipton, "Responsible Government, Representative Democracy and the Senate: Options for Reform", (1997) 19 University of Queensland Law Journal 194 at 195-196.
Finn, "Myths of Australian Public Administration" in Power (ed), Public Administration in Australia: A Watershed, (1990), 41 at 43.
Toy v Musgrove (1888) 14 VLR 349 at 392, 428; rev on other grounds [1891] AC 272.
See The Commonwealth v Limerick Steamship Co Ltd and Kidman (1924) 35 CLR 69 at 101-102. See also New Brunswick Broadcasting Co v Nova Scotia [1993] 1 SCR 319 at 375-377.
S18 of the Act to establish a Constitution in and for the Colony of Victoria, being Sched 1 to the Imperial Act, 18 & 19 Vict c 55.
s47, s53-s55. S45 of the Constitution Act now provides: "The Consolidated Fund shall be subject to be appropriated to such specific purposes as may be prescribed by any Act in that behalf", and s46 requires money Bills to be recommended by a message from the Governor to the Legislative Assembly save in respect of Bills introduced by, or a vote or resolution proposed by, a Minister of the Crown.
S37 stated:"The Appointment to all Public Offices under the Government of the Colony hereafter to become vacant or to be created, whether such Offices be salaried or not, shall be vested in the Governor, with the Advice of the Executive Council, with the Exception of the Appointments of the Officers liable to retire from Office on political Grounds as herein-after mentioned, which Appointments shall be vested in the Governor alone: Provided always, that this Enactment shall not extend to minor Appointments, which by Act of the Legislature, or by Order of the Governor and Executive Council, may be vested in Heads of Departments, or other Officers or Persons within the Colony."
Ex parte Duggan (1883) 4 NSWR(L) 332 at 334. See also Evans v Donaldson (1909) 9 CLR 140 at 148, 157-158.
Toy v Musgrove (1888) 14 VLR 349 at 392-393. Quick and Garran agreed with the position taken by Higinbotham CJ in this case: The Annotated Constitution of the Australian Commonwealth, (1901) at 44-47.
Finn, "Myths of Australian Public Administration" in Power (ed), Public Administration in Australia: A Watershed, (1990), 41; Finn, Law and Government in Colonial Australia, (1987) at 11-13, 86-91, 160-165; Uhr, Deliberative Democracy in Australia, (1998) at 194-196.
See Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 126-131; Lindell, "Responsible Government" in Finn (ed), Essays on Law and Government, (1995), vol 1, 75 at 112-113.
Kinley, "Governmental Accountability in Australia and the United Kingdom: A Conceptual Analysis of the Role of Non-Parliamentary Institutions and Devices", (1995) 18 University of New South Wales Law Journal 409 at 411.
Mill, Considerations on Representative Government, (1861) at 104.
Queensland, Electoral and Administrative Review Commission, Report on Review of Parliamentary Committees, (October 1992), vol 1, para2.23.
(1997) 189 CLR 520 at 561.
(1997) 189 CLR 520 at 561.
Questions of Procedure for Ministers, first published by the Cabinet Office in 1992, para27. The text appears in Brazier, Ministers of the Crown, (1997) at 262-263 and in paraD4.57 of the Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions ("The Scott Report"), HC 115, vol 4, ordered by the House of Commons to be printed, 15 February 1996. See also Tomkins, "Government Information and Parliament: Misleading by Design or by Default?", [1996] Public Law 472 at 478-481.
The Commonwealth v Northern Land Council (1993) 176 CLR 604 at 615.
(1858) 11 Moo PC 347 [14 ER 727].
The constitutional development of Tasmania is traced by Quick and Garran: The Annotated Constitution of the Australian Commonwealth, (1901) at 60-61.
(1858) 11 Moo PC 347 at 397 [14 ER 727 at 745].
(1996) 40 NSWLR 650 at 692.
Interpretation Act, s40, s41.
(1996) 40 NSWLR 650 at 692-693.
(1996) 40 NSWLR 650 at 693.
(1996) 40 NSWLR 650 at 653.
(1886) 11 App Cas 197 at 204-205.
New South Wales, Legislative Council, Minutes of the Proceedings of the Legislative Council, 2 May 1996 at 117. Set out in the reasons of Gleeson CJ in the Court of Appeal: (1996) 40 NSWLR 650 at 657.
New South Wales, Legislative Council, Parliamentary Debates (Hansard), 1 May 1996 at 577.
New South Wales, Legislative Council, Minutes of the Proceedings of the Legislative Council, 2 May 1996 at 117. Set out in the reasons of Gleeson CJ in the Court of Appeal: (1996) 40 NSWLR 650 at 656.
New South Wales, Legislative Council, Minutes of the Proceedings of the Legislative Council, 2 May 1996 at 117. Set out in the reasons of Gleeson CJ in the Court of Appeal: (1996) 40 NSWLR 650 at 657.
(1996) 40 NSWLR 650 at 687.
Anson, Law and Custom of the Constitution, 4th ed (1909), vol 1 at 146.
Stockdale v Hansard (1839) 9 Ad & E 1 [112 ER 1112].
Law and Custom of the Constitution, 4th ed (1909), vol 1 at 147.
Discussed in R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162.
Stockdale (1839) 9 Ad & E 1 at 227-228 [112 ER 1112 at 1197].
(1839) 9 Ad & E 1 at 203 [112 ER 1112 at 1188].
Stockdale (1839) 9 Ad & E 1 at 195 [112 ER 1112 at 1186].
(1811) 14 East 1 [104 ER 501].
(1840) 11 Ad & E 273 [113 ER 419].
(1864) 1 Moore (NS) 487 [15 ER 784].
(1871) LR 3 PC 560.
(1955) 92 CLR 157 at 162.
Anson, Law and Custom of the Constitution, 4th ed (1909), vol 1 at 174-175, 176.
See (1839) 9 Ad & E 1 at 114, 162, 209, 233 [112 ER 1112 at 1156, 1173-1174, 1191, 1199].
(1839) 9 Ad & E 1 at 233 [112 ER 1112 at 1199].
(1884) 12 QBD 271.
(1884) 12 QBD 271 at 275.
(1884) 12 QBD 271 at 286.
(1884) 12 QBD 271 at 286-287.
Imperial Acts Application Act 1969 (NSW), s6.
The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 463; Cam and Sons Pty Ltd v Ramsay (1960) 104 CLR 247 at 258; Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 467.
(1884) 12 QBD 271.
2nd ed (1928), vol 1 at 366.
That is, the Parliament of the United Kingdom.
(1842) 4 Moore 63 [13 ER 225].
(1842) 4 Moore 63 at 88-89 [13 ER 225 at 234-235].
[Whenever the law gives something to someone, it is seen to give also that without which the thing could not exist.]
(1886) 11 App Cas 197.
(1886) 11 App Cas 197 at 198.
(1886) 11 App Cas 197 at 203.
Kielley (1842) 4 Moore 63 [13 ER 225]; Doyle v Falconer (1866) LR 1 PC 328.
(1886) 11 App Cas 197 at 203.
(1842) 4 Moore 63 at 88 [13 ER 225 at 234].
(1886) 11 App Cas 197 at 204.
(1886) 11 App Cas 197 at 204-205.
(1858) 11 Moore 347 at 360 [14 ER 727 at 732].
(1842) 4 Moore 63 [13 ER 225].
(1912) 13 CLR 592.
(1912) 13 CLR 592 at 598.
(1842) 4 Moore 63 [13 ER 225].
(1886) 11 App Cas 197.
(1912) 13 CLR 592.
Whether the Court of Appeal "erred in holding that the Legislative Council had an implied power to order the laying of documents on the table by the appellant, which order was enforceable by the imposition of the sanction of suspension on the appellant"?
(1864) 1 Moore (NS) 487 [15 ER 784].
(1871) LR 3 PC 560.
(1955) 92 CLR 157 at 162.
Richards (1955) 92 CLR 157 at 166.
(1842) 4 Moore 63 at 88 [13 ER 225 at 234].
Fenton v Hampton (1858) 11 Moore 347 at 360 [14 ER 727 at 732].
Plenty v Dillon (1991) 171 CLR 635 at 653-654; Coco v The Queen (1994) 179 CLR 427 at 436.
(1842) 4 Moore 63 [13 ER 225].
Osborn's Concise Law Dictionary, 8th ed (1993) at 272; Nygh and Butt, Butterworths Australian Legal Dictionary, (1997) at 967.
(1858) 11 Moore 347 at 360 [14 ER 727 at 732].
The Trolly, Draymen and Carters Union of Sydney and Suburbs v The Master Carriers Association of NSW (1905) 2 CLR 509 at 523.
(1858) 11 Moore 347 at 360 [14 ER 727 at 732].
(1858) 11 Moore 347 at 348 [14 ER 727 at 727-728].
Australia Act 1986 (Cth); Australia Act 1986 (UK).
(1912) 13 CLR 592.
(1886) 11 App Cas 197.
(1996) 40 NSWLR 650 at 659, 664, 685, 691-692.
(1885) 10 App Cas 282.
(1886) 11 App Cas 197.
(1878) 3 App Cas 889.
(1883) 9 App Cas 117.
(1885) 10 App Cas 282 at 289.
(1885) 10 App Cas 282 at 290.
Bonser v La Macchia (1969) 122 CLR 177 at 189, 224-225; R v Bull (1974) 131 CLR 203 at 263, 270-271, 280-282; New South Wales v The Commonwealth ("the Offshore Sovereignty Case") (1975) 135 CLR 337 at 468-469, 494-495; and see Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 12.
(1996) 40 NSWLR 650 at 685-686.
(1996) 40 NSWLR 650 at 685-686.
(1996) 40 NSWLR 650 at 686.
(1996) 40 NSWLR 650 at 686.
Barton v Taylor (1886) 11 App Cas 197 at 205.
Bradlaugh (1884) 12 QBD 271 at 273-274, 284.
McGuinness v Attorney-General (Vict) (1940) 63 CLR 73 at 98-99.
"The Responsible Government Question in Victoria, South Australia and Tasmania, 1851-1856", (1978) 63 Journal of the Royal Australian Historical Society 221 at 222.
18 & 19 Vict, c 54.
18 & 19 Vict, c 54, Sched 1, sI.
sXLVII.
sLIII.
Ward, "The Responsible Government Question in Victoria, South Australia and Tasmania, 1851-1856", (1978) 63 Journal of the Royal Australian Historical Society 221 at 223-224.
Ward, "The Responsible Government Question in Victoria, South Australia and Tasmania, 1851-1856", (1978) 63 Journal of the Royal Australian Historical Society 221 at 224.
20 July 1855, CO 202/66 cited in Melbourne, Early Constitutional Development in Australia (1963) at 423-424 and set out in The New South Wales Parliamentary Handbook, 7th ed (1903) at 200.
The New South Wales Parliamentary Handbook, 7th ed (1903) at 201.
cf Toy v Musgrove (1888) 14 VLR 349 at 392-393.
(1908), vol 1 at vi.
Redlich, The Procedure of the House of Commons, (1908), vol 1 at vii. This statement accords with that of John Stuart Mill that the role of the legislature in a system of representative government is "to watch and control the government" (Considerations on Representative Government, (1861) at 104).
Redlich, The Procedure of the House of Commons, (1908), vol 1 at viii.
(1839) 9 Ad & E 1 at 115 [112 ER 1112 at 1156].
(1845) 10 QB 359 at 379 [116 ER 139 at 147].
Redlich, The Procedure of the House of Commons, (1908), vol 1 at 37-38. Elizabeth's "Chancellor answered the Speaker, Sir Edward Coke, when he made the customary request for the privileges of the House by saying, 'Privilege of speech is granted, but you must know what privilege you have; not to speak every one what he listeth or what cometh in his brain, but your privilege is Aye or No'."
Redlich, The Procedure of the House of Commons, (1908), vol 2 at 41.
Redlich, The Procedure of the House of Commons, (1908), vol 2 at 40.
Redlich, The Procedure of the House of Commons, (1908), vol 2 at 39.
The Government of England, 2nd ed (1886) at 145.
In 1847, only 129 questions were asked in the Commons. This had risen to 212 by 1850 and to 699 by 1860. By 1885, the number of questions asked had risen to 3,354 and by 1901 to 6,448; (Redlich, The Procedure of the House of Commons, (1908), vol 2 at 244).
Redlich, The Procedure of the House of Commons, (1908), vol 2 at 241.
(1996) 40 NSWLR 650 at 677.
(1996) 40 NSWLR 650 at 677.
A History of English Law, 2nd ed (1937), vol 6 at 100.
Holdsworth, A History of English Law, 2nd ed (1937), vol 6 at 99.
(1969) 71 SR (NSW) 386.
Toohey v Melville (1892) 13 LR (NSW) 132.
New South Wales, Legislative Council, Minutes of the Proceedings of the Legislative Council, 2 May 1996 at 117. Set out in the reasons of Gleeson CJ in the Court of Appeal: (1996) 40 NSWLR 650 at 657.
(1886) 11 App Cas 197.
(1912) 13 CLR 592.
Egan v Willis and Cahill (1996) 40 NSWLR 650.
Subsequently the statement of claim was amended to seek an additional declaration that para2 and para3 of the resolution of the Legislative Council of 2 May 1996 concerning the appellant were invalid.
See eg New South Wales Parliamentary Debates (Council) Vol 1 (1856) at 17; (1858) at 60, 71, 72, 74; (1898) at 457-459; (1913) at 1837-1838.
cf Egan v Willis and Cahill (1996) 40 NSWLR 650 at 654 per Gleeson CJ.
Standing Order 18, of the Standing Orders of the Council, states that "Any Papers may be ordered to be laid before the House and the Clerk shall communicate to the Premier's Department any such order". In accordance with this Standing Order, the resolution of the Council was communicated to the Premier's Department on the following day. Amongst his ministerial appointments, the appellant is the Minister assisting the Premier, and representing the Premier in the Council.
Cabinet Minute No 382 (29 April 1996) "Tabling of Papers - Lake Cowal Goldmine".
New South Wales Parliamentary Debates (Council) 1 May 1996, quoted by Gleeson CJ in Egan v Willis and Cahill (1996) 40 NSWLR 650 at 656.
New South Wales Parliamentary Debates (Council), 2 May 1996, quoted by Gleeson CJ in Egan v Willis and Cahill (1996) 40 NSWLR 650 at 657.
Egan v Willis and Cahill (1996) 40 NSWLR 650 at 672 per Gleeson CJ, 684-686 per Mahoney P, 693 per Priestley JA.
Standing O262.
Egan v Willis and Cahill (1996) 40 NSWLR 650 at 655, 671 per Gleeson CJ.
Egan v Willis and Cahill (1996) 40 NSWLR 650 at 670-671 per Gleeson CJ.
Egan v Willis and Cahill (1996) 40 NSWLR 650 at 671 per Gleeson CJ.
18 and 19 Vict, c 54. The curious history of the adoption of the Constitution is told by Priestley JA in Egan v Willis and Cahill (1996) 40 NSWLR 650 at 690-691. See now also Constitution Act 1902 (NSW).
Constitution Act 1855 (Imp), s36.
Except to a lesser extent in Tasmania. The position of the Legislative Assemblies of the Northern Territory, the Australian Capital Territory and the other Territories of the Commonwealth was not examined.
Australian Constitution, s49.
Constitution Act 1975 (Vic), s19; Constitution Act 1934 (SA), s38; Parliamentary Privileges Act 1891 (WA), s12. See also Constitution Act 1867 (Q), s40A (inserted 1978) and Parliamentary Privileges Act 1858 (Tas), s17.
Egan v Willis and Cahill (1996) 40 NSWLR 650 at 660 per Gleeson CJ.
The Act was originally enacted in 1881.
Kielley v Carson (1842) 4 Moo PC 63 at 92 [13 ER 225 at 236]; Fenton v Hampton (1858) 11 Moo PC 347 [14 ER 727]; Doyle v Falconer (1866) LR 1 PC 328; Barton v Taylor (1886) 11 App Cas 197.
Willis and Christie v Perry (1912) 13 CLR 592 at 597; R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162, 166.
Armstrong v Budd (1969) 71 SR (NSW) 386 at 391-394, 395, 403, 406.
Egan v Willis and Cahill (1996) 40 NSWLR 650 at 664-665 per Gleeson CJ, 676-677 per Mahoney P, 687-692 per Priestley JA.
Constitution Act 1902 (NSW), s5A, s5B.
Although it was accepted that the Council had functions in filling casual vacancies both of the New South Wales Parliament (Constitution Act 1902 (NSW), s22D) and of the Federal Parliament (Constitution Act 1902 (NSW), s15), any implied right to secure documentary information about such candidates would be strictly limited to that issue. According to the appellant, to infer a more general implied right to obtain documents was not reasonably necessary.
New South Wales Parliamentary Debates (Council) 13 November 1995 at 2996; ibid 1 May 1996 at 585.
Stockdale v Hansard (1839) 9 Ad & E 1 [112 ER 1112].
New South Wales Parliamentary Debates (Council) 2 May 1996 at 713.
Stockdale v Hansard (1839) 9 Ad & E 1 at 115 [112 ER 1112 at 1156] where Lord Denman CJ said: "All the privileges that can be required for the energetic discharge of the duties inherent in that high trust are conceded without a murmur or a doubt".
1 Wm & Mary Sess 2 cap 2 Art 9.
Imperial Acts Application Act 1969 (NSW), s6. See R v Jackson (1987) 8 NSWLR 116 at 118.
Raised by the Attorney-General for South Australia (intervening).
Egan v Willis and Cahill (1996) 40 NSWLR 650 at 663 per Gleeson CJ. See also at 675, 686 per Mahoney P.
Pursuant to the Judiciary Act 1903 (Cth), s78A.
Pursuant to the Judiciary Act 1903 (Cth), s78A(3).
Sivakumar v Pattison [1984] 2 NSWLR 78 at 80.
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 241.
Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332 citing Burdett v Abbot (1811) 14 East 1 [104 ER 501]; Stockdale v Hansard (1839) 9 Ad & E 1 [112 ER 1112]; Bradlaugh v Gossett (1884) 12 QBD 271; Pickin v British Railways Board [1974] AC 765 and Pepper v Hart [1993] AC 593.
See Arena v Nader (1997) 71 ALJR 1604 at 1065; R v Jackson (1987) 8 NSWLR 116 at 118; Smith v The Queen (1991) 25 NSWLR 1 at 13-16.
9 Geo IV c 83, s24; cf Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 466-467.
cf The Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 at 433-434, 463.
The position in New Zealand is described in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332 referring to the Imperial Laws Application Act 1988 (NZ).
[1995] 1 AC 321.
Bradlaugh v Gossett (1884) 12 QBD 271 at 275.
Prebble v Television New Zealand Ltd [1995] 1 AC 321; cf Eastgate v Rozzoli (1990) 20 NSWLR 188; Bignold v Dickson (1991) 23 NSWLR 683.
In the case of the Federal Parliament, Australian Constitution, s49; cf Sankey v Whitlam (1978) 142 CLR 1 at 35, 97-99; R v Murphy (1986) 5 NSWLR 18 disapproved in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 333. See now Parliamentary Privileges Act 1987 (Cth), s16.
(1955) 92 CLR 157.
(1969) 71 SR (NSW) 386.
[1995] 1 AC 321 at 337.
Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335.
cf Melbourne Corporation v The Commonwealth ("the State Banking Case") (1947) 74 CLR 31 at 82.
cf Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335.
cf R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 166. In refusing a grant of special leave, the Privy Council observed that the judgment of this Court was "unimpeachable". See ibid at 171-172.
Kielley v Carson (1842) 4 Moo PC 63 [13 ER 225]; Fenton v Hampton (1858) 11 Moo PC 347 [14 ER 727]; Doyle v Falconer (1866) LR 1 PC 328; Barton v Taylor (1886) 11 App Cas 197; Willis and Christie v Perry (1912) 13 CLR 592.
Kielley (Newfoundland) and Doyle (Dominica).
Fenton (Van Diemen's Land); Barton and Willis (New South Wales).
R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 167 ["... there has been a tendency to regard those powers as not strictly judicial but as belonging to the legislature, rather as something essential or, at any rate, proper for its protection" (emphasis added)].
Kielley v Carson (1842) 4 Moo PC 63 [13 ER 225]; Fenton v Hampton (1858) 11 Moo PC 347 [14 ER 727]; Doyle v Falconer (1866) LR 1 PC 328; Barton v Taylor (1886) 11 App Cas 197; Willis and Christie v Perry (1912) 13 CLR 592.
Osborne v The Commonwealth (1911) 12 CLR 321 at 336; The State of South Australia v The State of Victoria (1911) 12 CLR 667 at 674-675; Hughes and Vale Pty Ltd v Gair (1954) 90 CLR 203 at 204-205; Clayton v Heffron (1960) 105 CLR 214 at 234-235; Cormack v Cope (1974) 131 CLR 432 at 451-454, 464-466, 467, 472; Eastgate v Rozzoli (1990) 20 NSWLR 188 at 193-198.
Cormack v Cope (1974) 131 CLR 432; cf Trethowan v Peden (1930) 31 SR (NSW) 183; (1931) 44 CLR 394; Attorney-General (NSW) v Trethowan (1932) 47 CLR 97 (PC); [1932] AC 526.
Australian Constitution, s9, s15, s107, s108, s123, s124.
Despite the equivalent to Art 9 of the Bill of Rights in the United States Constitution, it was not suggested that the Supreme Court not determine where the limit of privilege lay. See Quinn v United States 349 US 155 (1955). As to the position in India see The President's Reference No 1 of 1964 (1965) 1 SCR 413 (SC India); and criticism in Seervai, Constitutional Law of India, 4th ed (1993), vol 2 at 2169-2196.
(1955) 92 CLR 157.
Australian Constitution, s49. See also now Parliamentary Privileges Act 1987 (Cth), s16.
Armstrong v Budd (1969) 71 SR (NSW) 386.
Australian Constitution, s9, s15, s107, s108, s123, s124.
Australian Constitution, s119.
Australian Constitution, s15, s21, s110.
Australian Constitution, s71.
R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 166-168; cf The President's Reference No 1 of 1964 (1965) 1 SCR 413 (SC India).
The want of power on the part of a chamber to punish those in contempt of its orders has sometimes been explained by reference to the fact that punishment is, of its nature, judicial in character and therefore not apt to be implied as amongst the privileges of a legislature. See Armstrong v Budd (1969) 71 SR (NSW) 386 at 393. The opposite conclusion was reached in the United States of America in an early case where the power of the Congress to punish for contempt so as to uphold its privileges was considered essential to their effectiveness. See Kilbourn v Thompson 103 US 168 (1880); Jurney v MacCracken 294 US 125 at 152 (1935).
McGinty v Western Australia (1996) 186 CLR 140 at 168-169, 184-185, 231.
cf New Brunswick Broadcasting Co v Nova Scotia [1993] 1 SCR 319.
A measure of flexibility appears in the decision of the Court in Taylor v Attorney-General of Queensland (1917) 23 CLR 457 which held that, despite references in the Australian Constitution to "Houses" of State Parliaments the Upper House of the Queensland Parliament might be abolished. See also Western Australia v The Commonwealth (Territory Senator's Case (No 1)) (1975) 134 CLR 201.
R v Tilley (1991) 56 SASR 140 at 143 per King CJ; cf Egan v Willis and Cahill (1996) 40 NSWLR 650 at 686 per Mahoney P.
(1969) 71 SR (NSW) 386 at 401-402.
Australia Act 1986 (Cth), s1, s2 and s3. Note however that even in colonial times a wide measure of legislative power was accorded to a Parliament such as that of New South Wales. See Barton v Taylor (1886) 11 App Cas 197; Powell v Apollo Candle Co Ltd (1885) 10 App Cas 282 at 289-290.
New Brunswick Broadcasting Co v Nova Scotia [1993] 1 SCR 319.
Kielley v Carson (1842) 4 Moo PC 63 at 88 [13 ER 225 at 234].
Taylor v Taylor (1979) 143 CLR 1 at 5-6; Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623; Grassby v The Queen (1989) 168 CLR 1 at 16-17; John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 at 147.
cf Crick v Harnett (1907) 7 SR (NSW) 126 at 132.
See eg New Brunswick Broadcasting Co v Nova Scotia [1993] 1 SCR 319. See also Watkins v United States 354 US 178 at 187 (1957).
First enacted in 1881. There were attempts to enact legislation but none succeeded. See Campbell, Parliamentary Privilege in Australia (1966).
Relying on McGinty v Western Australia (1996) 186 CLR 140 esp 214.
cf Willis and Christie v Perry (1912) 13 CLR 592.
Egan v Willis and Cahill (1996) 40 NSWLR 650 at 676 per Mahoney P.
A power to adopt standing orders exists. See Constitution Act 1902 (NSW), s15(1)(a).
Constitution Act 1902 (NSW) s5 (proviso).
R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 166.
Erskine May, Parliamentary Practice, 21st ed (1989) at 213-214; cf Odgers' Australian Senate Practice, 7th ed (1995) at 51.
349 US 155 at 160-161 (1955).
273 US 135 at 175 (1927).
See Senate Select Committee v Nixon 498 F 2d 725 (1974).
See eg Australian Constitution, s64; Constitution Act 1902 (NSW), s35E and s38A; cf Uhr, Deliberative Democracy in Australia (1998) at 161-163; Shane, "Legal Disagreement and Negotiation in a Government of Laws: The Case of Executive Privilege Claims Against Congress" 71 Minnesota Law Review 461 (1987).
(1960) 105 CLR 214 at 251.
Willis and Christie v Perry (1912) 13 CLR 592 at 598.
In 1975 the Prime Minister objected to demands made by the Senate on public servants for the production of documents, but only on the basis that such "documents ... should be sought from Ministers by the normal and proper procedures of the Parliament". See letter to the President of the Senate quoted in Campbell, "Appearance of Officials as Witnesses Before Parliamentary Committees" in Nethercote (ed), Parliament and Bureaucracy (1982) at 179, 211-213.
Compare the consideration of analogous issues in the context of "deliberative" or "discursive" democracy and of so-called "civic-republicanism". See generally Sunstein, The Partial Constitution (1993) at 1-12, 134-135, 241-247; Sunstein, "Beyond the Republican Revival", (1988) 97 Yale Law Journal 1539 at 1541, 1544-1551; Rawls, A Theory of Justice (1971) at 416-424; Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996). In the Australian context, see Uhr, Deliberative Democracy in Australia (1998), Ch 1 and Ch 3.
Egan v Willis and Cahill (1996) 40 NSWLR 650 at 665 per Gleeson CJ, 677 per Mahoney P.
McGinty v Western Australia (1996) 186 CLR 140.
The latter principle was said to derive principally from s5A of the Constitution Act 1902 (NSW).
Constitution Act 1902 (NSW), s5, s5A, s38A.
Stockdale v Hansard (1839) 9 Ad & E 1 [112 ER 1112].
See for example Lumb, The Constitutions of the Australian States, 5th ed (1991) at 65-70; Parker, "Responsible Government in Australia" in Weller and Jaensch (eds) Responsible Government in Australia (1980), Ch 2; Uhr, Deliberative Democracy in Australia (1998), Ch 7.
cf Finn, Law and Government in Colonial Australia (1987), Ch 3; Ward, Colonial Self-Government (1976), Ch 9; Ward, "The Responsible Government Question in Victoria, South Australia and Tasmania 1851-1856", (1978) 63 Journal of the Royal Australian Historical Society 221.
cf Finn, "Public Trust and Political Accountability" (1993) Australian Quarterly 65; Finn, "A Sovereign People, A Public Trust" in Finn (ed) Essays on Law and Government (1995), vol 1, Ch 1; Uhr, Deliberative Democracy in Australia, (1998) Ch 7.
See eg Coco v The Queen (1994) 179 CLR 427 at 436; cf Kartinyeri v The Commonwealth (1998) 72 ALJR 722 at 736; 152 ALR 540 at 558.
cf Plenty v Dillon (1991) 171 CLR 635 at 653-654.
Willis and Christie v Perry (1912) 13 CLR 592 at 597-598; cf Fenton v Hampton (1858) 11 Moo PC 347 [14 ER 727].
See eg Harnett v Crick [1908] AC 470.
Fenton v Hampton (1858) 11 Moo PC 347 [14 ER 727].
See Egan v Willis and Cahill (1996) 40 NSWLR 650 at 667 per Gleeson CJ citing Barton v Taylor (1886) 11 App Cas 197 at 205; Willis and Christie v Perry (1912) 13 CLR 592 at 599-600.
Anderson v Dunn 19 US 204 (1821). The contrary proposition was said to be "a supposition too wild to be suggested".
R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157; cf Willis and Christie v Perry (1912) 13 CLR 592; Armstrong v Budd (1969) 71 SR (NSW) 386.
As it was by Gleeson CJ. See Egan v Willis and Cahill (1996) 40 NSWLR 650 at 667; cf Witham v Holloway (1995) 183 CLR 525; AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98.
cf Armstrong v Budd (1969) 71 SR (NSW) 386.
The unchallenged finding that expulsion to the footpath was excessive and unlawful is excluded from consideration.
cf Armstrong v Budd (1969) 71 SR (NSW) 386 at 397.
Western Australia v The Commonwealth (Territory Senator's Case (No 1)) (1975) 134 CLR 201 at 275; Kartinyeri v The Commonwealth (1998) 72 ALJR 722 at 743; 152 ALR 540 at 569.
Sankey v Whitlam (1978) 142 CLR 1 at 38-43.
(1886) 11 App Cas 197 at 202-203.
(1912) 13 CLR 592 at 597-598, 599-600.
Contrast Criminal Justice Commission v Nationwide News Pty Ltd [1996] 2 Qd R 444 in which the Speaker of the unicameral legislature of Queensland sought to intervene to argue and did argue that the Court should abstain from hearing the case.
Egan v Willis & Cahill (1996) 40 NSWLR 650.
(1996) 40 NSWLR 650 at 664.
S15(1) provides:"The Legislative Council and Legislative Assembly shall, as there may be occasion, prepare and adopt respectively Standing Rules and Orders regulating:
- (a)
- the orderly conduct of such Council and Assembly respectively; ...".
(1996) 40 NSWLR 650 at 653.
(1955) 92 CLR 157 at 162.
See the Commonwealth Constitution s49 and s50:"49. The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.50. Each House of the Parliament may make rules and orders with respect to -
- (i)
- The mode in which its powers, privileges, and immunities may be exercised and upheld:
- (ii)
- The order and conduct of its business and proceedings either separately or jointly with the other House."
Legislation was introduced five times between 1856 and 1912. Further consideration was given to enacting legislation as recently as 1984 and 1996. See also Report of the Joint Select Committee of the Legislative Council and Legislative Assembly on Parliamentary Privilege in New South Wales, 1984-5, at 17. Examples of failed legislation are the Parliamentary Powers and Privileges Bill 1879, the Parliamentary Powers and Privileges Bill of 1901 and 1912 and the Parliamentary Privileges Bill of 1911.
Money bills cannot originate in the Council and may be presented for Royal assent notwithstanding the Council's failure to pass them, if certain conditions are satisfied: Constitution Act 1902 (NSW) s5, s5A.
See for example Constitution Act 1867 (Qld); Constitution Act 1934 (Tas); Constitution Act 1934 (SA).
3rd ed (1969) at 267 (footnote omitted). See also Odgers' Australian Senate Practice, 8th ed (1997); Commonwealth Cabinet Handbook "Access to Cabinet Documents of Previous Governments" at para9.32-para9.35 and Professor Enid Campbell's chapter, "Appearance of Officials as Witnesses Before Parliamentary Committees" in Nethercote (ed), Parliament and Bureaucracy (1982) at 179-226.
(1969) 71 SR (NSW) 386.
See Doyle v Falconer (1866) LR 1 PC 328 at 340; Barton v Taylor (1886) 11 App Cas 197 at 203, 205; Armstrong v Budd (1969) 71 SR (NSW) 386 at 406 per Sugerman JA.
(1955) 92 CLR 157 at 162 per Dixon CJ speaking for the Court, McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ, " ... it is for the House to judge of the occasion and of the manner of its exercise". See also the recent discussion in Criminal Justice Commission v Nationwide News Pty Ltd [1996] 2 Qd R 444 at 455-457 per Pincus JA and at 459-460 per Davies JA regarding the justiciability of some matters occurring in a House of Parliament.
The Court of Appeal of New South Wales, in Armstrong v Budd (1969) 71 SR (NSW) 386 at 393, regarded Harnett v Crick [1908] AC 470 (a suspension case only) as supporting a right of expulsion. Legislative Councillors can hardly be regarded as holding office, like members of a club at the pleasure, or the displeasure of other members. They hold office by popular franchise governed by legislation which is the product of both Houses of Parliament.
See Constitution Act 1902 (NSW) s5A which precludes the Legislative Council obstructing the passage of money bills." (1) If the Legislative Assembly passes any Bill appropriating revenue or moneys for the ordinary annual services of the Government and the Legislative Council rejects or fails to pass it or returns the Bill to the Legislative Assembly with a message suggesting any amendment to which the Legislative Assembly does not agree, the Legislative Assembly may direct that the Bill with or without any amendment suggested by the Legislative Council, be presented to the Governor for the signification of His Majesty's pleasure thereon, and shall become an Act of the Legislature upon the Royal Assent being signified thereto, notwithstanding that the Legislative Council has not consented to the Bill."
The Preamble to the 1881 Parliamentary Evidence Act (NSW) reads: "WHEREAS it is expedient that the power of compelling the attendance of Witnesses and of examining them on oath should be possessed by Parliament and Parliamentary Committees. Be it therefore enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled and by the authority of the same as follows:-".
(1886) 11 App Cas 197 at 204.
S38A provides:"(1) Notwithstanding anything contained in this Act, any Minister of the Crown who is a member of the Legislative Assembly may at any time, with the consent of the Legislative Council, sit in the Legislative Council for the purpose only of explaining the provisions of any Bill relating to or connected with any department administered by him, and may take part in any debate or discussion in the Legislative Council on such Bill, but he shall not vote in the Legislative Council.(2) It shall not be lawful at any one time for more than one Minister of the Crown under the authority of this section to sit in the Legislative Council."
(1996) 40 NSWLR 650 at 676.
See generally Water Board v Glambedakis (1992) 28 NSWLR 694 at 707.
(1996) 40 NSWLR 650 at 677.
(1886) 11 App Cas 197 at 203.
(1996) 189 CLR 51.
Copyright notice
© Australian Taxation Office for the Commonwealth of Australia
You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).
