Egan v. Willis and Egan v. Chadwick: Responsible Government and Parliamentary Privilege


Research Paper 12 1999-2000

Christos Mantziaris(1)
Law and Bills Digest Group
14 December 1999

Contents

Major Issues
The events in the New South Wales Legislative Council

The 1996 resolutions
The 1998 resolutions

The litigation and the court's determination of the questions

The legal issues raised in Egan v. Willis
The legal questions decided in Egan v. Willis
The legal issues raised in Egan v. Chadwick
The legal questions decided in Egan v. Chadwick

Exploration of the doctrine of responsible government

The foundations laid by Lange v. ABC
The flexible character of responsible government
The functions of parliament within a system of responsible government
Specific parliamentary components of responsible government
Extra-parliamentary components of responsible government
Responsible government within a bicameral parliamentary system
The position of intergovernmental bodies

Justiciability of parliament's powers and privileges

The effect of Article 9 of the Bill of Rights
Position 1: Justiciability presents no barrier to the court's jurisdiction
Position 2: Justiciability supported by the nature of the federal polity
Position 3: Justiciability conditional upon determination of general law rights or obligations
Position 4: Matters arising within the Parliament are not justiciable
Conclusion on justiciability

Judicial construction of parliamentary powers and privileges-General Principles

The common law test of reasonable necessity
The effect of the Australia Act 1986 (Cwth) and the Commonwealth Constitution upon State Constitutions
The interpretation of Commonwealth parliamentary privileges

Parliament's privileges in relation to documents

The common law and the Constitution
Legal professional privilege
Public interest immunity
The special case of cabinet documents: a divergence of opinion
The definition of 'Cabinet documents'
Revision of Senate and Commonwealth Executive practice?

Parliament's powers to compel or punish
Powers over persons not members of the House
Conclusion
Endnotes

Major Issues

Two important recent decisions stemming from events in the New South Wales Legislative Council may have broad reaching implications for the conduct of parliamentary affairs at both the State and Commonwealth levels. These are the decision of the High Court in Egan v. Willis (19 November 1998)(2) and the decision of the New South Wales Court of Appeal in Egan v. Chadwick (10 June 1999).(3)

The Egan cases have allowed the courts to consider a number of important issues relating to the relationship of the Executive to the Parliament. This has clarified some issues, created greater complexity in other quarters and hinted at a constitutional reinterpretation affecting the Commonwealth Parliament's powers and privileges. Among the issues considered in these cases, and discussed in this paper, are the following:

  • judicial recognition that the constitutions of the Australian States and the Commonwealth presuppose a system of responsible and representative government
  • the main features of a system of responsible government, its parliamentary components (such as ministerial responsibility and Parliament's information-gathering powers) and its extra-parliamentary components (such as judicial review of administrative action and freedom of information legislation)
  • the relationship of Parliament's law-making function to its function in scrutinising the conduct of Executive government and the scope of that scrutiny
  • the accountability of the Executive to the Parliament in a bicameral legislature, particularly in situations where the Executive lacks control of the upper legislative chamber
  • the ability of the courts to adjudicate disputes and declare the content of parliamentary powers and privileges ('justiciability')
  • the principles by which the courts determine the content of parliamentary powers and privileges once such matters are regarded as justiciable
  • the ability of the Executive to claim public interest immunity or legal professional privilege for documents which Parliament has requested
  • the confidentiality of Cabinet documents
  • the nature of the parliamentary power to punish for a contempt of parliament
  • the proper interpretation of section 49 of the Commonwealth Constitution and the constitutional validity of the Parliamentary Privileges Act 1987 (Cwlth.)

At its narrowest, the legal effect of the Egan decisions is that parliamentary powers and privileges(4) may be implied if they are reasonably necessary for the fulfilment of Parliament's functions. Parliament is recognised as having two main functions-law making and the scrutiny of the Executive's conduct. Interpretations of what is reasonably necessary for the exercise of these functions, will emerge in the light of changing historical circumstances, governmental arrangements and parliamentary conventions. The court is only likely to declare the content of these powers and privileges where it is necessary to do so in order to determine a right or obligation arising under the general law.

Further, the Executive cannot resist Parliament's demand to view a document through a claim to legal professional privilege or public interest immunity. Cabinet documents are an exception to this rule-such documents remain confidential.

As the list of major issues displays, these cases have a significance which transcends their narrow legal effect. Many aspects of the various judgments provide important hints of future directions that might be adopted by the High Court in important public law matters. In addition, the cases merit attention for the student of practical politics, as they illustrate how litigation is becoming an increasingly important avenue for the conduct of political disputes once reserved to the chambers of Parliament.

The events in the New South Wales Legislative Council

New South Wales has a bicameral system of representative and responsible government. Members of the Legislative Council (the upper House) hold office for a term longer than that of the Legislative Assembly (the lower House),(5) and the system for the election of members of the two Houses of Parliament differs.(6) At the time of the events which gave rise to this litigation, the Carr Labor Government enjoyed the support of a majority in the Legislative Assembly but did not enjoy the support of a majority in the Legislative Council. Unlike the Commonwealth,(7) and other States within the federation,(8) New South Wales does not have a statute determining the powers, immunities and privileges of the Houses of Parliament.

Under the NSW Constitution, the Premier and other Ministers of the Crown are appointed by the Governor from among the members of the Executive Council and hold office 'during the Governor's pleasure'.(9) The Hon. Michael Egan was a Member of the Legislative Council and Leader of the Government in that House. Mr Egan held the position of Vice President of the Executive Council and was also a Minister of the Crown, holding the offices of Treasurer, Minister for State Development and Minister Assisting the Premier.

In 1996 and 1998, resolutions were passed by the Council requiring Mr Egan to table government documents relating to matters of political controversy. Mr Egan refused to do so and a long dispute developed. It is significant to note that well before the events under consideration, Mr Egan had informed the Legislative Council that in addition to acting in respect of his own portfolios, he would also 'represent' in the Legislative Council, and in respect of their portfolio responsibilities, the Premier and other named ministers sitting in the Legislative Assembly.(10) The only basis for this representation was Parliamentary convention.(11) One of the documents that Mr Egan was asked to table was a report provided by the Director-General of a department to one of the named Ministers.

The 1996 resolutions

In April 1996, the Council resolved that papers relating to the Government's consideration of the report of a commission of inquiry into a goldmine be tabled and that Mr Egan provide those papers to the Clerk of the House. In response, Cabinet passed a resolution that ministers should 'decline to comply with any order from either House of Parliament to table documents on the grounds that such orders are invalid and beyond power.'(12) This set the scene for a confrontation between the Executive and the Parliament.

Mr Egan did not comply with the Council's resolution. The Council then censured Mr Egan and required him to deliver or table the documents by the next morning. Again, Mr Egan did not comply, stating that 'The constitutional principle ... is that the government of the day is responsible to the Legislative Assembly'.(13) The direct implication was that the Executive was not responsible to the Legislative Council.

The Council then made the following resolutions:

  • Mr Egan was adjudged guilty of contempt of the House (para 2)
  • Mr Egan was suspended from the service of the House for the remainder of the day's sitting (para 3(a)), and
  • Mr Egan was ordered to appear on the next sitting day to explain his failure, and the government's failure, to comply with the Council's order (para 3(b)).

According to the record of proceedings,(14) the President of the Council (the Hon. Mr Willis) directed the Usher of the Black Rod (Mr Cahill) to escort Mr Egan from the precincts of Parliament. When Mr Egan declined to leave voluntarily, the chair was vacated because of disorder. The Usher removed Mr Egan to the pavement of Macquarie Street, beyond the Parliament precinct.

These events form the basis of the litigation in Egan v. Willis and Cahill. The proceedings ended when Mr Egan's appeal to the High Court was dismissed on 19 November 1998.

The 1998 resolutions

In October 1998, just before the High Court decision in Egan v. Willis, Mr Egan became the subject of a new set of resolutions by the Legislative Council. The Council passed a resolution which called upon Mr Egan to table with the Clerk of the House, within 24 hours, documents relating to the contamination of Sydney's water supply system. These documents were to be given unrestricted public access. Documents subject to legal professional privilege or public interest immunity were to be identified and the reasons for the claim tabled with the Clerk. Any dispute about the status of a document was to be resolved by an independent legal arbiter, appointed by the House, who would report to the President of the House.

Mr Egan refused to table two documents which fell within the category of documents requested. These were:

  • a letter of advice from the Crown Solicitor to the Director-General of the Cabinet Office. Mr Egan claimed the document was subject to legal professional privilege.
  • a submission to Cabinet from the Deputy Premier. Mr Egan claimed the document was subject to public interest immunity.

One week later, the Council passed a second resolution holding Mr Egan guilty of contempt of the Council by reason of his failure to obey the previous resolution. This second resolution imposed the sanction of suspension from the service of the House for 5 sitting days.

On 24 November 1998 (five days after the failure of Mr Egan's High Court appeal in Egan v. Willis), the Council passed a third resolution calling Mr Egan to table, according to a similar procedure, a series of documents relating to a range of public issues. The resolution provided that for all claims of privilege other than Cabinet documents, documents would be made available to members of the Legislative Council. Documents identified as Cabinet documents would remain in the custody of the Clerk.

Mr Egan claimed that he delivered to the Clerk all documents in his possession falling within the terms of this resolution, with the exception of documents for which he claimed legal professional privilege or public interest immunity. The independent arbiter's report upon the status of these documents was also tabled.

The Council then passed a fourth resolution, on 26 November, holding Mr Egan in contempt of the House for failure to comply fully with the Council's order. The order required the production of various documents-documents which Mr Egan claimed to be privileged-and stated that Mr Egan would be suspended from the House until he complied with the order.

Mr Egan did not comply and he was suspended from the House on 27 November. This was the first time a Minister had been suspended from a House of an Australian Parliament for failing to produce documents by reason of a claim of privilege.(15) In implementing the suspension order on that day, the Usher of the Black Rod approached Mr Egan in the Council chamber and escorted him from the House.

Mr Egan commenced fresh proceedings against the new President of the Council (the Hon. Ms Chadwick) and the Usher of the Black Rod. These events form the basis of the NSW Court of Appeal's decision in Egan v. Chadwick which was handed down on 11 June 1999.

The litigation and the court's determination of the questions

Mr Egan lost both cases. The precise nature of the questions considered and answered in these proceedings is critical to understanding the law that has emerged. For analytical purposes, it is important to distinguish between the issues raised in litigation and the issues determined by the court in each case. This is because many issues were raised, and their significance acknowledged by the court, only to be dropped by the parties before they could become the subject of judicial determination.

The reason for this volatility in the pleadings was the intense political nature of the litigation. In the long history of elected Australian legislative chambers, an impasse such as that which developed in the NSW Legislative Council in 1996 and 1998 'has usually been avoided either by negotiation or by one side or the other not pressing its claim but equally not abandoning it'.(16)

The litigation was a product of a peculiar circumstance-the Executive's lack of control of the Upper House. Mr Egan's long term suspension from the House would have threatened the Government's ability to pursue its legislative program. Throughout the course of the litigation, the political pressure rose and fell. The pressure was eventually removed by an election which gave the Labor Government control of both Houses of Parliament.

The legal issues raised in Egan v. Willis

In the first phase of litigation-Egan v. Willis-proceedings were commenced in the Supreme Court of New South Wales, but removed immediately to the Court of Appeal.(17) The appeal from the decision of the Court of Appeal was eventually dismissed by the High Court.

Mr Egan initially sought a declaration that:

  • the Council's resolution of 2 May 1996 (regarding the findings of contempt and his suspension from the day's sitting, paras 2 and 3(a)) were invalid, and
  • the President of the Council and the Usher of the Black Rod had committed an unlawful trespass to Mr Egan's person.

The Court of Appeal dismissed the claim for the first declaration. This part of the decision was not appealed. Nevertheless, the High Court made some important observations on the issue of justiciability of such a declaration.(18)

There was no argument in either the Court of Appeal or the High Court about resolution 3(b) of 2 May 1996 which had required Mr Egan to attend the House the following day to explain his non-compliance.(19) The High Court majority stated that its reasons in Egan v. Willis should not be read as expressing any view concerning the validity of the para 3(b) resolution.(20) The answer to this question remains open.

While the Court of Appeal made a limited declaration that trespass had occurred 'by reason of the extent' of Mr Egan's removal from the House on 2 May 1996. No cross-appeal was brought on this issue. Thus, arguments as to any trespass that may have occurred between the limit of the Parliamentary precinct and the Macquarie Street pavement were not heard in the High Court.(21)

The legal questions decided in Egan v. Willis

There was disagreement in the High Court as to the actual issue brought before it for determination. A majority of six dismissed the appeal. The different analyses offered by the majority judges are of significance in assessing the law that has emerged from the decision.

(a) Analyses offered by the majority

For Gaudron, Gummow, Hayne and Callinan JJ, the question before the High Court was whether there was any justification for the trespass constituted by Mr Egan's removal from the chamber to the limits of the Parliamentary precinct. The justification pleaded was the Council's order to suspend Mr Egan. Gaudron, Gummow and Hayne JJ held that, in order to decide the question of justified trespass, the High Court had to consider whether the Council had the power to remove Mr Egan for non-compliance with its resolutions.(22) According to these three judges, it was only by means of the trespass issue-an issue which arose under the general law-that the validity of paras 2 and 3(a) of the resolution of 2 May 1996 became justiciable.(23) Callinan J saw no such barrier to the judicial declaration of the Parliament's powers and privileges and therefore did not comment upon the issue of justiciability.

Kirby J identified three questions for determination:(24) (a) the question of justiciability; (b) the question of whether the Council had the power to order Mr Egan to table the documents, to suspend him from the House and to remove him from the Parliamentary precinct; and (c) the question of whether the Commonwealth Constitution and the Australia Acts 1986 affected the issue of justiciability and the construction of the NSW Parliament's powers, privileges and immunities. Kirby J was the only judge to attribute any significance to the influence of the Commonwealth Constitution and the Australia Acts upon the interpretation of the NSW Constitution.

(b) The minimum ratio of the case

The minimum ratio provided by this majority of six judges was that the Legislative Council had such powers, privileges and immunities as were 'reasonably necessary' for the proper exercise of its functions. This question was to be understood by reference to the conventional practices established and maintained by the Council. On the facts of the case, the Council's actions in passing and implementing resolutions 2 and 3(a) did not go beyond what was permissible in coercing or inducing compliance with the Council's wishes.

(c) A dissenting analysis

Under McHugh J's analysis of the appeal, there were three issues to be determined: (a) whether the Council had the power to demand that Mr Egan table the papers; (b) whether the Council had the power to suspend Mr Egan for failing to table the papers and (c) the justiciability issue.(25) McHugh J concluded that as far as the third issue was concerned, the Supreme Court could not look into the business of the Legislative Council.

Though stating his agreement with the substance of the respondent's claims, McHugh J allowed the appeal because of his view of the justiciability issue. McHugh J therefore allowed the appeal so that the order and declaration made by the Court of Appeal can be set aside and a different order be substituted.(26) His Honour acknowledged that this result was achieved for what 'some may regard as technical reasons'.(27)

The legal issues raised in Egan v. Chadwick

The second phase of the litigation was conducted in the NSW Court of Appeal under the name Egan v. Chadwick. In the pleadings entered before 27 November 1998, Mr Egan put a large number of matters in issue. These were listed by Priestley JA in an appendix to the judgment.(28) The list includes issues such as the justiciability of various resolutions of the Parliament, the argument that resolutions which are 'punitive' are beyond Parliament's power and questions regarding the proper construction and validity of particular resolutions.

After the events of 24-27 November 1998, the pleadings were amended to allege forcible removal of Mr Egan on 27 November. Given the approach to the issue of justiciability taken by the High Court in Egan v.Willis,(29) the issue of trespass to the person was clearly justiciable, and therefore justiciabilty did not have to be argued.(30) Many of the other issues also fell away.

The legal questions decided in Egan v. Chadwick

As a result of changes in the political substratum of the pleadings, the Court of Appeal was asked to determine two questions only:

  1. Whether the power of the Council to require production of the documents (upheld in Egan v. Willis) included the power to require production of documents for which claims to legal professional privilege or public interest immunity could be made at common law; and

  2. If so, who was to decide whether particular documents fell within the scope of the privilege or the immunity.

The Court held that the Council's power extended to the production of documents to which claims of legal professional privilege and public interest immunity could be made. As a result, the second question did not need to be decided.(31) However, by a 2-1 majority (Priestley JA dissenting) the Court held that the Legislative Council could not compel the production of Cabinet documents.

The political aspect of the litigation also caused the case to conclude on a slightly absurd note. By the time the Court was preparing to hand down its judgment (11 June 1999), a new Parliament had been elected in which the Labor Government controlled both Houses. The political rationale for the litigation had thus evaporated. In his reasons, Spigelman CJ stated that it was not appropriate to make any finding on the validity of a resolution of a House of Parliament which could have no present effect.(32) The other judges must have agreed with this assessment, for the only order made by the Court was to dismiss the proceedings with no order as to costs.(33)

Exploration of the doctrine of responsible government

Prior to the Egan litigation, there existed few judicial statements about the role of responsible government in the constitutions of the Australian States and the Commonwealth. Ample case law supported the general proposition that responsible government had been introduced to the Australian colonies through various mid-nineteenth century enactments(34) and that the Australian constitutions presupposed a system of responsible government.(35) But these propositions had never been explored at any length.

There had been no substantial advance in the definition of responsible government since the famous colonial case of Toy v. Musgrove (1888) in which the Full Victorian Supreme Court refused to define responsible government in the abstract, seeking rather to construe it in the light of 'the history and external circumstances' leading to the enactment of the Victorian Constitution Act.(36) The lack of analysis of responsible government was rectified in 1997 by the High Court's unanimous decision in Lange v. Australian Broadcasting Corporation.(37)

Lange established a number of basic propositions about the character of responsible government and identified specific components of responsible government. This provided a foundation upon which Egan v. Willis and Egan v. Chadwick could build. Although the law in the Egan has been developed in response to the particular constitutional framework of New South Wales, it is of more general significance for all Australian jurisdictions. The combined discussion of responsible government in Lange and the two Egan cases now provides a much fuller picture of the doctrine.

The foundations laid by Lange v. ABC

In Lange, the Court held that the Commonwealth Constitution prescribed a system of representative and responsible government. Lange noted that the effect of responsible government is 'that the actual government of the State is conducted by officers who enjoy the confidence of the people'.(38)

Lange involved consideration of the implied constitutional right of free political speech and the qualified privilege defence to defamation. In this context, the High Court discussed the system of representative government established by the Constitution and its interaction with the system of responsible government. The Lange case's contribution to the law on responsible government was its express identification of sections 6, 49, 61, 62, 64, 83 and 128 of the Commonwealth Constitution as prescribing a system of responsible government.(39)

Section 61 of the Constitution vests Executive power in the Queen and declares it to be exercisable by the Governor-General. This power 'extends to the execution and maintenance of this Constitution, and of the law of the Commonwealth'. Section 64 empowers the Governor-General to appoint ministers to administer the departments of state of the Commonwealth, makes such ministers members of the Executive Council (established under section 62) and requires such ministers to be elected representatives. Section 83 ensures that the legislature controls supply, while section 6 requires that there be a session of the Parliament at least once in every year.

Section 49 'provides the source of coercive authority for each chamber of the Parliament to summon witnesses, or to require the production of documents, under pain of punishment for contempt'.(40) Section 128 provides for the amendment of the Constitution by referendum. The Court stated that these sections must be read in conjunction with those constitutional provisions which establish a system of representative government.(41)

The sections of the Constitution identified in Lange are to be viewed as the means for enforcing the responsibility of the Executive to the Parliament.(42) In the backdrop of this picture, there appear the people:

[The] confidence [of the people] is ultimately expressed or denied by the operation of the electoral process, and the attitudes of the electors to the conduct of the Executive may be a significant determinant of the contemporary practice of responsible government.(43)

There is thus a direct link between a system of representative government and a system of responsible government.(44)

The flexible character of responsible government

The Egan cases have confirmed the view that the system of responsible government presupposed by the constitutions of the Commonwealth and the States is flexible and evolves historically, adapting to the changing circumstances of government.(45) This is consistent with the High Court's acceptance of historical evolution in the constitutional requirement of representative government.(46) The Egan cases also confirm the link between representative government and responsible government.(47)

(a) Historical evolution

The account of historical evolution in the system of responsible government approved by the High Court in the Egan cases might be summarised as follows: The main incidents of responsible government in Britain were established by a process of historical accretion during the course of the eighteenth and nineteenth centuries; many features of the system were the product of historical accident.(48) The practice of Australian colonial government diverged from that of Britain, even in respect of basic components of the doctrine such as ministerial responsibility.(49) The current system of responsible government is also different from that of earlier colonial practice, as it has evolved to accommodate the relatively recent appearance of political parties:

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. 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.(50)

(b) Consequences of the evolutionary view

The recognition of the flexibility and historical mutability of the doctrine is significant for a number of reasons. First, it means that, in seeking to give effect to the doctrine of responsible government in the circumstances of Parliamentary disputes not addressed by the written Constitution, the Court will do so by actively considering the application of the doctrine within the practical context of the contemporary Parliament.(51) This explains why the High Court was prepared to approach the question of the Parliament's implied or inherent powers by reference to the contemporary practices established and maintained by the Legislative Council. It also explains why the Court was prepared to look at the substance of parliamentary politics in order to see how the requirements of responsible government would be met in a Parliament where the Executive controlled only the lower House.(52)

Secondly, recognition of the flexibility of responsible government also entails an acceptance that the requirements of the doctrine may be satisfied by a variety of different administrative arrangements for the conduct of government. As will be indicated below, Egan v. Willis affirmed the Court's recognition of non-Parliamentary techniques of Executive accountability to the Parliament and the electorate.(53) This is likely to have important consequences when the court comes to assess 'contracting-out' arrangements and private sector-style techniques of corporate accountability against the principle of responsible government.

Thirdly, the Egan cases confirm that the judiciary is more likely to recognise the doctrine of responsible government as a resource for constitutional interpretation rather than as a direct source of rights that may be enforced by the courts.(54) Sometimes this is captured by classifying responsible government3/4 or its better known components such as ministerial responsibility3/4 as 'conventions' rather than 'laws'.(55) The important distinction however, is that between the use of the doctrine to interpret rights and obligations otherwise conferred and the use of the doctrine to confer rights and obligations.(56) In conformity with the preference for a flexible and non-prescriptive doctrine, the court's clear preference is for the 'recognition' approach.

The functions of parliament within a system of responsible government

The judicial analysis of the functions of parliament in Egan v. Willis and Egan v. Chadwick focused on the specific incidents of the Constitution Act 1902 (NSW), an instrument which differs in significant respects from the Constitutions of the other Australian States and that of the Commonwealth. A detailed analysis of the judicial construction of specific sections of the NSW Constitution is beyond the purpose of this paper. One general observation may nevertheless be made about the High Court's description of the functions of parliament within a system of responsible government: The Court identified two key Parliamentary functions-law making and the reviewing of the Executive's conduct in accordance with the principles of responsible government. (57)

(a) Parliament's scrutiny function

All members of the High Court recognised the interdependence of the legislative and the scrutiny functions of parliament. Some judges spoke of the 'immediate interrelation' of the two functions.(58) Others stated that if the Legislative Council was to carry out one of the primary functions of a legislative chamber, it must be entitled to seek information concerning the administration of public affairs and finances.(59)

Recognition of parliament's scrutiny function establishes the centrality of the institution of Parliament for the operation of responsible government:

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'. 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'. It has been said of the contemporary position in Australia that, while '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 the accountability of government activity is the very essence of responsible government'. In Lange v. Australian Broadcasting Corp, 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'.(60)

The pre-eminence of Parliament's scrutiny function within the doctrine of responsible government forms the intellectual basis for the decision in both Egan v. Willis and Egan v. Chadwick. It supports a broad construction of Parliament's power to call for documents and the weighing of Parliament's need to be informed against the need for confidentiality in the public interest.

(b) The scope of Executive conduct under scrutiny

The Egan decisions also confirmed that the court would adopt a broad approach in interpreting the scope of Executive activity brought under the scrutiny of Parliament. The High Court majority in Egan v. Willis repeated the statement of the Court in Lange that:

[T]he 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 British Steel v. Granada Television [1981] AC 1096 at 1168, Lord Wilberforce said that it was by these reports that effect was given to '[t]he legitimate interest of the public' in knowing about the affairs of such bodies.(61)

McHugh J also adopted a broad formulation by stating that Parliament must have access to 'information relating to public affairs and public finances which is in the possession of the government of the day'.(62)

In Egan v. Chadwick, Priestley JA went one step further, by implying that the expenditure of public money provided a criterion for the boundaries of executive activity subject to the scrutiny of Parliament. Priestley JA stated that the Executive is always bound to act in the 'public interest' and regarded the expenditure of public money as underpinning the exercise of all Executive activity:

The entire conduct of the administration of the laws by the Executive is only possible by the use of people employed, in one way or another, by the Executive and by the use of assets of one kind or another, which may be publicly or privately owned but which in the latter case must be paid for. Every act of the Executive in carrying out its functions is paid for by public money.(63)

This pronouncement strengthens the position of the Auditor-General and Parliamentary Committees such as the Senate's Finance and Public Affairs Committee within the overall framework of responsible government.

Specific parliamentary components of responsible government

The flexibility of the doctrine of responsible government has meant that its precise components will never be subject to precise definition.(64) Kirby J remarked that 'the notion of 'responsible government' must be used with care in legal reasoning-it is 'a political epithet rather than a definition which specifies the precise content of constitutional requirements'.(65) Nevertheless, the High Court and the New South Wales Court of Appeal took the opportunity to comment on some of the more recognised components of the contemporary system of responsible government.

(a) Ministerial responsibility

Earlier scholarship on the requirements of responsible government at the level of the Commonwealth generally moved from the same sections of the Constitution identified in Lange in order to state that responsible government in Australia reflects at least the following propositions:(66)

  1. Ministers have to be members of Parliament.

  2. Ministers require a majority in the popular House of the Parliament to hold office.

  3. Parliament can be dissolved before the expiration of its maximum term.(67)

  4. Public servants must have different tenures from their ministers.

The Egan cases addressed and confirmed the first two propositions:

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.(68)

In Egan v. Chadwick, the court accepted the conventional distinction between individual and collective ministerial responsibility.(69) Individual ministerial responsibility, refers to the minister's accountability to Parliament, under which the minister is held liable, in a political sense, for the conduct of policy within his or her department or portfolio and the acts or omissions of officials within it.

Collective ministerial responsibility was not adequately defined. One aspect of it must be taken to reflect proposition (2) above3/4 i.e. that it is the shared responsibility of the ministry as a whole to accept that its tenure as a government is conditional upon the confidence of the House.(70) This proposition was not labelled as 'collective responsibility' by the court.

The court focused on another aspect of collective responsibility that restricted to the proposition about responsibility for the decisions of Cabinet and the secrecy of Cabinet documents. Spigelman CJ referred to W. E. Hearne's discussion of the collective responsibility of Cabinet for its decisions:

It is a ... consequence of (the) corporate character or the Cabinet that the responsibility which attaches to the acts of any member extends to the whole body. As the individual member by his silence in public ratifies and adopts the measures which although against his wishes have been adopted by the whole Cabinet, so the collective Cabinet is responsible for the official acts of its separate members.(71)

It will be seen that this understanding of the collective responsibility of ministers for Cabinet decisions formed the basis of the majority's decision regarding the confidentiality of Cabinet documents.(72)

Spigelman CJ also remarked that the role of ministerial responsibility as a component of responsible government 'is not diminished in its force by the fact that the principle has not always been observed'.(73) This must be taken as an acknowledgment of the weakness of ministerial responsibility as a means of ensuring the accountability of the Executive to the Parliament.(74)

(b) Parliament's information gathering powers

The approach in Lange and the Egan cases establishes an account of responsible government which is potentially broad enough to encompass the totality of Parliament's formal relationship with the Executive.(75) If the logic of the Court's analysis is followed, the system of responsible government manifests itself in all formal instruments which Parliament may use to inform itself about, and exercise influence over, the affairs of the Executive. These instruments would include Parliamentary inquiries(76) and Parliamentary Committees. In the case of the Commonwealth Parliament, this would include such bodies as the Joint Committee of Public Accounts, the Senate's legislative Committees and the Committee on Finance and Public Administration.(77) The institution of Question Time was also noted.(78)

As will be seen below, the character of parliamentary powers and privileges will be influenced by the constitutional environment of the particular parliament.(79) In the context of the Commonwealth Parliament, Lindell has drawn an express distinction between the legal obligations and restrictions which frame Parliament's inquisitorial jurisdiction granted under section 49 of the Commonwealth Constitution and 'responsible government' which he interprets as a vaguer set of rules.(80) As a distinction between types of rules, this distinction still stands. But after the Egan cases, it is clear that (i) these powers and privileges must be viewed as a central component of the system of responsible government under the Commonwealth Constitution and (ii) that ambiguities in the interpretation of the section 49 jurisdiction are to be interpreted in the light of the doctrine of responsible government.

Extra-parliamentary components of responsible government

The Executive has come to dominate the Parliament in most modern Westminster systems. The corresponding decline in the power of the Parliament over the Executive has created a new emphasis upon extra-parliamentary means by which the Executive may be made accountable to the electorate.(81)

This development must be seen in the context of a jurisprudential shift3/4 actual or imagined3/4 in Australian constitutional theory from a theory of parliamentary supremacy to a theory of popular sovereignty.(82) Under a theory of popular sovereignty, the Executive is responsible to Parliament and Parliament is responsible to the people. Such a theory can accommodate more readily than a theory of parliamentary supremacy new methods for the direct accountability of the Executive to the people.

By advancing a broad theory of responsible government, the High Court has located a number of these extra-parliamentary accountability techniques either within the system of responsible government or, at the very least, alongside it. Egan v. Willis confirms this approach:

In Australia, s 75(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 ...'(83)

The same approach would also locate within, or alongside, the system of responsible government, bodies such as the New South Wales Independent Committee Against Corruption, Queensland's former Electoral and Administrative Review Commission and Western Australia's Royal Commission into Commercial Activities of Government and Other Matters.(84)

At the Commonwealth level, the precise relationship between the Auditor-General and Parliament remains unclear.(85) But the broad approach of Egan v. Willis would probably accommodate the activities of the Auditor-General within the system of responsible government.(86) However, the Court has stopped short of adopting the theory that Parliament and the Executive are to be held to exercise power under a 'public trust'.(87)

Responsible government within a bicameral parliamentary system

Both the High Court and the Court of Appeal understood the conflict in the Egan cases in pragmatic political terms. The courts acknowledged that the conflict between the Executive and the Legislative Council could be viewed as a struggle between a lower House controlled by the Executive and an upper House not so controlled.(88) This characterisation allowed for some judicial exploration of the particular problems presented by responsible government in a bicameral representative system. Two matters merit attention:

  • the resolution of conflicts between the two Houses of Parliament produced by one chamber's opposition to a resolution of the other performed in pursuit of responsible government
  • the argument that the Executive's responsibility for the pursuit of government is only owed to the lower House.

(a) Conflict between the Houses

The Egan litigation indicates that the resolution of conflicts between the Houses of Parliament will hinge on the particular constitutional environment of the Parliament. The issue of conflict between the Houses was raised as the question whether one House of Parliament (in this case, the upper House) could compel the production, to that House, of documents in the possession of a Minister sitting in the other House (in this case, the lower House). The issue did not need to be decided in either Egan v. Willis or Egan v. Chadwick, as Mr Egan was a member of the House which requested him to produce documents in his possession. Moreover, the issue of attendance by a member of another House of New South Wales Parliament was addressed by statute.(89) The majority judgment therefore left the question unanswered:

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.(90)

Similar statements were made by Kirby and Callinan JJ.(91)

In the Commonwealth Parliament, 'stand-off' situations are only partly regulated by Standing Orders of the Senate and the House of Representatives which provide a procedure for compelling the attendance, in one House, of a member of the other House. The essence of these procedures is that:

If House A wishes to compel the attendance of Maria Papadopoulos, a member of House B, House A will request House to pass a resolution compelling Papadopoulos to attend in House A.(92)

The Clerk of the Senate has advised that the Senate is unable to compel directly the attendance, in the Senate, of a member of the House of Representatives.(93) The High Court appears to have confirmed one of the constitutional premises of this advice by stating (i) that ministers may sit in either chamber; (ii) that ministers are subject to scrutiny-by the chamber in which they sit-in respect of the Executive's conduct; and (iii) that the minister's subjection to scrutiny in the chamber in which he or she sits is not altered by the fact that the fate of administration is not determined in this chamber.(94)

Nevertheless, it is too early to ascertain the precise position of the High Court on the autonomy of the Houses from one another. The autonomy of the Houses appears to be the de facto position; the High Court might simply accept this aspect of parliamentary practice if it is asked to determine the issue. For the time being, the likely result of a resolution of House A to compel Maria Papadopoulos to attend that chamber would be a valid resolution of House A, but a resolution which would be incapable of execution.

Conflicting resolutions of two Houses regarding the production of documents are likely to be resolved by political means.(95) Commenting on the situation under the New South Wales Constitution, Spigelman CJ noted:

No doubt, the lower House could pass a resolution forbidding any Minister delivering the documents to the upper House. Indeed it could require delivery to the lower House. It is not appropriate to speculate what, if any, legal remedy may be available to resolve any stalemate between the Houses.(96)

Lindell has commented on this factual scenario as follows:

The likelihood of the Senate ignoring a claim to privilege advanced by the government of the day must be classed as much greater [than in the House of Representatives] when, as is usually the case, government is unable to obtain a majority in that chamber. Presumably, the only weapon a government could use to dissuade the Senate pressing its claims to information claimed to be privileged would be the threat of a double dissolution of the Parliament if the conditions for such a dissolution were satisfied or, but perhaps less effectively, a prorogation of the Parliament or a dissolution of only the House of Representatives.(97)

Despite the broad-ranging discussion in Egan v. Willis, the resolution of conflicts between the Houses of Parliament by means other than a dissolution of either or both Houses remains an open question. It is nevertheless clear that such a conflict cannot be resolved by an argument that responsibility is owed to the lower House of Parliament alone. Indeed, as will be suggested below, the High Court's recognition of (i) the independence of each House in the performance of its scrutiny functions and (ii) the existence of the political party system, might suggest the possibility of a resolution of this question based on a broader principle.

(b) The argument for responsibility to the lower House alone

It will be recalled that Mr Egan defended, before the Legislative Council, his refusal to produce documents to the Council by stating that the Executive owed its responsibility to the lower House alone.(98) If accepted, this argument would provide the Executive with a formidable shield from Parliamentary demands for the production of documents. Party discipline in a lower House dominated by the Executive would ensure that only a resolution by the lower House need be respected by the Executive. Naturally, such a resolution could only be made by the lower House if it commanded the support of the Executive. This argument was rejected in the Egan cases.

The argument has some force in constitutional environments where the upper House is not elected, for example in the context of the British House of Lords, or that of the colonial forerunners of some State Upper Houses.(99) Arguments have occasionally been put that the Australian Senate is owed no responsibility, or less responsibility, by the Executive. The argument is put either (i) on the basis that the intention of the framers was to reflect the British convention which required no responsibility of the Executive to an unelected upper House(100) or (ii) on the basis that the Senate is less representative than the House of Representative because it is elected through a system based on the representation of the political units of the federation, rather than upon the direct representation of all Australian electors.(101)

Both the High Court and the New South Wales Court of Appeal advanced a broad theory of responsible government as the means by which the Executive was held accountable to Parliament (rather than a specific chamber). This was accompanied by an acknowledgment that representative government was the basis for the election of both chambers of the New South Wales Parliament. In this context, the fact of the Executive's dominance of the lower House could not be ignored in Egan v. Willis:

The administration of which the appellant is a member did not, at any material time, enjoy the support of a majority in the Legislative Council. ... the appellant suggested that this circumstance strengthened his position in the case. However, this 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 superintendance of the conduct of the executive branch of government, at least in its association with the legislative function of that House.(102)

Indeed, the High Court went much further by suggesting that the Executive's lack of control of the upper House may in fact enhance the Parliament's ability to 'watch and control' the exercise of executive government.(103)

Spigelman CJ's rejection of the lower House exclusive responsibility argument in Egan v. Chadwick was even more forceful, as it acknowledged the possibility of historical evolution in the position. Spigelman CJ suggested that there may have been some ambiguity at the beginning of the century as to whether responsibility was owed to both Houses or merely to the lower House.(104) His Honour was no doubt referring to the difficulty created by the fact that many of the colonial Upper Houses were not popularly elected. But this argument for lower House exclusive responsibility could not be reconciled with the more recent decisions in Egan v. Willis and Lange. The latter case had expressly canvassed the 'means for reinforcing the responsibility of the Executive to the organs of representative government.'(105)

It is interesting to speculate whether the strong support given to the independent function of each House in its scrutiny of the Executive's activity might produce a basis for a solution where the court is asked to determine a minister's obligations under conflicting resolutions of the two Houses of Parliament (the Papadopoulos hypothetical considered above). If the doctrine of responsible government provides the framework within which Parliamentary action must be interpreted and from which silences in the written constitution can be resolved, it may be possible to argue that such a conflict must be resolved in favour of the general enhancement of Parliament's scrutiny functions. The argument would be that the court should uphold the resolution which requires the production of the documents to Parliament. Such an approach is consistent with the judicial view that the contemporary system of responsible government must accommodate the presence of the political party system.(106)

But the more likely result is that the court would retreat to a safer political position in which it would employ the doctrine of justiciability(107) to prevent it from answering such a difficult and controversial question.

The position of intergovernmental bodies

In the past, some doubt has attended the position of intergovernmental bodies created by a combined exercise of the legislative powers of various Australian Parliaments, or by the combined exercise of executive powers (e.g. Corporations Law companies limited by guarantee formed by Federal and State ministers acting as members of the corporation). These practices have been criticised as distorting the doctrine of responsible government, but are accepted as a necessary compromise within a federal system of government.(108) The High Court has reaffirmed its acceptance of:

federal and State cooperative legislative schemes involv[ing] 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.(109)

This permissiveness presumably extends to international intergovernmental bodies.(110)

Justiciability of parliament's powers and privileges

One of the peculiarities of the Egan v. Willis litigation was that at the level of the Court of Appeal, the parties agreed that the questions before the Court were justiciable. This agreement was then disturbed in the High Court by one of the intervening parties, the State of South Australia.(111) The justiciability issue therefore became an issue before the High Court and notwithstanding its late entry, the issue had a considerable impact on the Court's determination of the case. The High Court dicta on justiciability are, in some respects, inconsistent.

The traditional principle regarding the jurisdiction of the courts to declare the powers, privileges and immunities of the Commonwealth Parliament was stated in R v. Richards; Ex parte Fitzpatrick and Browne (1955):(112) it is for the courts to judge the existence in either House of Parliament of a privilege, but given an undoubted privilege, it is for the House to judge the occasion and the manner of its exercise.

This basic proposition was upheld in both Egan v. Willis and Egan v. Chadwick,(113) but there was considerable variance in its application to the facts. Four different judicial positions to the justiciability issue emerged from the case. A preliminary issue considered by all members of the Court in Egan v. Willis was the effect of Article 9 of the Bill of Rights (1688).

The effect of Article 9 of the Bill of Rights

Article 9 of the Bill of Rights (1688) is preserved by statute in various Australian jurisdictions.(114) The Article provides:

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.(115)

Article 9 might be read as affecting the justiciability of matters arising in the course of parliamentary debates and proceedings. In turn, this might influence the judicial construction of the powers and privileges of the Parliaments of both the States and the Commonwealth. At the Commonwealth level, the issue is complicated by the interaction of section 49 of the Commonwealth Constitution and section 16 of the Parliamentary Privileges Act 1987 (Cwth) which preserves Article 9.(116)

In the High Court, Gaudron, Gummow and Hayne JJ indicated that the intention of the relevant NSW statute was that the constitutional norms prescribed by Article 9 should apply in New South Wales. Yet the precise manner in which these norms would apply-in New South Wales or any other Australian jurisdiction-must remain an open question, as Article 9 was enacted for the English Parliament and not in contemplation of any of the Australian legislatures. These judges engaged in some speculation on the point:

[T]he 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 reference 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. These are questions that need not be addressed in this case.(117)

The judges acknowledged several High Court authorities as indicating that the Bill of Rights embodied a general constitutional principle recognised in a number of State jurisdictions as well as the Commonwealth.(118) McHugh J also cited these authorities to support his statement that in New South Wales, the Bill of Rights 'merely confirms the common law'.(119) All four judges avoided the need to provide a more detailed account of how they would reconcile the requirements of Article 9 with their differing views of the justiciability of parliament's powers and privileges (Positions 3 for Gaudron, Gummow and Hayne JJ; and Position 4 for McHugh J).

A similar pattern emerges in Callinan J's reasoning. Callinan J remarked that Article 9 provided an indication that the proceedings of the New South Wales Parliament should not be subject to review by the courts.(120) Yet His Honour immediately expounded a position which considered matters of justiciability as presenting no barrier to the court's jurisdiction (Position 1).

Kirby J proceeded by giving a restricted scope to Article 9 regarding the court's ability to review parliamentary proceedings. This provided one of the bases for an expansive view of the court's jurisdiction over parliamentary powers and privileges (Position 2). Kirby J noted that Article 9 of the Bill of Rights (1688) had never presented a barrier to justiciability in other cases involving colonial and post-colonial legislatures. It should therefore be accepted that courts have generally proceeded on the correct assumption that Article 9 did not apply by its terms or had to be adapted to the context of a parliament other than the Westminster Parliament.(121)

The High Court's analysis of the effect of Article 9 on the justiciability question is far from clear. Kirby J was alone in attempting to reconcile the effect of Article 9 with his position on justiciability. This lack of clarity may produce unexpected results if the Court is to consider the effect of Article 9 in the more complex constitutional environment created under section 49 of the Commonwealth Constitution.(122)

The four positions on justiciability of parliamentary powers and privileges which have emerged from Egan v. Willis may now be examined.

Position 1: Justiciability presents no barrier to the court's jurisdiction

Callinan J averted to the issue of justiciability.(123) But in proceeding to consider the Parliament's powers and privileges without hesitation, His Honour dismissed any barrier that justiciability may otherwise have presented to the consideration of such matters. It is unclear why Callinan J adopted this position, given the evident concern expressed by other members of the Court as to the basis of the court's jurisdiction.

Position 2: Justiciability supported by the nature of the federal polity

Kirby J noted the court's traditional reticence to become involved in matters of parliamentary privilege. The causes of this were attributed to observance of the traditional principle and the judicial 'disinclination to be ... dragged into the political controversies which commonly attend the conduct of business within the Houses of Parliament'.(124) Kirby J nevertheless rejected the broad argument for non-justiciability on a number of bases.

The first basis was put through a distinction between questions which are 'legal' (justiciable) and questions which are 'political' (non-justiciable). From this distinction it was concluded that:

To designate all matters having political or partisan implications as non-justiciable would be to withdraw judicial supervision (and the rule of law) from an intolerably broad class of conduct. It would lead to a conclusion that a mere claim of privilege by a House of Parliament expelled the courts from holding whether the privilege, in law, exists. And that is not the law.(125)

This argument may lead to a broadly acceptable conclusion, but its premise is weak, as no convincing basis is offered for the distinction between 'legal' and 'political' questions. The distinction simply begs the question. An earlier distinction drawn between 'the right to prove the occurrence of parliamentary events and the prohibition on questioning their propriety' cannot discharge the burden of justification.(126)

The second basis for Kirby J's approach to justiciability was provided by a reading down of Article 9 of the Bill of Rights.(127) This argument, though important, provides only a subsidiary justification for rejecting the non-justiciability argument.

The third-and perhaps the most substantive-basis for Kirby J's expansive approach to justiciability is provided by an argument for the basis of constitutional review deriving from the nature of the Australian federation:

Courts in this country, at least in the scrutiny of the requirements of the Constitution, have generally rejected the notion that they are forbidden by considerations of parliamentary privilege, or of the ancient common law of parliament, from adjudging the requirements of the Constitution. While it is true that Australian courts will ordinarily permit parliamentary procedures to be completed before they intervene, the power of intervention by the courts cannot be seriously doubted. It is the nature of a federal polity that it constantly renders the organs of government, federal and State, accountable to a constitutional standard. State parliaments in Australia, whatever their historical provenance, are not colonial legislatures. They are provided for in the Australian Constitution. To this extent, at least, they are rendered accountable to the constitutional text. ... Federation cultivates the habit of mind which accompanies constitutional superintendence by the courts.(128)

This argument is as novel as it is surprising. If the federal polity argument were adopted by the High Court, it would enlarge the jurisdiction of State and federal courts over parliamentary action. It is true that the Constitutions of the States are recognised by the Commonwealth Constitution(129) and, in certain contexts, must be read alongside the Commonwealth Constitution.(130) As a generalisation, it is reasonable to suggest that judges deciding a State constitutional question within a federal system are likely to be mindful of other components of the system. Nevertheless, as Kirby J recognised in another part of his judgment, a judge must be circumspect in drawing constitutional implications about such matters from the federal framework.(131)

Kirby J cited some authority in support of the justiciability of issues of parliamentary privilege.(132) But no authority3/4legal or historical3/4was cited for the argument from the 'nature of a federal polity' or the federal 'habit of mind' which is offered as the justification for an expanded basis for the judicial review of parliamentary action under the constitutions of both the States and the Commonwealth. The argument was not addressed by other members of the High Court. It is unlikely that such an argument would gain acceptance by a majority of the Court. Yet it might reappear in Kirby J's future reasoning on the scope of judicial review.

On the specific issue of the propriety of the Court of Appeal's consideration of the application in Egan v. Willis, Kirby J noted that as none of the parties had suggested that the issues were not justiciable, the Court of Appeal could not be criticised for having proceeded as it did.(133)

Position 3: Justiciability conditional upon determination of general law rights or obligations

As indicated above, Gaudron, Gummow and Hayne JJ adopted the view that the existence of a Parliamentary power or privilege was not an issue which the court could be asked to decide independently of a controversy arising under the general law.(134) Thus, in Egan v. Willis, the jurisdiction of the court was attracted because the court was asked to consider the question of justified trespass. These judges were critical of the Court of Appeal's attempt to declare the Parliament's powers in the abstract.(135)

A similar approach appears to have been taken by the New South Wales Court of Appeal in Egan v. Chadwick. Priestley JA treated the assault claim as the relevant nexus for the justiciability of the issues in that case-'[t]he only cause of action which made [Mr Egan's] claim securely justiciable was the assault alleged'.(136) The other members of the Court of Appeal did not perceive any justiciability hurdle to the exercise of their jurisdiction.

Position 4: Matters arising within the Parliament are not justiciable

As noted above, McHugh J's dissent in Egan v. Willis was based on a finding that the issues were not justiciable. McHugh J stated that it was:

for the Council, and the Council alone to determine the facts of the case and whether they fell within the privilege or power to suspend for obstruction. Upon those questions, the resolution of the House was conclusive. There was no need, therefore, for the Court of Appeal to determine whether the functions of the Council were such that reasonable necessity entitled it to demand the production of the papers. Indeed, I have real difficulty in seeing how the Court of Appeal had jurisdiction to determine the issue, an issue which after all concerns only the relationship between the House and one of its members and the internal administration of the business of the House.(137)

McHugh J's position is not entirely clear. In one part of the judgment, it is held that Article 9 of the Bill of Rights merely confirms the common law position that matters affecting the internal administration of the House of Commons are outside the jurisdiction of the common law courts. (138) English authority is cited to this effect.(139) Yet in another part of the judgment, McHugh J adopts a position indistinguishable from that of Gaudron, Gummow and Hayne JJ (i.e. Position 3):

It is one thing for [the Supreme Court of New South Wales], as an incident in determining whether the respondents have committed trespass against the appellant, to determine whether the resolution was valid. It is another matter altogether to make a formal declaration which is binding on the parties for all purposes including their conduct in the House divorced from the exercise of any rights cognisable in a court of law.(140)

The first circumstance is said to be justiciable, the second is said to be non-justiciable. Given that at least one of the issues in the appeal was the trespass issue, McHugh J's finding that the Supreme Court had considered non-justiciable matters appears unconvincing.

Adding to this confusion is McHugh J's remark that the question of justiciability would be answered differently under the Commonwealth Constitution:

No doubt there are cases-those arising under the federal Constitution for example-where a court is compelled to make a formal declaration concerning the internal affairs of a legislative chamber. But, as a general rule, courts should eschew making such declarations even when the validity is incidental to the determination of the plaintiff's legal rights.(141)

It is difficult to interpret this remark. It might be taken as attributing significance to section 49 of the Commonwealth Constitution and the Parliamentary Privileges Act 1987 (Cwth); but the nature of this significance is left unstated. Alternatively, it might refer to rulings in which the High Court has held that steps taken by the legislative chambers under the double dissolution procedure (section 57 of the Commonwealth Constitution) are justiciable.(142) It is an open question whether McHugh J's position on justiciability is compatible with the Court's ability to exercise jurisdiction regarding the validity of a law enacted in the exercise of an extra-ordinary law-making power conferred upon Parliament in its role as 'guardian of the Constitution'.(143)

Notwithstanding his characterisation of the major issues in the case as being non-justiciable, McHugh J provided an extensive discussion of the powers and privileges of the Legislative Council. This was apparently motivated by a desire to correct previous judicial declarations that the powers and privileges of the Australian colonial legislatures are less than those possessed by the British House of Commons, decisions upon which the appellant relied in order to argue that the Council's resolutions were beyond its power.(144) McHugh J's statements must be taken as persuasive (rather than binding) on the issue of the correctness of these prior declarations of the content of parliamentary powers and privileges.(145) They are nevertheless curious, as they are a judicial discussion of non-justiciable matters that might influence a future ruling.

Conclusion on justiciability

The diversity of judicial views on the justiciability issue, and the difficulties of positions 1, 2 and 4, indicate that the issue is likely to confound the High Court for some time into the future. But this level of confusion and complexity would not surprise previous students of the subject.(146)

The dominant position in the High Court is likely to continue to be Position 3, which states that the justiciability of parliamentary powers and privileges is conditional upon the determination of a general law right or obligation. This position offers an acceptable compromise between judicial deference to Parliament's conduct of affairs within its chambers and the need to examine parliamentary conduct where necessary to do so for the enforcement of the general law.

Judicial construction of parliamentary powers and privileges-General Principles

Once the threshold question of justiciability has been answered in favour of the court's jurisdiction, a further question arises as to how the court is to construe parliament's functions, powers and privileges. The Commonwealth Parliament and most State Parliaments have passed parliamentary privileges legislation.(147) Egan v. Willis indicates that the difference in the statutory position will create differences in the way each Parliament's functions and powers are construed.

In jurisdictions with a statutory regime, such as the Commonwealth, the construction of the powers and privileges of Parliament will be based on the interaction of the Constitution and the parliamentary privileges legislation. Common law principles will be used as a resource in the interpretation of constitutional and statutory provisions. The variation in the constitutional environment of each jurisdiction will produce differences in the declaration of parliamentary functions and powers.

New South Wales has no parliamentary privileges legislation. Therefore, in Egan v. Willis, the nature and extent of parliamentary privileges and powers was addressed by examining the common law. Some members of the High Court also considered the potential effect of the Commonwealth Constitution and the Australia Act 1986 (Cwth).

The common law test of reasonable necessity

A majority of the High Court stated the test as to the existence of a power to be that of 'reasonable necessity'. Gaudron, Gummow and Hayne JJ stated that the purported power must be reasonably necessary to the existence of the relevant body and the proper exercise of the functions which it is intended to execute.(148) Callinan J expressed the same view.(149) Application of this test hinges on the way the court construes the particular function performed by the relevant House of Parliament. In keeping with the flexibility of the doctrine of responsible government, reasonable necessity must be understood in an historical context:

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.(150)

Kirby J must also be taken to have adopted the reasonable necessity test;(151) but his formulation was more expansive:

The relevant limits [to the implied powers of Parliament] are those which arise from the nature of the chamber as a House of Parliament and the lawful performance of its functions, including its legislative functions of rendering the Executive Government accountable, through it, to the parliament and the electors of the state'.(152)

Throughout his judgment, Kirby J emphasised the need to construe the character of the particular legislative chamber by reference to the convention established in Australian legislative chambers rather than their British and colonial antecedents.

Dissenting from the majority, McHugh J also appeared to have accepted the reasonable necessity test, but interpreted the test very differently:

A legislative chamber relying on 'reasonable necessity' must show that it would be impossible, in the absence of the power asserted, to carry out the relevant function and that therefore that power is impliedly 'supplied by necessary intendment'(153)

McHugh J's standard of 'impossibility' raises the bar of the reasonable necessity test. It would be insufficient for the proponent of the power to suggest that such a power would assist in the fulfilment of the function, or be a convenient or administratively reasonable means to fulfil the function.(154) McHugh J claimed that if the power to demand the tabling of papers arose by implication from the need to exercise the Council's functions, it would support powers of search and seizure which would interfere or erode fundamental rights and the freedom of ministers.(155) This higher standard appears to be at odds with the recognition by other members of the Court and McHugh J himself, that Parliament's ability to examine Executive conduct is one of the most important aspects of a system of responsible government.(156)

The effect of the Australia Act 1986 (Cwth) and the Commonwealth Constitution upon State Constitutions

Some members of the New South Wales Court of Appeal in Egan v. Willis attributed significance to the Australia Acts and the Commonwealth Constitution in their construction of the powers and privileges of the New South Wales Parliament.(157) Broadly speaking, the effect of these arguments was to suggest that any construction of the powers and privileges of the legislature ought accommodate the post-colonial and post-federation status of the legislature achieved through these instruments. Gaudron, Gummow and Hayne JJ avoided comment on the issue in Egan v. Willis by finding that these instruments did not diminish the powers and privileges of the State Parliaments.(158)

McHugh J rejected the suggestion that the Australia Act or the Commonwealth Constitution changed the basis for the implied powers of the NSW Parliament. Parliamentary powers could not be implied merely because they were 'appropriate' to the organs representative of a democratic society.(159) In particular, McHugh J rejected the argument that the legislature's functions had been altered by the Australia Act.(160)

The opposite approach was taken by Kirby J:

[I]n giving content to the criteria of essentiality and reasonable necessity it is important to keep in mind that the legislative body whose status and functions are the touchstone for the determination is one significantly different from the chamber of a colonial legislature. It is a component of a system of representative and responsible government established by the Australian Constitution for a free, independent, democratic and federal nation. It must therefore be apt to an independent legislative body which enjoys, under that Constitution, plenary legislative powers-now released from earlier historical limitations [n: Australia Act 1986 (Cth), ss 1, 2 and 3 ...](161)

In the absence of further comment, it is difficult to predict how the High Court might decide this point in future cases.

The interpretation of Commonwealth parliamentary privileges

The judicial construction of the Commonwealth Parliament's functions, powers and privileges must take into account the particular powers given to the Parliament under Chapter I of the Constitution and the underlying principles of the particular system of responsible and representative government established by that Constitution.

Section 49 of the Constitution provides that, until declared by the Parliament, '[t]he powers, privileges, and immunities of the Senate and the House of Representatives .. shall be those of the Commons House of Parliament of the United Kingdom ... at the establishment of the Commonwealth'. These privileges and immunities included those stated in Article 9 of the Bill of Rights 1688.(162) With the enactment of the Parliamentary Privileges Act 1987 (Cwth), these privileges and immunities, as in force under section 49, were continued except to the extent that they were modified by the Act.(163) In this constitutional environment, Parliament's powers and privileges must be determined by considering the interaction of the Constitution and the parliamentary privileges legislation.(164) The court is only likely to use the common law test of 'reasonable necessity' as an interpretative resource in circumstances where the Constitution and the legislation are silent.

There has been long-standing uncertainty about the precise meaning of section 49 of the Constitution and the constitutional validity of certain sections of the Parliamentary Privileges Act.(165) Obiter comments in Egan v. Willis only heighten this uncertainty.

Academic commentators have indicated that section 49 of the Constitution and the powers conferred under Article 9 of the Bill of Rights (1688) might have to be reinterpreted to accommodate the doctrine of the separation of powers under the Commonwealth Constitution. In particular, it is argued that the broad interpretation given to the Parliament's powers to punish contempt of its procedures-whether these powers are regarded as direct, or only enforceable through a court upon issue of a warrant-may involve an invalid conferral of the judicial power of the Commonwealth upon the Parliament.(166) Other arguments have been raised against the constitutional validity of the Parliamentary Privileges Act, in particular subs 16(3) of that Act, which restricts the tendering of statements, submissions and comments made in the course of Parliamentary 'proceedings'.(167) Enid Campbell recently canvassed the following bases for constitutional invalidity of subs 16(3):(168)

  • that the subsection offends an implied constitutional limitation on the ability of the legislature to limit the exercise of the federal judicial power
  • that the use of the incidental legislative power of the Commonwealth (Constitution s 51(xxxix) offends the principle that the means selected by Parliament to achieve a permissible object must be reasonably and appropriately adapted to that end
  • that the subsection offends the implied constitutional freedom of political communication.

In Egan v. Willis, some members of the Court indicated cautiously that section 49 of the Constitution, the Parliamentary Privileges Act and the authority of R v. Richards; Ex parte Fitzpatrick and Browne,(169) introduced different considerations from those warranted by the NSW Constitution.(170) Kirby J went even further, stating expressly that the decision in Fitzpatrick and Browne might have to be reconsidered in the future:

In Ex parte Fitzpatrick and Browne ... this Court held that neither the structure of the Constitution providing separately for the judicature, nor its provisions, required a reading down of s 49 of the Constitution defining the privileges of the two Houses of the Federal Parliament in terms of those of the House of Commons of the Parliament of the United Kingdom. That aspect of the decision in Ex Parte Fitzpatrick and Browne may one day require reconsideration. But it is not required in this case.(171)

Kirby J then made express reference to the question whether Parliament's power to punish contempt of its inquisitorial procedures was in fact a legislative or a judicial power. This issue is addressed below.(172)

These non binding comments would indicate that the High Court might be ready to reconsider the law defining the privileges of the Commonwealth Parliament. But with the exception of Kirby J, there is insufficient indication of the position that the High Court would adopt in such a case.

Parliament's privileges in relation to documents

Egan v. Willis established that the NSW Legislative Council had the power to call for the production to the Council of documents in the possession of Ministers. But it left open the question whether this power extended to the production of documents which would be protected from disclosure on the grounds of (a) legal professional privilege or (b) public interest immunity. This question was decided in Egan v. Chadwick.

The common law and the Constitution

In addressing the issues of legal professional privilege and public interest immunity, the NSW Court of Appeal affirmed an important premise of Australian jurisprudence that the common law was antecedent to the operation of the various Australian constitutions and continues to flow alongside them.(173) This reasoning premise is important, because both rights claimed are rights at common law. The reasoning premise explains why the court will look to the common law in order to give content and context to aspects of constitutional law upon which the written Constitution is silent or inadequate.(174)

Legal professional privilege

The Court's analysis of legal professional privilege hinged on the characterisation of the relationship between Mr Egan and the Parliament as a 'special relationship' governed by public law principles.(175) This characterisation precluded the basis and the usual rationale for the privilege.

The Court applied the orthodox understanding that the rationale for legal professional privilege is the facilitation of representation of clients by legal advisers and the fostering of trust and candour between client and lawyer.(176) It also acknowledged the fundamental nature of these rights, noting that only 'unmistakably clear language' could deprive a claimant of this privilege.(177)

Spigelman CJ refused the claim for legal professional privilege by holding that the special nature of the accountability relationship between the Executive and Parliament-as it was recognised in Egan v. Willis-trumped the common law rights which legal professional privilege would otherwise accord. Thus:

In performing its accountability function, the Legislative Council may require access to legal advice on the basis of which the Executive acted, or purported to act. In many situations, access to such advice will be relevant in order to make an informed assessment of the justification for the Executive decision. In my opinion, access to legal advice is reasonably necessary for the exercise by the Legislative Council of its functions. (178)

It will be observed that Spigelman CJ's analysis also applies the method and test established in Egan v. Willis: the relevant function of the Legislative Council is identified (Parliament's scrutiny of the Executive) and then it is asked whether the particular power or privilege is 'reasonably necessary' for the performance of that function.(179)

Priestley JA proceeded in a similar manner. Yet as indicated above,(180) this analysis of Executive functions went one step further, by noting that the expenditure of public money underscores executive activity. Upon this view:

[e]very document for which the Executive claims legal professional privilege or public interest immunity must have come into existence through an outlay of public money, and for public purposes.(181)

On this view, the expenditure of public money provides an additional ground for bringing documents produced by the Executive under Parliamentary scrutiny. It is interesting to speculate whether this ground would extend to documents which are brought into the possession of the Executive but are not produced by it. The basis for denying legal professional privilege for such documents would be an acknowledgment of the special relationship of accountability between the Executive and Parliament.

Public interest immunity

In a claim for legal professional privilege the court does not need to weigh competing public interests. This process has already been conducted by the law, leaving the court to assess whether the documents fall into the requisite category or not. By contrast, a claim for public interest immunity might require such a weighing. Public interest immunity is not absolute.(182)

The divergence of opinion as to the precise weighing effected by the court in Egan v. Chadwick ought cause no surprise. Judges will differ in their view of the relative importance of the matters to be weighed. Of greater interest however, is the fact that the different judicial results disclose a difference of principle.

Priestley JA analysed the weighing process as a balancing of conflicting public interests.(183) Spigelman CJ rejected this analysis, stating that '[t]he test is whether disclosure is inconsistent with the principles of responsible government'.(184) Priestley JA's approach emphasises the general principle of responsible government whereas Spigelman CJ's approach emphasises the role of specific components(185) of the system of responsible government, namely ministerial responsibility. The potential for such a divergence of judicial methodology has been noted elsewhere.(186) Meagher JA's brief concurring judgment made no statement of principle.

(a) The ministerial responsibility approach (Spigelman CJ)

The foundation of Spigelman CJ's approach was the concern for the appropriateness of the court's entry into the weighing process. In essence, Spigelman CJ's ruling on public interest immunity was driven by his view of the justiciability(187) of the issue:

Where the public interest to be balanced involves the legislative or accountability functions of a House of Parliament, the courts should be very reluctant to undertake any such balancing. This does not involve a constitutional function appropriate to be undertaken by judicial officers. This is not only because judges do not have relevant experience, a proposition which may be equally true of other public interests which they are called upon to weigh. It is because the Court should respect the role of a House of Parliament in determining for itself what it requires and the significance or weight to be given to particular information.(188)

Spigelman CJ reasoned that if the test of 'reasonable necessity' to the functions of the Council were applied outright, this might result in the disclosure of information which may harm the public interest. Balancing these two concerns, Spigelman CJ held that it was not reasonably necessary for the proper exercise of the Council's functions to call for the production of documents which 'would conflict with the doctrine of ministerial responsibility, either in its individual or collective dimension'.(189)

Spigelman CJ's ratio presents some difficulty due to the breadth of the statement concerning individual and collective ministerial responsibility. If the term 'collective responsibility' is taken to refer to the convention of Cabinet secrecy and the convention that all members of Cabinet accept responsibility for Cabinet's decision,(190) then there is a workable rule which states that public interest immunity can be claimed in respect of Cabinet documents. This aspect of the ratio is addressed below.(191) However, insofar as the ratio applies to documents to which individual ministerial responsibility might attach, the rule loses its precision. It would be possible for a Minister to claim that a rather large class of documents falls within the compass of his or her responsibility to the Parliament. This aspect of the ratio was not clarified in the case(192) and is likely to produce difficulty in the future.

(b) The responsible government principle approach (Priestley JA)

Priestley JA's analysis is consistent with his expansive view of Parliament's function of examining the Executive's conduct and the analysis of public immunity claims as a weighing process between public interests. Comparing the weighing process to that required in cases of privileges asserted in the context of trial, Priestley JA noted that:

It is more difficult to understand how interests can be weighed against one another when the contestants are the New South Wales Executive and the Upper House of the New South Wales Parliament; they may be opposed in a political sense but they are not opposed either in a legal sense or one analogous to that applicable in all the cases so far where public interest immunity has been held to exist.(193)

However, Priestley JA acknowledged that the weighing process would have to accommodate the fact that the subject matter of the claim was government information rather than information about a citizen. The clear suggestion was that a greater public interest might be served in the disclosure of information that would keep the community informed about public affairs and promote their discussion.(194)

Though both Spigelman CJ and Priestley JA were united in declaring the right of the House to determine questions of this nature, Priestley JA ultimately resolved the issue by reference to the principle of responsible government, rather than its specific manifestations:

... notwithstanding the great respect that must be paid to such incidents of responsible government as cabinet confidentiality and collective responsibility, no legal right to absolute secrecy is given to any group of men and women in government, the possibility of accountability can never be kept out of mind, and this can only be to the benefit of the people of a truly representative democracy.(195)

The divergence of judicial methodology manifested itself in different rulings on the case of Cabinet documents.

The special case of cabinet documents: a divergence of opinion

Priestley JA's adoption of high principle led to the position that no document produced by the Executive could be shielded from public view.(196) The only qualification to this view, was that cases involving Cabinet documents would require the Council to balance the competing public interests with 'the highest degree of circumspection'.(197)

By contrast, Spigelman CJ and Meagher JA regarded the immunity of Cabinet documents as complete. This majority held that the Legislative Council could not compel the production of such documents without subverting the system of responsible government. Therefore, Cabinet documents could never be produced unless released by Parliament.(198) Spigelman CJ relied heavily on the ratio of Commonwealth v. Northern Land Council which made the confidentiality of Cabinet documents the sine qua non of the principle of collective ministerial responsibility.(199) In Commonwealth v. NLC, the High Court majority reached its decision notwithstanding that, on the facts of the case, the Council had resolved that no Cabinet document would become available to a member of the Council.(200)

Support for the majority's position may also be found in obiter comments made in Egan v. Willis by Callinan J who referred to Sir Ivor Jennings' two-fold rationale for the confidentiality of Cabinet documents.(201) Jennings reasoned, firstly, that a Cabinet decision is advice to the monarch, whose consent is necessary for its publication. And secondly, that the practical reason that Cabinet discussion must be free so that compromises could be reached without the risk of publicity for every statement made and every point given away.

The definition of 'Cabinet documents'

The High Court decision in Commonwealth v. Northern Land Council left a very inadequate definition of Cabinet documents. That case ruled that documents which recorded the actual deliberations of Cabinet or a committee of Cabinet were subject to public interest immunity. The High Court acknowledged that 'documents prepared outside Cabinet, such as reports or submissions, for the assistance of Cabinet ... are often referred to as Cabinet documents',(202) but it expressed no view as to whether such documents could be brought within the ratio of the case.

Little advance was made on this position in Egan v. Chadwick. Spigelman CJ merely noted that 'documents prepared outside Cabinet for submission to Cabinet may, or may not, depending on their content, manifest a similar inconsistency' with the principle of collective ministerial responsibility.(203)

Revision of Senate and Commonwealth Executive practice?

In general, the policy of the Senate, as well as that of other Australian upper Houses, has been to resist pressing a claim for access to a particular document if it could be persuaded that the release of that document was not (on balance) in the public interest. Thus Odgers' Australian Senate Practice remarks:

Because governments have usually complied with orders for the production of documents, the question of what the Senate might do if it considered that the government had without due cause refused to produce a document has not been fully answered. The question remains whether the Senate, to punish the government for not producing a document, would be prepared to resort to more drastic measures than censure of the government, such as refusing to consider government legislation. It is also open to the Senate to treat a refusal to table documents as a contempt of the Senate: it is a contempt to disobey without reasonable excuse a lawful order of the Senate (see Resolution 6 of the Privilege Resolutions of 26 February 1988, paragraph (8) ...(204)

As a result of Egan v. Chadwick, the Senate may be more inclined to continue its practice of refusing claims of legal professional privilege without evidence of extenuating circumstances. The decision clearly strengthens the Senate's political and legal position in relation to government claims of legal professional privilege. Thus, it is more likely that the Senate would not withdraw a claim to a document merely on the ground that the Executive has stated that the document claimed contains legal advice or correspondence relating to such advice.

In light of the decision, official government guidelines in relation to the production of government documents to the Senate and its committees might have to be revised.(205) A claim by the Executive that the release of a document is contrary to the public interest does not conclude the issue of immunity. Furthermore, although the Government's Legal Practice Advice concludes that the concept of legal professional privilege has no formal application in the parliamentary arena, both the Witness Guidelines and the Legal Practice Advice suggest that material subject to legal professional privilege may also come within the public interest immunity.(206) This is directly at odds with Egan v. Chadwick.

The facts of Egan v. Chadwick also indicate that despite the increased willingness of the Executive to resort to the courts in such situations, conflicts between Parliament and the Executive are far more likely to find a political rather than a legal resolution. Litigation is only likely to be used in extreme situations. At a practical level, the Egan cases may not have changed much about the way parliaments conduct their business. Furthermore, there is still an unresolved issue as to whether parliament has the power to punish a contempt of its proceedings.

Parliament's powers to compel or punish

The facts of Egan v. Willis and Egan v. Chadwick did not require the court to resolve the nature of the parliament's powers to compel compliance with its resolutions or punish contempt of its orders. For the purposes of the Egan litigation, all parties had accepted that a House of the New South Wales Parliament had the power to suspend one of its members.(207) The difficulty that arose on the margins of the case was whether the New South Wales Legislative Council had the power to enforce the suspension, given the divergence of authorities regarding the powers of the English Parliament, the Commonwealth Parliament and the colonial legislatures.(208) This issue is likely to re-emerge in future cases.

Gaudron, Gummow and Hayne JJ did not express a concluded view on whether the Council could punish a member who disobeyed its resolutions or merely coerce or inducing compliance from that member. Their Honours appeared to doubt the distinction-expressed in several of the earlier authorities(209)-between punishment and inducing compliance:

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.(210)

Nevertheless, these judges emphasised that they had expressed no opinion as to whether the Council could order Mr Egan to appear in order to explain his and the Government's failure to comply with the Council's order.(211) Callinan J noted the general issue, but expressed no further opinion on it.(212)

By contrast, McHugh J accepted a distinction between the House's power to require the production of information and the power to enforce the orders. McHugh J stated the common law position as follows:

According to current doctrine, the Houses of the New South Wales legislature lack the power to punish for contempt. Absent statutory backing, they have no power to compel a witness to attend parliament or to produce documents and no power to punish a person who refuses to produce those documents. But that is quite different from saying that they have no power to obtain information relevant to the business of the House. The power and its enforcement are distinct matters ...(213)

Kirby J adopted an intermediate position, acknowledging the difficulty of drawing a distinction between legitimate coercion and punishment, yet enforcing the distinction. This translated to a finding that Mr Egan's day-long suspension and the application of minimum physical force to remove him from the parliamentary precinct did not amount to punishment.(214) The suspension order was therefore within the House's power, but '[d]ifficult questions might arise where a longer or indefinite suspension or expulsion was attempted'.(215) This approach might be criticised for being too arbitrary-it provides no clear rule for determining when a suspension is to be regarded as punishment.

The lack of clarity regarding the punitive capacities of a legislative chamber is disheartening. This is more the case when it is considered that the problem might require a different resolution in the case of the Commonwealth Parliament than it does in the case of State Parliaments.

At the Commonwealth level, section 4 of the Parliamentary Privileges Act and subsequent resolutions of the Houses delimit those matters that may constitute contempt. Section 7 of the same Act confers specific powers of enforcement on both Houses of the Australian Parliament, including the power to impose fines. Section 9 of the Act requires that a warrant committing a person to custody set out the particulars of the matters determined to constitute the breach of privilege. The Standing Orders and resolutions of both the Senate and the House of Representatives also reflect this position. The sixth of the eleven resolutions agreed by the Senate on 25 February 1988 provides that:

A person shall not, without reasonable excuse, disobey a lawful order of the Senate or of a committee.

....

A person shall not, without reasonable excuse:

  1. refuse or fail to attend before the Senate or a committee when ordered to do so;

  2. refuse or fail to produce documents, or allow the inspection of documents, in accordance with an order of the Senate or of a committee.(216)

It has been noted above(217) that the stricter separation of judicial and legislative powers under the Commonwealth Constitution might compel a reinterpretation of section 49 of the Constitution. This might result in a declaration that a parliamentary power to punish a contempt of parliamentary proceedings might amount to an invalid vesting of the judicial power of the Commonwealth in the Parliament.(218) This argument may have acquired some force from Kirby J's view that the decision in R v. Richards; Ex parte Fitzpatrick and Browne(219) might have to be reconsidered in the future:

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).(220)

The view of other members of the Court on this point is unknown.(221)

Powers over persons not members of the House

The possibility that a person who is not a member of the House could be compelled to attend the House or produce documents to it was only addressed in non binding comments by the High Court in Egan v. Willis. This question is relevant to at least five classes of person:

  1. Members of Parliament sitting in a House of a bicameral Parliament other than the House which has called for the documents.

  2. Former members of either House of Parliament.

  3. Public servants and statutory office holders.

  4. Directors and other employees of incorporated government companies who are not public servants.

  5. General members of the public.

The position in respect of each category of persons will differ according to the particular constitutional environment. In the present context, it is useful to consider how the Egan cases might affect the practice of the Commonwealth Parliament in this regard. For convenience, the position with respect to the Senate is considered briefly.(222)

The Parliamentary Privileges Act 1987 (Cwlth) and the Senate's own Privileges Resolutions(223) regulate some of the procedure regarding witnesses to the Senate and its Committees and the protection of such witnesses. Public servants and statutory office holders are regarded as having no particular immunity in respect of giving evidence before the Senate and its committees (category 3).(224) As a matter of practice, former members of Parliament have appeared before the Senate and its Committees both voluntarily and in response to summonses (category 2).(225) After some resistance, the directors of the Board of the Commonwealth Bank at a time when it was an incorporated company in which the Commonwealth Government held shares, agreed to appear before a Senate Committee (category 4).(226)

Members of the public (category 5) may be summonsed to appear before the Senate, but it is rare for the Senate to order attendance of a witness as a refusal to give evidence is equally rare.(227) As a result, the precise position on procedures relating to persons falling into category 5 is unclear.(228) Earlier authority which confirms the capacity of the House of Representatives to issue a judicially enforceable warrant to commit a private person for contempt of the House must now be reconsidered in light of the effect of the Parliamentary Privileges Act 1987 (Cwth) upon the powers and privileges given to Parliament under section 49 of the Commonwealth Constitution. (229)

In Egan v. Willis, the High Court only passed obiter comment on the general position regarding members sitting in the other parliamentary chamber (category 1) and general members of the public (category 5). Category 1 has been discussed above.(230) In respect of category 5, various members of the Court expressed that 'different' considerations would apply to those in the case of a member of the House.(231) However, McHugh J expressed strong views as to the ability of the Legislative Council to compel the production of documents from private persons:

I cannot accept that the functions of the Council confer an implied power to compel ordinary citizens to produce documents to it.(232)

This view of the law may have been compelled by McHugh J's particular rendition of the 'reasonable necessity' test.(233)

It is arguable that the expansive notion of responsible government advanced in Egan v. Willis(234) affirms the capacity of the Houses of the Commonwealth Parliament may call persons falling into all five categories to give evidence and respond to resolutions for the production of documents. But the capacity of the House to punish a refusal by a non-member may be affected by the constitutional difficulty which attends the character of the Parliament's jurisdiction to punish contempt of its procedures.(235)

Conclusion

The Egan cases have canvassed important issues relating to the powers and privileges of the Australian legislative chambers and the jurisdiction of courts to declare the content of such powers and privileges. In the process, the court has provided a much clearer picture of the system of responsible and representative government which the constitutions of the Australian States and the Commonwealth presuppose.

The court has enunciated rules of reasonable clarity for the resolution of claims by the Executive for legal professional privilege and public interest immunity. But there is considerable confusion in the court's approach to the justiciability of parliamentary powers and privileges, the status of Article 9 of the Bill of Rights (1688) and the ability of the parliament to punish contempt of its proceedings. There is also a faint indication that the High Court might be willing to reinterpret section 49 of the Commonwealth Constitution. This might affect the validity of all, or parts of, the Parliamentary Privileges Act 1987 (Cwlth).

Endnotes

  1. Barrister, Law Program, Research School of Social Sciences at The Australian National University.

  2. Egan v. Willis [1998] HCA 71; 158 ALR 527.

  3. Egan v. Chadwick [1999] NSWCA 176.

  4. Readers with a less detailed knowledge of parliamentary law and parliamentary privilege are referred to the respective short summaries prepared by the House of Representatives and the Senate: House of Representatives, Factsheet, No.5, 'Parliamentary Privilege', and Senate, Senate Brief No.11, 'Parliamentary Privilege'.

  5. Constitution Act 1902 (NSW), ss 22B as amended by the Constitution (Legislative Council) Amendment Act 1991 (NSW), Egan v. Willis [1998] HCA 71; 158 ALR 527, [9].
  6. Legislative Council: Constitution Act 1902 (NSW), ss 22A and Sch 6. Cf Legislative Assembly: Constitution Act 1902 (NSW), Pt 3 Div.3 (ss 23-33).

  7. Cf Parliamentary Privileges Act 1987 (Cwlth).

  8. Constitution Act 1975 (Vic), s 19, Constitution Act 1934 (SA), s 38, Constitution Act 1867 (Qld), s 40A; Parliamentary Privileges Act 1891 (WA), Parliamentary Privilege Act 1858 (Tas).

  9. Constitution Act 1902 (NSW), s 35E.

  10. Egan v. Willis [1998] HCA 71; 158 ALR 527, [20], Egan v. Willis (1996) 40 NSWLR 650, 654-5.

  11. Egan v. Willis [1998] HCA 71; 158 ALR 527, [20], Egan v. Willis (1996) 40 NSWLR 650, 654-5.

  12. Cabinet Minute No 382 (29 April 1996) 'Tabling of Papers-Lake Cowal Goldmine' cited in Egan v. Willis [1998] HCA 71, 158 ALR 527, [117].

  13. New South Wales Parliamentary Debates (Council) 1 May 1996, quoted by Gleeson CJ in Egan v. Willis and Cahill (1996) 40 NSWLR 650, 656.

  14. This statement of facts is drawn from Egan v. Willis [1998] HCA 71, 158 ALR 527, [119].

  15. Egan v. Chadwick [1999] NSWCA 176, [49].

  16. Egan v. Willis [1998] HCA 71, 158 ALR 527, [161] (Kirby J), Egan v. Chadwick [1999] NSWCA 176, [118] (Priestley JA).

  17. Egan v. Willis and Cahill (1996) 40 NSWLR 650.

  18. See above.

  19. Egan v. Willis and Cahill (1996) 40 NSWLR 650, 671, Egan v. Willis [1998] HCA 71; 158 ALR 527, [6].

  20. Egan v. Willis [1998] HCA 71; 158 ALR 527, [6] (Gaudron, Gummow, Hayne JJ), cf [111] (McHugh J).

  21. Egan v. Willis [1998] HCA 71, 158 ALR 527, [7].

  22. Egan v. Willis [1998] HCA 71, 158 ALR 527, [25].

  23. Egan v. Willis [1998] HCA 71, 158 ALR 527, [25]-[26], [30].

  24. Egan v. Willis [1998] HCA 71, 158 ALR 527, [123].

  25. Egan v. Willis [1998] HCA 71, 158 ALR 527, [61].

  26. Egan v. Willis [1998] HCA 71, 158 ALR 527, [59], [78], [80].

  27. Egan v. Willis [1998] HCA 71, 158 ALR 527, [59].

  28. Egan v. Chadwick [1999] NSWCA 176, [149], [109].

  29. See above.

  30. Egan v. Chadwick [1999] NSWCA 176, [109]-[110].

  31. See Priestley JA's analysis of the second issue: Egan v. Chadwick [1999] NSWCA 176, [111]-[112], [144]-[155].

  32. Egan v. Chadwick [1999] NSWCA 176, [94].

  33. Egan v. Chadwick [1999] NSWCA 176, [95], [147], [155].

  34. P. D. Finn, Law and Government in Colonial Australia (1987), 39ff; Windeyer, J Ward, 'The Responsible Government Question in Victoria, South Australia and Tasmania, 1851-1856' (1978) 63 Journal of the Royal Australian Historical Society 221.

  35. Commonwealth: Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, 557-9, 561. See also: Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd (1920) 28 CLR 129, 146-8, Commonwealth v. The Colonial Combing, Spinning and Weaving Co Ltd ('the Wooltops case') (1922) 31 CLR 421, 446-51, Commonwealth v. Kreglinger & Fernau Ltd (1926) 37 CLR 393, 411-15, Federal Commissioner of Taxation v. Munro (1926) 38 CLR 153, 185, Victorian Stevedoring and General Contracting Co Pty Ltd v. Dignan (1931) 46 CLR 73, 114, Australian Communist Party v. Commonwealth (1951) 83 CLR 1, 221-2, R v. Kirby; Ex parte Boilermaker's Society of Australia (1956) 94 CLR 254, 275, Commonwealth v. Queensland ('the Queen of Queensland case') (1975) 134 CLR 298, 333-4, Attorney-General (Commonwealth); Ex rel McKinlay v. Commonwealth (1975) 135 CLR 1, 24, New South Wales v. Commonwealth (the 'Seas and Submerged Lands case') (1975) 135 CLR 337, 364-5, FAI Insurances Ltd v. Winneke (1982) 151 CLR 342, 364-5, Nationwide News v. Wills (1992) 177 CLR 1, 71-2, Australian Capital Television v. Commonwealth (1992) 177 CLR 106, 230, 231.

    States: Toy v. Musgrove (1888) 14 VLR 349 (FC), Ryder v. Foley (1906) 4 CLR 422, 432-3, Williams v. Attorney-General for New South Wales (1913) 16 CLR 404, 459-60, Theodore v. Duncan [1919] AC 696, 706 (PC), New South Wales v. Bardolph (1934) 52 CLR 455, 509, 517.

  36. Toy v. Musgrove (1888) 14 VLR 349, especially 386-7 (Higinbotham J).

  37. (1997) 189 CLR 520.

  38. Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, 559. This phrase has been attributed to Sir Samuel Griffith, Notes on Australian Federation: Its Nature and Probable Effects (1896), 17. See also Australian Capital Television v. Commonwealth (1992) 177 CLR 106, 230.

  39. Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, 557-9.

  40. Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, 558-9.

  41. The sections identified were: Constitution, ss 1, 7, 8, 13, 24, 25, 28 and 30 discussed in ibid at 557-8, 560-1.

  42. Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, 558, 559.

  43. Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, 559.

  44. See also Australian Capital Television v. Commonwealth (1992) 177 CLR 106, 230, 231 (McHugh J), Nationwide News v. Wills (1992) 177 CLR 1, 71-2 (Deane & Toohey JJ); L Zines, The High Court and The Constitution (4th edn, 1997), 10-11, 373, and C. Birch, Representative and Responsible Government (1964), 17.

  45. Egan v. Willis [1998] HCA 71; 158 ALR 527, [37]-[41], [99], [139]-[141], [152]. Egan v. Chadwick [1999] NSWCA 176, [17]-[19]; [31]-[33]. Cf G. Lindell, 'Responsible Government' in P. D. Finn ed., Essays on Law and Government: Volume 1 (1995), Ch 4, 80-82, J. Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament (1998), Ch 3 and C. Mantziaris, 'Ministerial directions to statutory corporations: What does a theory of responsible government deliver?' (1998) 26 Federal Law Review 309, 343-4.

  46. Cf McGinty v. Western Australia (1996) 186 CLR 140 and J. Goldsworthy, 'Originalism in Constitutional Interpretation' (1997) 25 Federal Law Review 1.

  47. Egan v. Willis [1998] HCA 71; 158 ALR 527, [42], [51], [91], [96]-[99], [133], [140]-141], [152]-[154], [157]; Egan v. Chadwick [1999] NSWCA 176, [130]-[142].

  48. Egan v. Chadwick [1999] NSWCA 176, [32].

  49. Egan v. Willis [1998] HCA 71; 158 ALR 527, [41], [133], [94]-[99], [138]-[139]. Cf Toy v. Musgrove (1888) 14 VLR 349, P. D. Finn, Law and Government in Colonial Australia (1987) 111-13, 86-91, 160-5. J Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament (1998), 77-81.

  50. Egan v. Willis [1998] HCA 71; 158 ALR 527, [38] (references omitted).

  51. See above.

  52. See above.

  53. See above.

  54. Egan v. Chadwick [1999] NSWCA 176, [10], [43]-[47], [152]. This accords with the approach taken in Commonwealth v. Kreglinger & Fernau Ltd (1926) 37 CLR 393, 411-15 and Commonwealth v. Queensland ('the Queen of Queensland case') (1975) 134 CLR 298, 333-4.

  55. Egan v. Chadwick [1999] NSWCA 176, [44]-[45], C. R. Munro, 'Laws and Conventions Distinguished' (1975) 91 LQR 218, 228, 229-31.

  56. G. Lindell, Responsible Government' in P. D. Finn ed., Essays on Law and Government3/4 Volume 1 Principles and Values (1995), Ch 4, 80-85ff.

  57. Constitution Act 1902 (NSW), s 5, Law-making: Egan v. Willis [1998] HCA 71; 158 ALR 527, [49], [52], [100], [146]-[149], [178], [191]. Scrutiny of the executive: Egan v. Willis [1998] HCA 71; 158 ALR 527, [42], [45]-[46], [100]-[103], [105]-[107], [153]-[155], [191].

  58. Egan v. Willis [1998] HCA 71, 158 ALR 527, [47] (Gaudron, Gummow and Hayne JJ).

  59. Egan v. Willis [1998] HCA 71, 158 ALR 527, [103] (McHugh J), [150], [154]-[155] (Kirby J), [194] (Callinan J).

  60. Egan v. Willis [1998] HCA 71, 158 ALR 527, [42] (references omitted), See also [46]-[47].

  61. Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, 561 cited, in part, in Egan v. Willis [1998] HCA 71; 158 ALR 527, [42]. Some of the ambiguities in the passage from Lange are explored in C. Mantziaris, 'Interpreting Ministerial Directions to Statutory Corporations: What does a theory of responsible government deliver? (1998) 26 Federal Law Review 309, 336-7.

  62. Egan v. Willis [1998] HCA 71; 158 ALR 527, [102]. See also [103], [104].

  63. Egan v. Chadwick [1999] NSWCA 176, [135].

  64. See e.g., G. J. Lindell, above n, 76-9; G Winterton, above n, 71ff; L. Zines, above n, 249-51, R. S. Parker, 'Responsible Government in Australia' in P. Weller and D. Jaensch eds, Responsible Government in Australia (1981), 11-22, H. Emy, 'The Public Service and Political Control: The Problem of Accountability in a Westminster System with Special Reference to the Concept of Ministerial Responsibility' in Royal Commission on Australian Government Administration Appendix, vol 1 (1976), 16.

  65. Egan v. Willis [1998] HCA 71, 158 ALR 527, [152].

  66. G. Lindell, 'Responsible Government' in P D Finn ed., Essays on Law and Government: Volume 1 (1995), 75, 76-9 reworking RS Parker's definition in 'Responsible Government in Australia' in P. Weller and D. Jaensch eds, Responsible Government in Australia (1981), ibid. Lindell did not place emphasis on the effect of section 49 cf G. J. Lindell, 'Parliamentary Inquiries and Government Witnesses' (1995) 20 Melbourne University Law Review 383.

  67. Lindell noted that several Australian jurisdictions have either adopted (e.g. New South Wales), or are proposing to adopt, fixed-term parliaments.

  68. Egan v. Willis [1998] HCA 71, 158 ALR 527, [45]. See also [155].

  69. Egan v. Chadwick [1999] NSWCA 176, [38]-[42].

  70. J. Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament (1998), 194.

  71. Egan v. Chadwick [1999] NSWCA 176, [42], citing W. E. Hearne, The Government of England (1867), 180.

  72. See above.

  73. Egan v. Chadwick [1999] NSWCA 176, [45].
  74. Cf D. Woodhouse, Ministers and Parliament: Accountability in Theory and Practice (1994), Ch 2, R. Brazier, Ministers of the Crown (1997), 262-75, J. Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament (1998), 194ff, C. Turpin, 'Ministerial Responsibility: Myth or Reality?' in J. Jowell & D. Jaensch eds, The Changing Constitution, (2nd edn, 1989) 53, 56, and S. E. Finer, 'The Individual Responsibility of Ministers' (1956) 54 Public Administration 377.
  75. See The foundations laid by Lange v. ABC, The functions of parliament within a system of responsible government and Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520, 557-9.
  76. Cf E. Campbell, 'Parliament and the Executive' in L. Zines ed., Commentaries on the Australian Constitution (1977), 90ff and G. J. Lindell, 'Parliamentary Inquiries and Government Witnesses' (1995) 20 Melbourne University Law Review 383, 400-1.

  77. J. Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament (1998) ch 8; M. Aldons, 'The Growth of Parliamentary Committees of the House of Representatives and Joint Committees' (1991) 6(1) Legislative Studies 6 and K. Sibraa, 'Senate Committees and Responsible Government' (1991) 5(2) Legislative Studies 32.

  78. Egan v. Willis [1998] HCA 71; 158 ALR 527, [104]-[105] (McHugh J), [154] (Kirby J).

  79. See below in respect of the Commonwealth Parliament.

  80. G. Lindell, 'Parliamentary Inquiries and Government Witnesses' (1995) 20 Melbourne University Law Review 383, 400-1.

  81. For example D. Kinley, 'The Duty to Govern and the Pursuit of Accountable Government in Australia and the United Kingdom' (1995) 21 Monash University Law Review 116 and '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.

  82. See generally L. Zines, The High Court and the Constitution (4th edn, 1997), 393-7 and G. Winterton, 'Popular Sovereignty and Constitutional Continuity' (1998) 26 Federal Law Review 1.

  83. Egan v. Willis [1998] HCA 71; 158 ALR 527, [42]. Section 75(v) of the Constitution confers ('original') jurisdiction upon the High Court '[i]n all matters-[I]n which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth'. The importance of this jurisdiction has been evidenced recently in the area of immigration law, where refugees denied judicial review of administrative decisions under the Migration Act 1958 (Cwlth) have invoked the High Court's jurisdiction under section 75(v): see the facts of Abebe v. The Commonwealth; Re Minister for Immigration and Multicultural Affair [1999] HCA 14.

  84. Cf D. 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, 425.

  85. J. Uhr, above 188-90 and Commonwealth Parliament, Joint Committee of Public Accounts, The Auditor-General: Ally of the People and Parliament (Report No 296, 1989) ch 5.

  86. Cf Commonwealth v. Colonial Combing, Spinning & Weaving Co Ltd ('the Wooltops case') (1922) 31 CLR 421, 447; Hughes Aircraft Systems International v. Airservices Australia (1997) 146 ALR 1, 74-5, 88-9; Western Australia, Royal Commission into Commercial Activities of Government and Other Matters-Report Pt II (1992), para 3.10.1.

  87. Cf P. D. Finn, 'A Sovereign People, A Public Trust' in P. D. Finn ed., Essays on Law and Government-Volume 1 Principles and Values (1995), Ch 1; 'The Abuse of Public Power in Australia: Making Our Governors Our Servants' (1994) 5 Public Law Review 43, 'The Forgotten Trust: the People and the State' in M. Cope ed., Equity: Issues and Trends (1994), ch 5 and D. Kinley, 'The Duty to Govern and the Pursuit of Accountable Government in Australia and the United Kingdom' (1995) 21 Monash University Law Review 116, 128-31.

  88. See also [133, pt 2] (Kirby J).

  89. The Parliamentary Evidence Act 1901 (NSW) requires that the attendance in one House, of members sitting in the other 'be procured in conformity (so far as practicable) with the mode of procedure observed in the British House of Commons'. The Speaker of the House may obtain a warrant for attendance from a Judge of the Supreme Court: ss 5, 7-9. Cf also the procedure set out in Constitution Act 1902 (NSW), s 5B for submission of special measures to the electorate.

  90. Egan v. Willis [1998] HCA 71, 158 ALR 527, [56] (Gaudron, Gummow and Hayne JJ).

  91. Egan v. Willis [1998] HCA 71, 158 ALR 527, [121] (Kirby J), [184] (Callinan J).

  92. For example Senate Standing Orders 178 & 179. See H. Evans ed., Odger's Australian Senate Practice (7th edn, 1995), 443-4.

  93. H. Evans ed., Odger's Australian Senate Practice (7th edn, 1995), 444.

  94. The Court's utterance is rather elliptical: '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 ... The circumstance that ministers are not members of a chamber in which the fate of administration is determined ... does not have the consequence that [this] aspect of responsible government ... does not apply to them': Egan v. Willis [1998] HCA 71, 158 ALR 527, [45], cf [154].

  95. See text accompanying n 16 above, and H. Evans, ed., Odger's Australian Senate Practice (7th edn, 1995), 456.

  96. Egan v. Chadwick [1999] NSWCA 176, [8].

  97. G. Lindell, 'Parliamentary Inquiries and Government Witnesses' (1995) 20 Melbourne University Law Review 383, 399 (references omitted).

  98. See text accompanying nn 12-13 above.

  99. Cf Egan v. Willis [1998] HCA 71, 158 ALR 527, [44].

  100. For example G. Winterton, Parliament, the Executive and the Governor-General (1983), 79.

  101. For example G. Lindell, 'Parliamentary Inquiries and Government Witnesses' (1995) 20 Melbourne University Law Review 383, 399-400.

  102. Egan v. Willis [1998] HCA 71; 158 ALR 527, [10]. See also Kirby J at [152]-[154].

  103. Egan v. Willis [1998] HCA 71; 158 ALR 527, [45], [42].

  104. Egan v. Chadwick [1999] NSWCA 176, [35]-[38]. Cf also Egan v. Willis [1998] HCA 71, 158 ALR 527, [91] (McHugh J).

  105. Lange v. Australian Broadcasting Corporation (1997) 186 CLR 520, 559 (emphasis added), cited in Egan v. Chadwick [1999] NSWCA 176, [37].

  106. See above, text accompanying n 50. But cf Egan v. Willis [1998] HCA 71, 158 ALR 527, [92] (McHugh J) rejecting an argument that a House of Parliament may compel a person who is not a member of the House (see above).

  107. See below.

  108. L. Zines, The High Court and the Constitution (4th edn, 1997), 27-1, G. Winterton, Parliament, the Executive and the Governor-General (1983), 101ff; R. Cranston, 'From Cooperative to Coercive Federalism and Back?' (1979) 10 Federal Law Review 121, 137-141.

  109. Egan v. Willis [1998] HCA 71; 158 ALR 527, [41].

  110. Compare the intergovernmental body considered in Horta v. Commonwealth (1994) 181 CLR 183, which was established under the Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990 (Cwlth) and Article 7 of the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia (11 December 1989). See C. Mantziaris, 'Ministerial directions to statutory corporations: What does a theory of responsible government deliver?' (1998) 26 Federal Law Rev.309, 342-3 cf Hughes Aircraft Systems International v. Airservices Australia (1997) 146 ALR 1, 24 (Finn J).

  111. See Egan v. Willis [1998] HCA 71; 158 ALR 527, [124]-126], [133, pt 2], Egan v. Willis and Cahill (1996) 40 NSWLR 650, 663, 675, 686.

  112. 92 CLR 157, 162

  113. Egan v. Willis [1998] HCA 71; 158 ALR 527, [27], [66], [147], [179] (Callinan J not deciding).

  114. Parliamentary Privileges Act 1987 (Cwlth), s 16, Imperial Acts Application Act 1969 (NSW), s 6, Constitution Act 1867 (Qld), s 40A, Imperial Acts Application Act 1984 (Qld), s 5, Constitution Act 1934 (SA), s 38, Constitution Act 1975 (Vic), s 19, Imperial Acts Application Act 1980 (Vic) Pt II, Div.3, Parliamentary Privileges Act 1891 (WA), s 1. See also Arena v. Nader (1997) 71 ALJR 1604, 1605, R v. Jackson (1987) 8 NSWLR 116, 118.

  115. 1 Wm & Mary Sess 2 c 2.

  116. See below.

  117. Egan v. Willis [1998] HCA 71; 158 ALR 527, [23].

  118. Egan v. Willis [1998] HCA 71; 158 ALR 527, [24], citing Commissioner of Stamps (SA) v. Telegraph Investment Co Pty Ltd (1955) 184 CLR 453, 467, Cam and Sons Pty Ltd v. Ramsay (1960) 104 CLR 247, 258; Lange v. Australian Broadcasting (1997) 189 CLR 520, 562-6 and Commonwealth v. Colonial Combing, Spinning and Weaving Co Ltd ('the Wooltops case') (1922) 31 CLR 421, 463.

  119. Egan v. Willis [1998] HCA 71, 158 ALR 527, [69].

  120. Egan v. Willis [1998] HCA 71, 158 ALR 527, [180] respectively.

  121. Egan v. Willis [1998] HCA 71, 158 ALR 527, [133, pt 2], [134].

  122. See discussion below.

  123. Egan v. Willis [1998] HCA 71; 158 ALR 527, [179]-[180], [183]-[184] (reference to Armstrong v. Budd (1969) 71 SR (NSW) 386).

  124. Egan v. Willis [1998] HCA 71, 158 ALR 527, [122]. See also [124]-[126], [131]-[133].

  125. Egan v. Willis [1998] HCA 71, 158 ALR 527, [133, pt 1].

  126. Egan v. Willis [1998] HCA 71, 158 ALR 527, [133, pt 1]. The distinction between 'legal' and 'political' question is repeated at [134] and [147].

  127. See above.

  128. Egan v. Willis [1998] HCA 71, 158 ALR 527, [133, pt 4] (references omitted).

  129. Commonwealth Constitution, ss 9, 15, 107, 108, 123, 124.

  130. See generally, L. Zines, The High Court and the Constitution, 4th edn, 1997, 336-41, 389-91.

  131. Egan v. Willis [1998] HCA 71; 158 ALR 527, [137].

  132. Egan v. Willis [1998] HCA 71; 158 ALR 527, [133], n 244, citing Osborne v. Commonwealth (1911) 12 CLR 321, Hughes and Vale Pty Ltd v. Gair (1954) 90 CLR 203, Clayton v. Heffron (1960) 105 CLR 214, Cormack v. Cope (1974) 131 CLR 432, Eastgate v. Rozzoli (1990) 20 NSWLR 188.

  133. Egan v. Willis [1998] HCA 71, 158 ALR 527, [121; pt 4], [124].

  134. Egan v. Willis [1998] HCA 71, 158 ALR 527, [5], [25]-[26].

  135. Egan v. Willis [1998] HCA 71, 158 ALR 527, [5]. This concerned the Court of Appeal's declaration upon the validity of Council's resolution of 2 May 1996 paras 2 and (3)(a). This issue was not raised on the appeal to the High Court. See p. *.

  136. Egan v. Chadwick [1999] NSWCA 176, [146].

  137. Egan v. Willis [1998] HCA 71, 158 ALR 527, [79].

  138. Egan v. Willis [1998] HCA 71, 158 ALR 527, [69].

  139. See generally Egan v. Willis [1998] HCA 71; 158 ALR 527, [65]-[70], citing Stockdale v. Hansard (1839) 9 Ad & E 1, 112 ER 1112 and Bradlaugh v. Gossett (1884) 12 QBD 271.

  140. Egan v. Willis [1998] HCA 71, 158 ALR 527, [70]. See also [111].

  141. Egan v. Willis [1998] HCA 71, 158 ALR 527, [111].

  142. Cormack v. Cope (1974) 131 CLR 432, Western Australia v. Commonwealth ('the Territory Senators case') (1975) 134 CLR 201, Victoria v. Commonwealth ('the PMA case') (1975) 134 CLR 81. The authority of these cases is slim. But for a principled defence of their ratio, see L Zines, 'The Double Dissolutions and Joint Sittings' in G. Evans ed., Labor and the Consitution 1972-1975 (1977), 217, 227-30 and compare commentary on Zines's view by G. R. Reid (ibid, 240-3).

  143. Cf comments made by Barwick CJ and Mason J in the double dissolution case of Victoria v. Commonwealth ('the PMA case') (1975) 134 CLR 81, 119, 181-2.

  144. Egan v. Willis [1998] HCA 71; 158 ALR 527, [70].

  145. Egan v. Willis [1998] HCA 71, 158 ALR 527, [70].

  146. See e.g. G. Lindell, 'The Justiciability of Political Questions: Recent Developments' in H. P. Lee and George Winterton eds, Australian Constitutional Prerogatives (1992), Ch 7, G. Marshall, 'Justiciability' in A. G. Guest ed., Oxford Essays in Jurisprudence (1961), Ch 10, and v. Waye, 'Justiciability' in M Harris and v. Waye, eds, Australian Studies in Law: Administrative Law (1991), 47.

  147. See n 8 above.

  148. Egan v. Willis [1998] HCA 71, 158 ALR 527, [31], [48].

  149. Egan v. Willis [1998] HCA 71, 158 ALR 527, [193]-[194].

  150. Egan v. Willis [1998] HCA 71, 158 ALR 527, [50], The Court reviewed a number of colonial authorities: Kielly v. Carson (1842) 4 Moo PC 63; 13 ER 225 (Newfoundland House of Assembly), Fenton v. Hampton (1858) 11 Moo PC 347, 14 ER 727 (Legislative Council of Van Diemen's Land), Doyle v. Falconer (1866) LR 1 PC 328 (House of Assembly of Dominica), Barton v. Taylor (1886) 11 App Cas 197 and the post-federation authority of Willis and Christie v. Perry (1912) 13 CLR 592 (New South Wales Legislative Assembly).

  151. Egan v. Willis [1998] HCA 71, 158 ALR 527, [121, pt 3].

  152. Egan v. Willis [1998] HCA 71, 158 ALR 527, [157].

  153. Egan v. Willis [1998] HCA 71, 158 ALR 527, [81].

  154. Egan v. Willis [1998] HCA 71, 158 ALR 527, [82], [90].

  155. Egan v. Willis [1998] HCA 71, 158 ALR 527, [83].

  156. See above(1)-above(2).

  157. Egan v. Willis & Cahill (1996) 40 NSWLR 650, 659, 664, 685-6, 691-2 addressing, inter alia, Commonwealth Constitution ss 9, 15, 106, 107 and Australia Act 1986 (Cwlth), ss 2, 3, 4.

  158. See Egan v. Willis [1998] HCA 71, 158 ALR 527, [33]-[34]. Callinan J remained silent on the issue.

  159. Egan v. Willis [1998] HCA 71, 158 ALR 527. [89]-[90], See also [85]-[88].

  160. Egan v. Willis [1998] HCA 71, 158 ALR 527, [89].

  161. Egan v. Willis [1998] HCA 71, 158 ALR 527, [140].

  162. R v. Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157; Egan v. Willis [1998] HCA 71; 158 ALR 527, [28]. Article 9 of the Bill of Rights (1688) is discussed above at p. above.

  163. Parliamentary Privileges Act 1987 (Cwlth), s 5.

  164. E Campbell, 'Parliamentary Privilege and Admissibility of Evidence' (1999) 27(3) Federal Law Review (forthcoming).

  165. See most recently the arguments raised in the Queensland Supreme Court in Laurance v. Katter (1996) 141 ALR 447 and in the Privy Council in Prebble v. Television New Zealand Ltd [1995] 1 AC 321 on the status of Article 9 of the Bill of Rights (1688).

  166. See generally: E. Campbell, 'Parliament and the Executive' in L Zines ed., Commentaries on the Australian Constitution (1977) 88, 95, A. Twomey, 'Reconciling Parliament's Contempt Powers with the Constitutional Separation of Powers' (1997) 8(2) Public Law Review 88, and G. Lindell, 'Parliamentary Inquiries and Government Witnesses' (1995) 20 Melbourne University Law Review 383, 386.

  167. Parliamentary 'proceedings' are defined broadly in subs 16(2) of the Parliamentary Privileges Act 1987 (Cwlth) as 'all words spoken and acts done in the course of, or for the purpose of or incidental to, the transacting of the business of a House or of a committee...'

  168. E Campbell, 'Parliamentary Privilege and Admissibility of Evidence' (1999) 27(3) Federal Law Review (forthcoming). See also D. O'Brien, 'Parliamentary Privilege and the Implied Freedom of Speech' (1995) 569 Queensland Law Society Journal 569.

  169. (1955) 92 CLR 157.

  170. Egan v. Willis [1998] HCA 71; 158 ALR 527,[23],[28]-[29]. See text accompanying n above.

  171. Egan v. Willis [1998] HCA 71, 158 ALR 527, [136], See also text accompanying n below.

  172. See 'Parliament's powers to compel or punish'.

  173. Egan v. Chadwick [1999] NSWCA 176, [5], Spigelman CJ citing the High Court's affirmation of Sir Owen Dixon's views on the subject in Lange v. Australian Broadcasting Corporation (1997) 186 CLR 520, 563-4. Cf Sir Owen Dixon, 'The Common Law as an Ultimate Constitutional Foundation' in Woinarski ed., Jesting Pilate (1952), 203, reprinted from (1952) 31 ALJ 240 and L. Zines, 'The Common Law in Australia: Its Nature and Constitutional Significance' (Australian National University Centre for International and Public Law Occasional Papers, Canberra, 1999 forthcoming.).

  174. Cf Egan v. Chadwick [1999] NSWCA 176, [7].

  175. Egan v. Chadwick [1999] NSWCA 176, [80], [84] (Spigelman CJ), [127] (Priestley JA).

  176. Egan v. Chadwick [1999] NSWCA 176, [72]-[74], [120] citing Grant v. Downs (1976) 135 CLR 746, 685, Baker v. Campbell (1983) 153 CLR 52, 66, 118, 119-120, 130, Attorney-General v. Maurice (1986) 161 CLR 475, 487; Commissioner of Australian Police v. Propend Finance Pty Ltd (1997) 188 CLR 501, 543.

  177. Egan v. Chadwick [1999] NSWCA 176, [74], [113].

  178. Egan v. Chadwick [1999] NSWCA 176, [86].

  179. See above 'The functions of parliament within a system of responsible government' and 'The common law test of reasonable necessity'.

  180. See above.

  181. Egan v. Chadwick [1999] NSWCA 176, [135].

  182. Egan v. Chadwick [1999] NSWCA 176, [51], [123]-[125], citing Sankey v. Whitlam (1978) 142 CLR 1, 39, 43, 63-4, 95-6, 98-9 and Commonwealth v. Northern Land Council (1993) 176 CLR 604, 616-8.

  183. Egan v. Chadwick [1999] NSWCA 176, [123]-[129].

  184. Egan v. Chadwick [1999] NSWCA 176, [71].

  185. See discussion above(1) and (2).

  186. See C. Mantziaris, 'Ministerial directions to statutory corporations: What does a theory of responsible government deliver?' (1998) 26(2) Federal Law Review 309, 344-5 commenting on judicial choices made in Hughes Aircraft Systems International v. Airservices Australia (1997) 146 ALR 1.

  187. See above.

  188. Egan v. Chadwick [1999] NSWCA 176, [52].

  189. Egan v. Chadwick [1999] NSWCA 176, [55].

  190. See discussion above.

  191. See below.

  192. Note that Spigelman CJ stated that no conflict with any aspect of 'individual ministerial responsibility' arose in the proceedings: Egan v. Chadwick [1999] NSWCA 176, [71].

  193. Egan v. Chadwick [1999] NSWCA 176, [128].

  194. Egan v. Chadwick [1999] NSWCA 176, [129] citing Commonwealth of Australia v. John Fairfax & Sons Ltd (1980) 147 CLR 39, 52 (Mason J).

  195. Egan v. Chadwick [1999] NSWCA 176, [143].

  196. Egan v. Chadwick [1999] NSWCA 176, [140]-[143].

  197. Egan v. Chadwick [1999] NSWCA 176, [140].

  198. Egan v. Chadwick [1999] NSWCA 176, [69]-[71], [154].

  199. Commonwealth v. Northern Land Council (1993) 176 CLR 604, especially at 614-5.

  200. See above.

  201. Sir Ivor Jennings, Cabinet Government (3rd edn, 1969), 267 cited in Egan v. Willis [1998] HCA 71; 158 ALR 527, [183].

  202. Commonwealth v. Northern Land Council (1993) 176 CLR 604, 614.

  203. Egan v. Chadwick [1999] NSWCA 176, [57], drawing attention to the decisions in Attorney-General v. Jonathon. Cape Ltd [1976 1 QB 752 and Air Canada v. Secretary for Trade [1983] 2 AC 394.

  204. H. Evans ed., Odgers' Australian Senate Practice (7th edn, 1995), 456. See below.

  205. The Commonwealth Government's present policy towards the disclosure of documents to parliamentary committees is outlined in two documents: Government Guidelines for Official Witnesses before Parliamentary Committees and Related Matters, Department of Prime Minister and Cabinet, 1989 ('the Witness Guidelines'); and Legal Practice Briefing No 29, 'Appearing Before Parliamentary Committees', 21 December 1996, produced by the Attorney General's Department ('the Legal Practice Advice').

  206. See n 205 above.

  207. Egan v. Willis [1998] HCA 71, 158 ALR 527, [13].

  208. R v. Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 cf Kielley v. Carson (1842) 4 Moore 63; 13 ER 225.

  209. Barton v. Taylor (1885) 11 AC 197, Willis v. Perry (1912) 13 CLR 592, Armstrong v. Budd [1969] 1 NSWR 649. See generally, A. Twomey, 'Reconciling Parliament's Contempt Powers with the Constitutional Separation of Powers' (1997) 8(2) Public Law Review 88, 90-91, 102.

  210. Egan v. Willis [1998] HCA 71; 158 ALR 527, [55].

  211. The para 3(b) matter: Egan v. Willis [1998] HCA 71; 158 ALR 527, [55]. See above and text accompanying n 20.

  212. Egan v. Willis [1998] HCA 71; 158 ALR 527, [184], [183].

  213. Egan v. Willis [1998] HCA 71; 158 ALR 527, [104].

  214. Egan v. Willis [1998] HCA 71; 158 ALR 527, [159].

  215. Egan v. Willis [1998] HCA 71; 158 ALR 527, [159].

  216. See H. Evans ed., Odgers' Australian Senate Practice (1995), Appendix 2, Resolution 6 'Matters constituting contempts', paras 8 & 13.

  217. See also discussion above.

  218. See A. Twomey, 'Reconciling Parliament's Contempt Powers with the Constitutional Separation of Powers' (1997) 8(2) Public Law Review 88. A similar argument has also been put by Enid Campbell in the context of the constitutional validity of the subs 16(3) of the Parliamentary Privileges Act 1987 (Cwlth): Enid Campbell, 'Parliamentary Privilege and Admissibility of Evidence' (1999) 27(3) Federal Law Review (forthcoming). See discussion above.

  219. (1955) 92 CLR 157.

  220. Egan v. Willis [1998] HCA 71; 158 ALR 527, [136] n 256. Kirby J's footnote accompanies the text which appears at n 171 above.

  221. Cf Egan v. Willis [1998] HCA 71, 158 ALR 527, [28]-[29], especially n 30.

  222. The Senate position is addressed in H. Evans ed., Odgers' Australian Senate Practice (7th edn, 1995), chs 17-18.

  223. 25 February 1988 reprinted in Appendix 2 to H. Evans ed, Odgers' Australian Senate Practice (7th edn, 1995).

  224. H. Evans ed., Odgers' Australian Senate Practice (7th edn, 1995), pp 447-8, 457, 511-12.

  225. ibid, 445.

  226. J. Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament (1998), 201, referring to the Senate Standing Committee on Finance and Public Administration, Report 1993, 77, 91-6, 107-110.

  227. H. Evans ed., Odgers' Australian Senate Practice (1995), 436.

  228. Cf the situation in the British House of Commons: P. M. Leopold, 'The Power of the House of Commons to Question Private Individuals' [1992] Public Law 541.

  229. R v. Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157. But see discussion above.

  230. See also above.

  231. Egan v. Willis [1998] HCA 71; 158 ALR 527, [56], 121], [184].

  232. Egan v. Willis [1998] HCA 71; 158 ALR 527, [93]. See also [82], [62].

  233. See above.

  234. See above.

  235. See above.

 
 

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