Harry Evans: Selected Writings

Papers on Parliament No. 52
December 2009

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Reasonably Necessary Powers: Parliamentary Inquiries and Egan v Willis and Cahill

Harry Evans

In all but one of the jurisdictions of Australia, the houses of the various parliaments, by constitutional or statutory prescription, subject to statutory alteration, possess the powers, privileges and immunities of the British House of Commons, either as at a particular date or for the time being.

The effect of these provisions is to confer upon the houses a set of immunities and powers which were acknowledged by the common law, and which in some instances were embodied in statute, before the maturity of the Australian parliaments. The principal immunity is the freedom of parliamentary proceedings from impeachment or question before any court or other tribunal (enacted in article 9 of the Bill of Rights, 1689), and the principal power is the power to conduct inquiries and, for that purpose, to compel the attendance of witnesses, the giving of evidence and the production of documents and to punish contempts.

The exception is New South Wales, which has no such constitutional or statutory provision. In that state the immunities and powers of the houses depend on a common law doctrine that they possess such immunities and powers as are reasonably necessary for the discharge of their legislative functions. This law, expounded in the context of subordinate colonial assemblies, has been developed with the change in the houses’ status to that of legislatures of a state of an independent federation.[1] The effect of this doctrine is that the houses possess an immunity of their proceedings from impeachment or question seemingly virtually identical to the article 9, Bill of Rights immunity, but no general power to punish contempts, upon which the power to conduct inquiries may be regarded as ultimately dependent. The extent of their other powers is something of a grey area.

Ironically, it is one of the New South Wales houses, seemingly in the weakest position amongst Australian parliaments in relation to powers, which has taken the strongest action in the exercise of its powers, and thereby found itself in court for judicial determination of the lawfulness of its actions. The underlying problem is one common to all legislatures in the Anglo-American stream: in the exercise of their function of conducting inquiries, houses frequently need information from executive governments. What is the solution if governments refuse to hand over information required by a house? In legislatures following the so-called Westminster pattern, where the executive usually controls the lower house through a disciplined party majority, the question usually arises only in relation to upper houses, like the federal Senate or the New South Wales Legislative Council, which have non-government majorities and seek to exercise their powers independently (although, as will be seen, New South Wales once provided an exception also to this rule). In most jurisdictions, upper houses seeking information and governments reluctant to produce it have not pushed their respective claims to the boundaries; governments have usually produced the required information or some compromise has been reached. Where a significant disagreement has arisen, it has usually been regarded as a matter to be settled politically, which means in practice that the majority of the house concerned seeks to inflict maximum political damage on a recalcitrant government. Indeed, a few years ago when a senator suggested that the political issue should be turned into a legal issue by statutory reference to the courts, the Senate Committee of Privileges unanimously rejected such a measure and insisted that such contests should continue to be pursued politically.[2] In New South Wales, however, the parties to a dispute did push their claims to the boundaries, and headed for the courts.

The majority of the Legislative Council would no doubt say that this was due to the stubbornness of the Treasurer, Mr Egan, a member of the council, in flatly refusing to produce documents demanded by the council. In relation to a number of matters of great political controversy, including some involving allegations of government malfeasance, the council passed orders for the production of documents and Mr Egan refused to produce them on the basis that such orders were not within the powers of the council. Finally, exasperated by his obduracy, the council in 1996 suspended him from its sittings, and he was escorted from the parliamentary precincts by the Usher of the Black Rod. He then went to the New South Wales Supreme Court seeking a declaration that the council had acted beyond its powers.

A significant feature of the case was that Mr Egan made no claim of privilege or public interest immunity, that is, no claim that he should be immune as a matter of law from producing the documents because of the nature of the documents or the effect of their disclosure. He did not claim, for example, that production of the documents would be contrary to the public interest because they were the subject of legal professional privilege or cabinet deliberations. Instead, the case focussed on the lawfulness of the council’s action in demanding the documents and in dealing with him for default.

In denying the power of the council, Mr Egan relied on a gloss on the principles of responsible government, which, according to his interpretation, requires that the executive government be accountable to the lower house alone and have no responsibility to the upper house. This argument had the virtue of overcoming one of those political inconsistencies which haunt politicians from time to time. Mr Egan’s party, when in opposition, and when the then government did not have a majority in the Legislative Assembly, made great use of orders for production of documents, and forced that government to disgorge mountains of documents about various embarrassing matters. That was different, said Mr Egan, because that was in the assembly, to which the government is alone responsible.

This Egan doctrine of responsible government was given short shrift in the courts, and was not the determinant of the case. The courts focussed on the question of whether the council has the power to act as it did.

The Court of Appeal, to which the case was removed by consent from the Supreme Court, delivered an answer most favourable to the council and unfavourable to Mr Egan.[3] Applying the doctrine that the council possesses the powers reasonably necessary for the exercise of its functions, the court held that the council has the power to order the production of ‘State papers’, and, by appropriate means, to enforce such an order. It was held that, while there is no general power to punish for contempt, the suspension of the Treasurer from the council was an appropriate means of seeking to ensure compliance with the order. In ejecting Mr Egan right out of the building, however, the council acted beyond its powers (this became known as the ‘footpath point’). Chief Justice Gleeson, in applying the doctrine of reasonable necessity, referred to the effect of the Australia Acts 1986 in raising the status of the New South Wales houses above that of a colonial legislature, and adopted the reasoning of the American law that the power to compel evidence is necessary to a legislature.[4] While that law extended the power to the punishment of contempts, he limited it to self-protection and coercion. The other two justices, Mahoney and Priestley JJ, while agreeing with this reasoning, noted that no question of privilege or public interest immunity was raised, and that such a question could arise for future determination.

Not satisfied with this judgement, Mr Egan appealed to the High Court. (It is remarkable that there has not been more political comment on the propriety of a minister spending so much of the taxpayers’ money on seeking to establish that the government does not have to provide information to Parliament.)

While the High Court dismissed the appeal, its answers to the questions raised were less clear-cut and provided more hints of future trouble from the parliamentary perspective.[5]

The new Chief Justice of the High Court did not sit on the case, having participated in the judgement of the Court of Appeal. Justices Gaudron, Gummow and Hayne, while sounding a cautionary note about limits to the court’s jurisdiction in areas of executive/legislative conflict, were content to apply the reasonable necessity test and to find that the council had not crossed the boundary between self-protection and coercion on the one hand and punishment on the other. They pointed out, however, that questions of privilege or public interest immunity were not raised by the case, and nor was the question of the power of the council to coerce private citizens. These matters were explicitly not examined. This was in response to submissions by Mr Egan’s counsel, who painted disturbing pictures of the council ransacking cabinet documents and seizing the private correspondence of hapless citizens.

Justice McHugh agreed that the appeal should fail on the basis on which it was pursued, but considered that technically it should have been allowed, so as to require the Court of Appeal to make a narrower order. He considered that the power to suspend a member inheres in the council and that Mr Egan’s case should be dismissed on that ground alone. The court should not determine the power of the council to require the production of documents by ministers, but if the reasonable necessity test is applied, he would find that the council does not have that power. Such a power would extend to private citizens, and the council does not have any power to compel private citizens. The council can ask for information and can suspend a member for obstructing it in that regard.

Mr Justice Kirby noted that the case did not provide an opportunity to determine whether the powers of the federal houses under section 49 of the Constitution, long held to include the power to punish contempts,[6] should be reinterpreted and read down to exclude that power. One senses that he would like an opportunity to engage in this exercise. He accepted the established test of reasonable necessity, but not necessarily the old cases relating to it. He agreed that the reasoning of the United States cases in relation to the power of investigation is applicable to the council, but that the council has no implied power to punish contempts. He found no error in the Court of Appeal’s judgement.

Justice Callinan also accepted the reasonable necessity test and found that the council’s action was reasonably necessary and not punitive, but also noted that there was no question of public interest immunity.

This judgement is not the end of the matter. In November 1998 Mr Egan again refused to produce documents to the council, and was again suspended from its sittings. He is again going to the Supreme Court to seek a ruling on the council’s powers, but on this occasion his claim is that the documents in question are protected by legal professional privilege, and the council does not have the power to compel the production of such documents. It will be interesting to see how the courts deal with this question.

So far, the judgements are relevant only to the New South Wales houses because of the different foundation on which their immunities and powers rest. There is plenty of material in the judgements, however, to concern the houses in the other jurisdictions. It may be that the courts will be able to determine questions of public interest immunity only in relation to the New South Wales houses, but it is difficult to see how any pronouncements on that subject could be prevented from flowing over into the other jurisdictions in one form or another. There is also the hint from Mr Justice Kirby that section 49 of the Commonwealth Constitution should be reinterpreted to exclude the contempt power, notwithstanding the long-established and recently reiterated American law that such a power is inherent in a legislature. Then there is the horror which seems to be aroused in judicial breasts at the idea of houses compelling evidence from private citizens, although that has also long been recognised as essential to the power to conduct inquiries.

That power is seldom exercised, in that witnesses, official or non-official, are seldom coerced, and most evidence is taken voluntarily. All houses will have to be cautious in any exercise of the power in the future. As parliamentary matters, like all matters in modern society, are drawn more frequently into litigation, it can safely be predicted that this case, and Mr Egan’s next case, will not be the last. The possibility of a clash between legislatures and courts cannot be ruled out.

1.   The cases go back to Kielley v Carson (1842) 4 Moo PC 63; the principal modern case is Armstrong v Budd (1969) 71 SR (NSW) 386.

2.   49th Report of the Committee of Privileges, Parliamentary Paper no. 171/1994, in relation to the Parliamentary Privileges Amendment (Enforcement of Lawful Orders) Bill 1994.

3.   Egan v Willis and Cahill [1996] 40 NSWLR 650.

4.   McGrain v Daugherty (1927) 273 US 135; Quinn v US (1955) 349 US 155.

5.   Egan v Willis and Cahill (1998) HC 71.

6.   R v Richards, ex parte Fitzpatrick and Browne (1955) 92 CLR 157.

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