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[2026] NSWCA 20
plaintiff. Declared that Article 9 does not operate validly to prevent the Director from making, and the District Court from determining, the specified recusal application; otherwise dismissed the summons.
The Court of Appeal allowed the Director to rely on the judge’s published committee submission in the particular pending application asking the judge to step aside for apprehended bias. The Court rejected arguments that it lacked a live dispute, that it should leave the issue to the criminal proceedings, that other procedures made the declaration unnecessary, or that Constitution s 49 made parliamentary privilege absolute. The ruling was narrow: it did not decide whether the judge was in fact required to recuse herself, and it did not decide that every use of parliamentary material in a recusal application is permitted.
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2,381 words · generated 08/10/2026
The dispute arose in a judge-alone criminal prosecution for historic sexual offending. The trial ran over 13 days in November and December 2025. On 28 November, while the prosecution was underway, the trial judge sent a submission to a Legislative Council committee conducting an inquiry into identity protections in proceedings involving children. The submission was critical of the Director of Public Prosecutions. The judge signed it using the title of her office. Most of it was published on the committee’s webpage on 4 December and received media coverage the following day: [1], [15].
26 cited instruments linked from this judgment.
On 9 December, the Director applied for the judge to disqualify herself for apprehended bias. The application relied on the submission and its reporting, and raised the question whether a fair-minded observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the prosecution: [1]. When that application came before the District Court on 10 December, the judge raised whether reliance on the submission would infringe Article 9 of the Bill of Rights, which protects freedom of speech in Parliament.
The Director then commenced proceedings in the Court of Appeal seeking a declaration about Article 9’s effect on the recusal application. The President of the Legislative Council and the New South Wales Attorney ultimately accepted that Article 9 could not validly prevent the tender and reliance in question. The Commonwealth Attorney, intervening under s 78A of the Judiciary Act 1903 (Cth), argued that Article 9 did prevent the use of the submission and did so validly. The Court held that the disagreement left a “matter” for it to decide: [4], [37], [44].
The Court made a limited declaration. It did not decide whether the trial judge should recuse herself, whether the submission was justified, or how the Legislative Council’s Privileges Committee should deal with the President’s referral: [9], [11]-[12]. The declaration was tied to the submission dated 28 November and the Director’s written submissions filed on 9 December: [109].
The Court dealt first with jurisdiction. It rejected the argument that the Director and President agreeing on the practical relief meant there was no justiciable controversy. The President remained a proper contradictor because he had a true interest in the claim, even though he ultimately agreed that the requested declaration should issue: [35]-[36]. In addition, the Commonwealth Attorney was a party to the proceeding after intervention and actively opposed most of the relief sought: [37]. The Court also identified a separate disagreement between the Director and President about how Article 9 should be construed: [44].
Next, the Court considered discretion. Courts ordinarily discourage fragmenting criminal proceedings, and the Court cited the established caution associated with declaratory or other interlocutory proceedings during a criminal prosecution: [47]. It nevertheless considered this an unusual case. The criminal proceedings had already been delayed because the privilege question had interrupted the recusal application. The Court’s proceedings had been conducted with expedition, and an authoritative ruling would assist in resolving the actual issue rather than add avoidable delay: [48]-[50]. The Court therefore refused to withhold relief.
The most substantial argument concerned four alternative ways, proposed by the Commonwealth Attorney, to obtain a court unaffected by apprehended bias without allowing the submission to be used directly in a recusal application: [54]-[55]. The first was to approach the judge in chambers. The Court considered that if Article 9 prevented use of the submission in open court, it would also prevent deploying it privately for the same purpose. It also noted the concern that an important judicial outcome should not depend on a private process: [58].
The second avenue was to obtain the relevant information in another way, such as by inviting the judge to repeat the substance of the submission. The Court said this would only work if the judge repeated matters in a way that did not itself attract privilege. The events on 12 December, when the Director invited the judge to disclose relevant information and the judge did not do so, illustrated that the alternative need not succeed: [17], [58].
The fourth avenue was an appeal or judicial review. The Court rejected it on the basis that material that could not support the recusal application before the trial judge would not become available in appellate or supervisory proceedings: [58]. The third avenue, a stay and later reallocation, required more detailed consideration.
Under that proposal, the judge could accept that there was privileged material capable of grounding a recusal application, decline to determine the application because of Article 9, and then arrange for the case to be assigned to another judge: [60]-[62], [67]. The Court considered this problematic because the practical outcome would be replacement of the judge without adjudication of whether the recusal test was satisfied. A party whose application might fail on its merits could thereby obtain the practical result it sought through a different and more readily satisfied route: [65]. The Court described that as a distortion of the judicial process and also noted the potential unfairness to the opposing party, who could face the expense and delay of a new trial: [70].
The Court further reasoned that the proposed stay mechanism did not avoid the privilege problem. If the material had to be considered to decide whether the application was properly founded and whether the judge should stand aside, the procedure still risked doing indirectly what the Commonwealth Attorney said Article 9 prohibited directly: [67]-[69]. The Court therefore rejected the proposed alternative avenues as a basis for holding that Article 9 could validly prevent the specified use.
The s 49 argument also failed. Section 49 gives the Commonwealth Parliament’s Houses the powers, privileges and immunities of the House of Commons as they stood in 1901 until Parliament declares otherwise: [72]-[73]. The Court read this as a changeable default, not an absolute rule. It reasoned that legislation made under s 49 could not override Chapter III limitations, so the default position could not do so either: [76]. It also observed that s 49 was still further removed from any effect on the limits imposed on State legislative power: [76].
The judgment describes a longstanding tension between parliamentary privilege and the judicial function. Article 9 says that freedom of speech and proceedings in Parliament ought not to be “impeached or questioned” in a court or elsewhere outside Parliament: [84]. The Court noted that Article 9 has acquired a substantial body of law around it and is not interpreted as an ordinary modern statute. It described the provision as being of “the highest constitutional importance”, while also observing that its scope is not unlimited: [88]-[89].
Before this decision, the judgment records competing Australian approaches to how far Article 9 restricts court use of parliamentary material. It refers to divided decisions in Erglis v Buckley and Rann v Olsen, and to differing positions in earlier New South Wales and High Court decisions: [78]. It does not purport to resolve all those differences. Instead, the Court emphasised that the parties urged a narrow decision and that broader observations would be obiter: [79]-[80].
The concrete effect of this judgment is limited but important. Article 9 could not validly prevent the Director from making, or the District Court from determining, the particular recusal application using the specified submission and written submissions: [109]. The Court did not establish a general permission to use parliamentary material in recusal proceedings. It expressly distinguished between submissions that rely on the fact and form of a judge’s submission, and submissions that go further by making positive claims or inviting inferences about the judge’s actual motivation: [10].
Nor did the Court decide whether the result rested on the proper construction of Article 9, on a constitutional limitation cutting back its operation, or on the relationship between those approaches. It recorded that the active participants agreed that Article 9 could not validly produce the asserted result, while acknowledging a disagreement about the legal route to that conclusion: [77]-[80]. The judgment’s broader discussion of reconciliation between constitutional principles was expressly not necessary to the orders: [90]-[99].
At [37], the Court explained that the Commonwealth Attorney’s opposition meant “there is a dispute between the parties”, notwithstanding the agreement between the Director and President. In plain English, a constitutional case does not necessarily cease to be a live dispute just because two participants agree, where an intervening Attorney-General is a party and maintains a substantive opposing position.
At [48], the Court said the usual concerns about interrupting a criminal case applied “with much reduced force”. The trial had already been disrupted by the unresolved privilege question, and the Court considered that resolving it would assist the efficient handling of the remaining issues. This was a case-specific exercise of discretion, not a general relaxation of the caution normally applied to interlocutory proceedings.
At [69], the Court stated: “Ordinarily, constitutional prohibitions cannot be avoided by doing indirectly what cannot be done directly.” The plain point is that a procedural workaround does not necessarily answer a constitutional objection if its practical operation produces the same result through a circuitous route. The Court applied that reasoning to the proposal for a stay and reallocation without a decision on the recusal application.
At [76], the Court said s 49 was “the opposite of ‘absolute’” and was “defeasible”. In ordinary terms, the provision supplies a starting position that Parliament can change; it does not permanently fix parliamentary privilege beyond constitutional limits.
At [108], the Court explained why the Director’s existing submissions fell within the declaration. They referred to the terms of the submission and described the judge’s conduct as “extraordinary”. The Court considered that description fair in the circumstances and not an impeachment or questioning of the submission. That finding was confined to the submissions before it.
Finally, [109] states the order itself. The words “in accordance with the written submissions filed by the Director on 9 December 2025” materially limit the declaration. It is not a general ruling that any argument, inference or use of parliamentary material in a recusal application is protected from Article 9.
The judgment is most directly relevant to a fact pattern where a judicial officer has made a submission to a parliamentary committee concerning a litigant or matter before that officer, and a party seeks to rely on the fact or form of that submission in an application for recusal based on apprehended bias. Here, the judge’s submission was made while a criminal prosecution was underway, was critical of the Director, and was substantially published before the recusal application: [1], [15]-[16].
The constitutional and procedural setting also mattered. There was a pending recusal application, a real dispute over whether parliamentary privilege prevented use of the submission, and active opposition to the requested declaration by a Commonwealth Attorney-General who had intervened: [37], [44]. The Court also relied on the fact that the particular written submissions were already identifiable and could be assessed for their content: [108].
The decision does not automatically resolve cases involving different parliamentary material, different forms of proposed argument, or different procedural steps. The Court expressly said it was not determining that all submissions supporting a recusal application after a judge’s parliamentary submission would be permissible: [10]. It anticipated that arguments about a judge’s actual motivation could raise a different issue from arguments relying on the fact that the submission was made in a particular form. The judgment also did not decide the position of tribunal members, although it noted that similar questions might arise for tribunals: [92]-[93].
The judgment text supplied here does not report any later judicial treatment of this decision. It therefore cannot establish whether later courts have followed, distinguished, confined or questioned it.
The judgment itself refers to earlier authorities it applied, discussed or considered, including Kable, Williams, Gedeon, Sankey, Re Pacific Coal, Work Choices, Wragg, Caltex Oil, Pepper v Hart, Unions NSW, Prebble, Rann v Olsen and Isbester. Those references describe the authorities’ role in this Court’s reasoning; they are not evidence of how subsequent courts have treated the present decision.
For later research, the central points to check against any subsequent judgment would include the limited wording of the declaration at [109], the Court’s distinction at [10] between referring to the fact and form of a submission and making claims about actual motivation, and the discussion at [100]-[105] of whether an objective apprehended-bias argument can proceed without questioning parliamentary speech. The judgment expressly left the latter discussion without a concluded view: [105].
The most immediate issue left open is the merits of the Director’s recusal application. The Court expressly reserved that question for the District Court judge in the first instance: [9]. Its declaration permitted the specified application to be made and determined; it did not decide whether the apprehended-bias test was met.
The Court also did not finally decide whether the correct route to the result was construction of Article 9, constitutional limitation under the principle associated with Kable, or an interaction between those analyses. It observed that the two approaches were not necessarily “in watertight compartments”: [99]. The observations at [90]-[99] were expressly not necessary to the orders.
A further unresolved question is the boundary between establishing what was said in Parliament and impermissibly questioning or impeaching it. The Court considered the substance and purpose of the use important, and rejected the proposition that every conceivable inference necessarily amounts to questioning: [102]-[104]. But it did not set a comprehensive test or decide how the boundary applies to other arguments or other parliamentary materials.
The judgment also left unresolved how the President’s referral to the Legislative Council Privileges Committee should be treated: [11]. It expressed no view on the merits of the judge’s submission or any later submission by the Director to that committee: [12]. Finally, the Court’s observations about possible analogous issues for independent tribunals were exploratory, not a ruling on tribunal members or on the reach of the Kable principle in that setting: [92]-[96].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Director of Public Prosecutions (NSW) v President of the Legislative Council of New South Wales [2026] NSWCA 20
Hearing dates: 24, 25 February 2026
Decision date: 05 March 2026
Before: Leeming JA; Stern JA; Griffiths AJA
Decision: 1. Declare that Article 9 of the Bill of Rights does not operate validly to prevent the Director from making (and the District Court from determining) a recusal application on the ground of apprehended bias by reference to the Judge’s Submission dated 28 November 2025 and in accordance with the written submissions filed by the Director on 9 December 2025.
2. Otherwise dismiss the summons filed on 15 December 2025.
Catchwords: CONSTITUTIONAL LAW – parliamentary privilege – Bill of Rights, Article 9 – recusal application for apprehended bias based on judge making submission to Parliamentary Committee – submission published by Committee – whether tender of submission for purposes of recusal application contrary to Article 9 – common ground between all parties save Commonwealth Attorney intervening pursuant to Judiciary Act 1903 (Cth) s 78A that Article 9 did not validly prevent the tender – whether presence of Commonwealth Attorney meant there continued to be a matter – whether dispute between parties as to whether Article 9 did not apply as a matter of construction or of legislative power meant there continued to be a matter – whether declaratory relief should be refused as a matter of discretion – whether alternatives available other than recusal – whether Constitution s 49 preserved applicability of Article 9 for freedom of speech in a State Parliament – whether if Article 9 would otherwise prevent a court from being constituted by a judge free from the apprehension of bias, Article 9 was cut down by reason of the principle in Kable v Director of Public Prosecutions (NSW) – limited declaratory relief issued
Legislation Cited: Bill of Rights 1689 arts 7, 8, 9
Calendar (New Style) Act 1750 (24 Geo II c 23)
Constitution ss 49, 52
Court of Chancery Procedure Act 1852 (15 & 16 Vict c 86) s 50
Criminal Appeal Act 1912 (NSW)
Crown and Parliament Recognition Act 1689 (2 W and M c 1)
Equity Act 1901 (NSW) s 10
Imperial Acts Application Act 1969 (NSW)
Judiciary Act 1903 (Cth) ss 78A, 78B
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Parliamentary Papers Act 1840 (3 & 4 Vict c 9)
Parliamentary Privileges Act 1987 (Cth) s 16
Supreme Court Act 1970 (NSW) s 48
Cases Cited: Arena v Nader [1997] HCATrans 284
Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd (1970) 124 CLR 262; [1970] HCA 58
Attorney-General (Tas) v Casimaty [2024] HCA 31; 98 ALJR 1139
Cadia Holdings Pty Ltd v State of New South Wales (2010) 242 CLR 195; [2010] HCA 27
Caltex Oil (Aust) Pty Ltd v Best (1990) 170 CLR 516; [1990] HCA 53
Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales (2024) 116 NSWLR 314; [2024] NSWCA 30
Cormack v Cope (1974) 131 CLR 432; [1974] HCA 28
Dennis v Dennis (1971) 124 CLR 317; [1971] HCA 50
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Erglis v Buckley [2004] 2 Qd R 599
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61
Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Hornsby Shire Council v Salmar Holdings (1972) 126 CLR 52; [1972] HCA 26
Hutson v Australian Securities and Investments Commission (2023) 17 QR 21; [2023] QCA 167
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Jackson v Attorney General [2006] 1 AC 262; [2005] UKHL 56
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
Lake v King (1680) 1 Wms Saunders 131; 85 ER 137
Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37
Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32
McCloy v The Honourable Megan Latham [2015] NSWSC 1782
Mees v Roads Corporation (2003) 128 FCR 418; [2003] FCA 306
Pepper (Inspector of Taxes) v Hart [1993] AC 593
Prebble v Television New Zealand [1995] 1 AC 321
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15
R v Murphy (1986) 5 NSWLR 18
Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83
Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; [2000] HCA 34
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192
Sankey v Whitlam (1978) 142 CLR 1
Shapowloff v Dunn [1973] 2 NSWLR 468
Sir John Eliot’s Case (1629) 3 St Tr 294
State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112
Television New Zealand Ltd v Prebble [1993] 3 NZLR 513
Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253
Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] UKPC 48; [2007] 1 WLR 2825
Unions NSW v New South Wales (2023) 277 CLR 627; [2023] HCA 4
Williams v The Commonwealth (2012) 248 CLR 156; [2012] HCA 23
Work Choices Case (2006) 229 CLR 1; [2006] HCA 52
Wragg v New South Wales (1953) 88 CLR 353; [1953] HCA 34
Texts Cited: E Campbell, Parliamentary Privilege (Federation Press, 2003)
H Cam, The Hundred and the Hundred Rolls (1930, reprinted Routledge, 2025)
M Chamberlain and J Segan, “Parliamentary Privilege, Article 9 of the Bill of Rights and Admissibility: What Use Can Be Made of Parliamentary Materials in Litigation” (2018) 23 Jur Rev 11
M Hale, History of the Common Law (5th ed edited by C Runnington, 1794, London)
Category: Principal judgment
Parties: Director of Public Prosecutions (NSW) (Applicant)
President of the Legislative Council of New South Wales (First Respondent)
District Court of New South Wales (Second Respondent, submitting)
Attorney General of New South Wales (intervening)
Attorney-General of the Commonwealth (intervening)
Representation: Counsel:
JT Gleeson SC, CJ Tran, P Banerjee (DPP)
BW Walker SC, TM Wood, FJ Leitch (President)
BK Lim SC, JG Wherrett (NSW AG)
T Begbie KC, C Ernst (Cth AG)
Solicitors:
Office of the Director of Public Prosecutions (DPP)
Corrs Chambers Westgarth (President)
Crown Solicitor’s Office (NSW) (NSW AG)
Australian Government Solicitor (Cth AG)
File Number(s): 2025/486239
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
In November and December 2025, a criminal prosecution for historic sexual offending brought by the Director of Public Prosecutions (NSW) on behalf of the Crown ran over 13 days before the District Court constituted by a judge sitting without a jury. On 28 November, the judge made a submission to a Committee of the Legislative Council of New South Wales which was critical of the Director. On 9 December, the Director applied for the judge to disqualify herself on the ground of apparent bias, in light of the judge’s submission. At the commencement of hearing that application on 10 December, an issue arose as to whether the tender of that submission would infringe Article 9 of the Bill of Rights, which protects freedom of speech in Parliament.
These proceedings were commenced by the Director shortly thereafter. Both the Attorney General of New South Wales and Attorney-General of the Commonwealth intervened pursuant to s 78A of the Judiciary Act 1903 (Cth). Shortly before the hearing, the President of the Legislative Council agreed with the Director (and the New South Wales Attorney) that Article 9 could not validly apply to the tender of the submission. However, the Commonwealth Attorney maintained that Article 9 did prevent the tender and reliance on the submission, and was not invalid.
The issues before the Court of Appeal included: (1) whether the extant dispute between the original parties and the Commonwealth Attorney who intervened under s 78A amounted to a “matter” such that the Court had jurisdiction; (2) whether, as a matter of discretion, the Court should withhold relief; (3) whether other avenues were available to achieve a court unaffected by the apprehension of bias, such that Article 9 could validly operate to prevent the tender and reliance on the judge’s submission for an apprehended bias application; and (4) whether s 49 of the Constitution applied to confirm the operation of Article 9.
The Court (Leeming JA, Stern JA, and Griffiths AJA) held, declaring that Article 9 of the Bill of Rights does not operate validly to prevent the Director from making (and the District Court from determining) a recusal application on the ground of apprehended bias:
State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26, Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales (2024) 116 NSWLR 314; [2024] NSWCA 30, Williams v The Commonwealth (2012) 248 CLR 156; [2012] HCA 23, followed and applied.
Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43, Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253, Sankey v Whitlam (1978) 142 CLR 1, Shapowloff v Dunn [1973] 2 NSWLR 468, Hutson v Australian Securities and Investments Commission (2023) 17 QR 21; [2023] QCA 167, Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37, applied.
Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; [2000] HCA 34, Work Choices Case (2006) 229 CLR 1; [2006] HCA 52, Wragg v New South Wales (1953) 88 CLR 353 at 388; [1953] HCA 34, Caltex Oil (Aust) Pty Ltd v Best (1990) 170 CLR 516 at 522; [1990] HCA 53, applied.
Consideration, in obiter dicta, of the nature and operation of Article 9 of the Bill of Rights in Australia, the interaction with other constitutional limitations, and its application to recusal applications: [82]-[106].
Pepper (Inspector of Taxes) v Hart [1993] AC 593, Unions NSW v New South Wales (2023) 277 CLR 627; [2023] HCA 4, Prebble v Television New Zealand [1995] 1 AC 321, Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20, considered.
THE COURT: In November and December 2025, a criminal prosecution for historic sexual offending brought by the Director of Public Prosecutions (NSW) on behalf of the Crown ran over some 13 days before the District Court constituted by a judge sitting without a jury. On 28 November 2025, the judge made a submission to a Committee of the Legislative Council of New South Wales which was critical of the Director (the Judge’s Submission). Most of the Judge’s Submission was published on the Committee’s webpage on 4 December 2025, and was given publicity in the mass media on Friday 5 December 2025. On Tuesday 9 December 2025, the Director applied for the judge to disqualify herself on the ground of apparent bias, based on whether, in light of the submission and its reporting in the media, a fair-minded observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the prosecution. At the commencement of the hearing of that application on Wednesday 10 December 2025, an issue arose whether reliance on the Judge’s Submission infringed Article 9 of the Bill of Rights, which protects freedom of speech in Parliament. The initial view of the President of the Legislative Council was that Article 9 prohibited the tender of the Judge’s Submission and that relying on it might be a contempt of Parliament. That issue having been raised, it was agreed between the Director and the President – with commendable speed – that the issue should be determined by the Court of Appeal. The President also made a reference to the Privileges Committee extending to whether the adducing of evidence of the Judge’s Submission was a breach of parliamentary privilege.
Proceedings were commenced on Monday 15 December 2025. The District Court filed a submitting appearance on 17 December 2025. Orders were made by this Court on 18 December 2025 (the second last day of the Law Term) referring, out of an abundance of caution, the proceedings to the Court of Appeal. (Section 48 of the Supreme Court Act 1970 (NSW) assigns certain classes of proceedings to the Court of Appeal. There is room for debate how s 48 applies when a declaration is sought concerning the operation of Article 9 upon the tender in the District Court of a submission made by a judge in the District Court, but it is plain that the question is important and best determined by this Court.) The orders made on 18 December 2025 also governed the preparation of evidence and submissions and the notification of potential additional parties with a view to having a final hearing on 24 and 25 February 2026. All that has occurred. The various accused persons in trials being prosecuted by the Director were notified of the dispute in this Court, but none sought to be heard. The Attorney General of New South Wales and the Attorney-General of the Commonwealth intervened pursuant to s 78A of the Judiciary Act 1903 (Cth), each making substantive submissions. The hearing in this Court took place as contemplated, but we are conscious that that only happened because a great deal of work on complex legal issues has occurred in short order, including during the annual vacation.
First, this judgment holds that the extant dispute between the original parties and the Commonwealth Attorney who intervened pursuant to s 78A of the Judiciary Act means that there is a “matter” before the Court such that this Court has jurisdiction.
Secondly, this judgment rejects the President’s submission that, as a matter of discretion, this Court should withhold relief. That submission was rejected, albeit in different ways, by the Director and the interveners. Although the fragmentation of the criminal process is to be actively discouraged, the present is one of the unusual cases where an early, authoritative determination of an important question of law is warranted.
Thirdly, this judgment holds that the tender of the Judge’s Submission and reliance upon it as set out in the written submissions filed by the Director on 9 December 2025 does not without more contravene Article 9 of the Bill of Rights. That has always been the position of the Director. Although it was not initially the view of the President, when asked to form a view on very short notice last December, it became his considered view no later than the service of written submissions in this Court on 9 February 2026. Their view is shared by the New South Wales Attorney. Uniquely in this litigation, the Commonwealth Attorney maintained that Article 9 did prevent the tender and reliance on the Judge’s Submission for the purpose of the disqualification application; we do not accept that submission.
Fourthly, this judgment rejects a further submission advanced by the Commonwealth Attorney, based on s 49 of the Constitution, that the limitation upon legislative power in Kable v Director of Public Prosecutions *(*NSW) (1996) 189 CLR 51; [1996] HCA 24 does not apply to reduce the operation of Article 9 of the Bill of Rights.
There are a number of matters which this judgment does not determine, largely because the litigation has taken place swiftly, and anticipatorily, before even the tender of the submission has been completed and before the oral submissions in support of the recusal application have been made.
This judgment does not determine, and is not to be understood as expressing any views concerning, the merits of the application that the judge disqualify herself. That is a matter for her Honour in the first instance, and is outside the scope of this litigation.
This judgment does not hold that any and all submissions which might be made in support of a recusal application consequent upon a Judge’s Submission to Parliament would not infringe Article 9. It is neither appropriate nor possible to give an advisory opinion as to how to conduct such applications in the abstract through the mechanism of proceedings seeking declaratory relief. However, and necessarily speaking broadly, there is a difference between (a) submissions which point to no more than the fact that a judge has made a submission in a particular form, and on that basis contending that the test for disqualification is satisfied, and (b) submissions which go further, and positively make contentions or invite inferences about the actual motivation of the judge in making the submission. The former may be expected not to contravene Article 9, while the latter may be expected to do so.
This judgment does not determine, and is not to be understood as expressing any views concerning, the status of the referral by the President on 15 December 2025 to the Privileges Committee, or how that Committee should proceed to deal with that referral.
This judgment does not express any view, and is not to be understood as expressing any view, concerning the merits of the Judge’s Submission, or the merits of a subsequent submission made by the Director, to the Privileges Committee.
However, we do note that it is highly unusual for a sitting judicial officer to make a submission to a Parliamentary Committee bearing upon the conduct of any particular litigant before the judicial officer. None of the parties or interveners identified any comparable case, and we are aware of none. It is axiomatic that any judicial officer must constantly be concerned to ensure that justice is and has the appearance of being administered impartially. Although we make no comment as to the Judge’s Submission, one of the incidents of holding judicial office is the need to refrain from making statements which are capable of giving rise to a perception that the judge may not deal with matters before that judge impartially.
The issue before this Court is one of law. Save insofar as submissions have been made about the absence of jurisdiction and the discretionary withholding of relief, the factual background is unimportant.
The essential chronology has already been summarised. The hearing of the criminal trial took place before the primary judge on 11, 12, 13, 17, 19, 20, 25, 26 and 27 November and 1, 2, 3 and 4 December 2025. The Judge’s Submission was supplied to a Committee of the Legislative Council known as “Portfolio Committee No 5 – Justice and Communities”, which was conducting an inquiry into “identity protections for proceedings involving children”. The submission was dated 28 November, and signed by her Honour using the title of her office. The Committee appears to have resolved, on 3 December 2025, to omit some of the submission from the material published on a webpage associated with that inquiry, but on 4 December 2025 the majority of the submission was made available to the public online.
The Director’s application was made on 9 December and came before her Honour on 10 December 2025. The transcript records that final addresses were due to occur on that day. The accused was an elderly man, with various physical and mental health deficits, who was charged with offences dating to the late 1950s brought by six of his elderly siblings, all of whose names are the subject of statutory non-publication orders.
In addition to the application in the part-heard judge-alone trial, the Director made similar applications in other proceedings before her Honour. Save in one respect, the details do not matter; all the proceedings were adjourned. The exception is the application in proceedings which was made on 12 December 2025. There the Director, rather than seeking to tender a copy of the submission from the Committee’s webpage, referred her Honour to the suggestion in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [69] that “judges should disclose interests and associations if there is a serious possibility that they are potentially disqualifying” and asked if her Honour had anything to disclose. The application was intended to permit the judge herself to disclose the fact that she had made a submission, in a fashion that could be relied upon in support of an application for apprehended bias. The primary judge did not make any disclosure. It appears that there was no misunderstanding as to the nature of the invitation made to her Honour, for shortly thereafter, after discussion of the imminent commencement of these proceedings, the transcript records the judge saying:
HER HONOUR: … The only other thing I probably should say is that if the Crown succeeds in getting declarations that they can deploy the parliamentary material – I’ll just call it the parliamentary material, I think everybody knows what we’re talking about now. That is to say the Hansard of the evidence of Ms Dowling and Mr Highland, and my submission to the committee. Can I just check, Mr Hatfield, is that the material that we’re talking about, there’s not some other material that the Crown has in mind?
HATFIELD: No, that’s it.
The Director maintained that there was no infringement of parliamentary privilege by reliance on the Judge’s Submission for the purposes of an application for recusal based on apprehended bias. Alternatively, if Article 9 did prevent reliance on the Judge’s Submission, the Director submitted that Article 9 substantially impaired the institutional integrity of the Court and was to that extent invalid. She sought declaratory relief accordingly.
The President and the New South Wales Attorney disputed the Director’s primary submission, but agreed with the latter submission. The Commonwealth Attorney maintained that Article 9 prevented consideration of the submission as a matter of construction, and did so validly, without impairing the institutional integrity of the Court. That was because there were alternative avenues in which a court unaffected by the apprehension of bias could be secured. The Commonwealth Attorney also relied on a separate submission based on s 49 of the Constitution.
There is also a threshold question of jurisdiction, because the President maintained not only that no declaratory relief should issue as a matter of discretion, but also that this Court was required to dismiss the summons, for want of jurisdiction.
It is logical to address the issues in the following order: (i) jurisdiction, (ii) discretion, (iii) the Commonwealth Attorney’s alternative avenues and (iv) s 49 of the Constitution. It will be convenient to summarise the parties’ submissions when dealing with and resolving each issue.
The President has consistently maintained that Article 9 extends as a matter of statutory construction to the tender of the Judge’s Submission in support of a disqualification application. However, no later than the President’s submissions in this Court (filed on 9 February 2025), the President formally accepted that Article 9 could not be given that operation because of the doctrine in Kable (this had been anticipated by letter dated 5 February 2025). That amounted in substance to an acceptance of the force of the Director’s fall-back submission.
The President maintained that, following his change of stance, this Court lacked jurisdiction. The submission was nuanced, subtle and not without force. We summarise it, and explain why we are unable to accept it, below.
As a result of the position taken by the President, on the submissions filed to date, the active participants to the proceeding all agree that Art 9 does not:
(a) prevent the Director from relying on the Judge Wass Submission to make an application for her Honour to recuse herself on the basis of apprehended bias;
(b) prevent Judge Wass from deciding that application by reference to the Judge Wass Submission.
If that remains the position following the filing of submissions by the Attorney-General of the Commonwealth, there will be no justiciable controversy between the parties and therefore the Court will not have jurisdiction to grant the relief sought in the Summons (or, alternatively, the Court should refuse to grant the relief because it will lack utility or otherwise be inappropriate).
The Commonwealth Attorney’s submissions (filed on 13 February 2026) adopted a different stance. Nonetheless, in oral submissions the President maintained that there was no justiciable controversy.
Mr Walker SC stressed that the “matter” was not whether the District Court constituted by the judge had jurisdiction, or alternatively had been deprived of jurisdiction by reason of apparent bias. That dispute was not before this Court, and it was a dispute in which the President had no interest. Instead, the “matter” between the parties was relevantly much narrower. It was simply whether Article 9 precluded recourse to the Judge’s Submission to the Committee in support of a recusal application. On that issue, the Director, the President and the New South Wales Attorney were agreed that it did not. They were the three persons most vitally interested in the issue – one charged with the conduct of criminal trials, one being the representative officer of the House whose privilege was in issue, and one with general responsibility for the administration of justice in New South Wales. We would agree, noting that a fourth person is vitally concerned, namely, the accused man who cannot be named but who has been charged with serious offences and is entitled to their determination by a District Court which is unaffected by the apprehension of bias. However, he has not sought to be joined as a party or otherwise heard.
The President submitted that the matter was not transformed when the Commonwealth Attorney intervened under s 78A of the Judiciary Act and raised additional issues. The absence of controversy between the parties was “not transformed by the Commonwealth’s lone position concerning resort to the Article 9 material”. He drew on the notion of “interests” which underlies questions of necessary and proper parties:
In relation to the concept of a matter, it involves subject matter and personages. Persons, if you like, with interests recognise that law and it involves, of course, an outright rejection of the notion that a matter is constituted by people at large having a state of disagreement about, for example, the law. That doesn’t constitute a matter. That learned articles suggest that the High Court has got something wrong, does not constitute a matter between the High Court and those learned authors.
He also pointed to the fact that other polities in the Australian federation, which enjoyed an entitlement to participate under s 78A of the Judiciary Act, had no interest in the administration of justice in New South Wales. He said that “properly understood at the proper level of specificity, there is no longer a matter which gives the Court jurisdiction”.
The submissions based on jurisdiction and discretion were opposed by the Director and also by the New South Wales Attorney with whom the Commonwealth Attorney agreed. The New South Wales Attorney said that it was sufficient to note that the President had a true interest in the relief claimed, the District Court is a submitting party with an obligation in multiple underlying matters to proceed in accordance with law, as to which there is a live question, and the Commonwealth Attorney had intervened and taken a contradicting position.
The position could be resolved simply by adopting the submission of the New South Wales Attorney, with which we agree. However, there is much in the language used in this area of the law that is capable of causing confusion. For that reason, it is as well to start with first principles.
First, a submission that a court lacks “jurisdiction” does not bear its literal meaning. That is because all courts have jurisdiction to determine whether they have jurisdiction (which is to say, authority to decide the subject matter in dispute between the disputing parties). Sometimes courts lack jurisdiction to decide certain classes of controversy (for example, claims exceeding a jurisdictional limit), or controversies involving certain parties (for example certain claims against persons with no presence in the jurisdiction). But all courts are under a duty to determine whether they have authority to decide a litigant’s claim, and all courts accordingly have jurisdiction to determine the threshold question of jurisdiction: “all courts, whether superior or inferior, have the authority to decide whether a claim that is made in the court is within its jurisdiction”: State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [31]. The President invites this Court, in the exercise of its undoubted jurisdiction to determine whether it has jurisdiction to issue declaratory relief, to dismiss the summons for want of jurisdiction.
Another way of putting this is that the dismissal of the summons which the President seeks is an exercise of jurisdiction. But it is an exercise of the jurisdiction to determine jurisdiction, as opposed to the substantive subject matter jurisdiction invested in this Court.
Secondly, it was once thought that there was no jurisdiction to grant a “bare declaration”, which is to say, declaratory relief unaccompanied by other relief. That was associated with a narrow construction given to s 50 of the Court of Chancery Procedure Act 1852 (15 & 16 Vict c 86) and its local equivalents. Related difficulties arose in New South Wales consequent upon the delayed enactment of judicature legislation, such that by 1965 the result had been reached that “the Supreme Court in Equity was without jurisdiction to make a declaration as to the existence or non-existence of a right which was purely legal, as distinct from equitable”, as Mason JA put it in Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 at 201. That narrow approach was overturned by the Law Reform *(*Miscellaneous Provisions) Act 1965 (NSW) inserting a very broadly framed power as s 10 of the Equity Act 1901 (NSW) and by this Court’s decision in Salmar Holdings, which was confirmed in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 435-438; [1972] HCA 61 (Gibbs J, with whom McTiernan, Stephen and Mason JJ agreed), after the issue had been avoided in (1971) 124 CLR 317; [1971] HCA 50 and the further appeal in (1972) 126 CLR 52; [1972] HCA 26. Thus the nature of the relief sought by the Director is not an obstacle to jurisdiction, and the contrary was not suggested.
The President also maintained that relief should be refused for discretionary reasons.
There are pending criminal proceedings in the District Court. That is often a powerful discretionary reason to decline relief. The fragmentation of the criminal process is to be actively discouraged: Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [23]; Toth v Director of Public Prosecutions *(*NSW) [2018] NSWCA 253 at [35], and the jurisdiction is said to be exercised “sparingly” (Gedeon at [23]) or require “special reason” (Sankey v Whitlam (1978) 142 CLR 1 at 26 (Gibbs CJ) and 82 (Mason J) or “very special circumstances” (Shapowloff v Dunn [1973] 2 NSWLR 468 at 470 (Jacobs P writing for this Court) or to be “exceptional” (Hutson v Australian Securities and Investments Commission (2023) 17 QR 21; [2023] QCA 167 at [30]). Powerful discretionary factors ordinarily tell against entertaining applications which fragment criminal proceedings: Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [32].
Those considerations apply with much reduced force here. First, the proceedings are already delayed, because the judge raised the issue of Article 9 preventing reliance on her submission, and made directions adjourning the recusal application until March 2026 for further hearing on the question of parliamentary privilege. In the unusual circumstances of this already-fragmented trial, intervention by this Court will in fact promote the efficient resolution of the real issues.
Secondly, the Director and the President now agree that the concern expressed by the judge was misplaced. A final decision by this Court is the best way for the record to reflect our acceptance of that common stance.
Thirdly, the proceedings in this Court have been prosecuted with considerable and commendable expedition, enabling a determination of the issues which does not delay the already-delayed prosecution which prompted the application.
One strand of the President’s submissions emphasised that the limited mechanisms for interfering with interlocutory decisions in a criminal trial available under the Criminal Appeal Act 1912 (NSW) were not available and had not been employed, no doubt for good reason, which tended to suggest the discretion should not be exercised. It is true that avenues under the Criminal Appeal Act appear to be unavailable, but all that means is that this is a very unusual case.
Another strand was that this was a question of privilege, rather than power, and that there was no utility in determining any question of privilege when all of the parties who constituted the matter were agreed. It was said that there was “no interest of a kind analogous to whether somebody has suffered an assault as in , there is no interest in for what reasons the two or three parties in question have agreed on the outcome”. We disagree, for the reasons already explained when addressing jurisdiction.
The aspect of the dispute where the Director and President are agreed is simply stated. Let it be assumed that Article 9 properly construed would prevent the tender of the Judge’s Submission in an application for her recusal. It was common ground between the Director and the President that Article 9 could not validly have the effect of denying a party’s entitlement to apply for recusal, nor could it deny a party’s entitlement to have the litigation heard and determined by a validly constituted court, which is to say, by a judicial officer not affected by the apprehension of bias. The parties proceeded on the basis that the limitation upon legislative power in Kable had the consequence that Article 9 could not be made applicable by the Imperial Acts Application Act 1969 (NSW) to the District Court in those circumstances.
Alone amongst the parties, the Commonwealth Attorney contended that the limitation upon power in Kable did not preclude parliamentary privilege from preventing the tender of the judge’s submission in support of a recusal application. That was because there were “at least four broad avenues” which could be relied upon to avoid the result of a judge affected by apprehended bias presiding over the criminal trial. Essentially, the Commonwealth Attorney submitted that by one or other of those mechanisms, a litigant could obtain the constitutionally-mandated result of a court unaffected by the apprehension of bias, without having to tender the privileged material in support of a recusal application. The consequence was, so it was said, that it was unnecessary for the limitation of power in Kable to cut back on Article 9’s direct operation on the tender in court.
The first “avenue” was that the judge be approached in chambers. The second was that the evidential basis of the submission might be adduced in some other way, such as by the judge being invited himself or herself to repeat the gravamen of the submission. The third was an application for a stay. The fourth was appeal or judicial review.
The Director and the President submitted that the “four broad avenues” were no answer to an overreach by Article 9 assuming it applied to prevent a recusal application. It is not necessary separately to summarise their submissions.
The premise of all four avenues propounded by the Commonwealth Attorney was that Article 9 applied to prevent the tender of the Judge’s Submission in support of a recusal application. At the outset, it is convenient to note that at least the first two may fairly be characterised as doing indirectly what cannot be done directly. It is most unlikely that something so basic as the protection of freedom of speech in Parliament is susceptible to such an approach. Why would a principle which ex hypothesi prevents the direct use of a submission to support an application for disqualification not likewise prevent the same result achieved by less direct means, such as approaching the judge in chambers, or inviting the judge to volunteer the information? That is not how constitutional constraints tend to work.
An inability to determine a recusal application would not, of course, lead to a permanent stay of the underlying proceeding. But, by analogy, if it were simply impossible to determine a recusal application appropriately without impeaching or questioning parliamentary materials, orders could be fashioned to address that situation. The recusal application itself might be permanently stayed and the further hearing of the underlying proceeding temporarily stayed, pending reallocation to a different judge. Or, most simply, the judge may make orders to progress a reallocation. Such orders would be made, not because the judge had been found to be disqualified, but because it was impossible fairly to determine that question as a result of the operation of Article 9.
BEGBIE: Avenues 1 and 2 have failed, but what they have led to is the need for a formal recusal application. In addition, and sensibly in the alternative, an application for a stay of the recusal application if it can’t be fairly determined.
LEEMING JA: Who’s making the application?
BEGBIE: In this case it would be the DPP. That is, they’re the moving party.
LEEMING JA: The DPP is making an application for a stay of her own application?
BEGBIE: Yes.
LEEMING JA: I don’t understand that.
BEGBIE: I don’t get wedded to the form, but the application is that your Honour recuse yourself or whatever is the appropriate order, or if your Honour does not or cannot receive the parliamentary material, that this application be stayed or adjourned sine die.
LEEMING JA: What happens to the criminal trial?
BEGBIE: What happens to the criminal trial at that point is that the judge having done that needs to make whatever arrangements are necessary for the matter to be reallocated. The reason for that is that the judge is not in a position to determine her own jurisdiction.
LEEMING JA: Okay, so the DPP wins.
BEGBIE: That would be the practical outcome.
…
LEEMING JA: Just to test out the consequences, suppose, as is often the case, there’s a finely balanced question, putting to one side Article 9, about whether the judge should disqualify himself or herself. The DPP says yes. The accused wants to say no, no, I want to hold onto this judge. … That debate doesn’t get to be had in this scenario where there’s a properly founded claim for Article 9. The judicial officer who might have heard ten days doesn’t get to determine whether the double might test is satisfied. Instead the proceedings get reallocated and you start the trial again. The accused person, as it happens in this case because it’s coming from the DPP, is put to the burden of another trial.
BEGBIE: That may have to be the outcome in cases in which all of those, as it were, holes in the cheese line up. That’s what sometimes happens.
We do not accept that the potential for this “avenue” to be adopted produces the consequence that Article 9 validly prevents the tender of a submission.
First, it is one thing for a litigant responding to a claim to be denied a particular defence because of parliamentary privilege, and on that basis to contend that the proceeding must be stayed because it cannot be adjudicated without injustice, as occurred in Television New Zealand Ltd v Prebble [1993] 3 NZLR 513 and in some other defamation actions. It is another thing entirely for the moving party to an application to be denied the ability to tender evidence which will ground the application, and on that basis to contend that (a) that party’s own application must be permanently stayed because it cannot be adjudicated without injustice and (b) the underlying proceeding must be temporarily stayed until it is reallocated to another judge. The authorities on which the Commonwealth Attorney relied, all of which were applications in defamation actions determined on the pleadings and particulars, do not go nearly so far.
Secondly, the second step (namely, the interim stay pending reallocation to another judge because the recusal application cannot be adjudicated without injustice) amounts to victory to the moving party, but on a different and more readily satisfied basis than the party would otherwise enjoy. As the Director submitted, the result is a distortion of the judicial process. On the Commonwealth Attorney’s approach, there will be judges who should not recuse themselves who will end up not hearing a trial, and litigants whose applications for recusal ought on ordinary principles to fail who will succeed in replacing the judge. It is, with respect, bizarre that an indirect approach which is said to outflank the implied limitations on legislative power sourced in Chapter III of the Constitution brings about a distortion of the judicial process.
Thirdly, the elaborate mechanism does not, upon analysis, avoid a contravention of Article 9, as may be seen if what is involved is considered in more detail.
It is to be borne in mind that the premise of the Commonwealth Attorney’s submission is that there is material which attracts parliamentary privilege and which is capable of grounding an application for recusal. The moving party must tender that material. It was said that that would occur “on a bene esse basis”, as though a Latin incantation would assist. What was meant was that the material would be tendered provisionally, for the limited purpose of the judge being satisfied that (a) the material attracted parliamentary privilege and (b) the material was capable of giving rise to a proper basis for a recusal application. (If either of those conditions is not satisfied, the application fails, but it is to be borne in mind that the premise of this “avenue” is that a party has a basis for a recusal application but cannot advance it because Article 9 prevents just that.) Having formed the view that the material attracted parliamentary privilege and was capable of giving rise to a recusal application, the judge is then to accede to the moving party’s request to decline to determine the recusal application, but to take precisely those steps which would be taken if the recusal application had been made and had succeeded, namely, cease to sit and have the proceeding allocated to another judge.
The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.
Section 49 provides a default position for the newly created chambers of the Commonwealth Parliament, which are to enjoy the powers, privileges and immunities of the House of Commons in 1901. However, by a “declaration” that could be changed.
The Commonwealth Attorney submitted that s 49 picked up Article 9, and relevantly stood “in a special relation to Chapter III”. It was said that s 49 was “absolute”, while the Chapter III requirement for impartiality was “inherently evaluative”. It was said that Chapter III did not derogate from Article 9 at the federal level, and, “It is not a consequence of the necessary impartiality of a Chapter III court that Article 9 would yield”, and that when one moves to a State court, there cannot be “a more stringent standard or grade of justice for a State court, a State repository of judicial power, than is required of a Federal Court”.
We do not accept any of this.
The portion of s 49 upon which the Commonwealth Attorney relied is the opposite of “absolute”. It is defeasible. The starting point that the powers, privileges and immunities of the House of Commons apply is just that: a starting point. Section 49 provides expressly that, after 1901, those powers, privileges and immunities may be enlarged or shrunk. They may vary from time to time. Thus if, for example, the Parliamentary Privileges Act 1987 (Cth) had adopted the course in R v Murphy (1986) 5 NSWLR 18 and expressly permitted cross-examination based on what had been said in Parliament, the stronger view of Article 9 which is generally upheld would be displaced. It is difficult for that reason alone to see how s 49 could have any effect on the implications restricting legislative power which flow from Chapter III. It is also obvious that legislation enacted as contemplated by s 49 cannot override restrictions on legislative power derived from Chapter III. Bearing those points in mind, why ever should the default position which obtained before the newly created Commonwealth Parliament acts as contemplated by s 49 somehow fetter the implications derived from Chapter III? It follows that s 49 is not a separate basis for fending off the consequence that Article 9 cannot apply to a court because if it did it would contravene a constitutionally entrenched minimum. Of course, s 49 is ever more removed from anything that enhances or curtails the effect of Chapter III on the powers, privileges and immunities of a Parliament of a State.
Having addressed jurisdiction, discretion and the Commonwealth Attorney’s submissions based on the alternative avenues and s 49, we are left with the common position of all active participants in this litigation that if Article 9 were as a matter of construction to prevent a litigant from tendering a document in support of a recusal application, then it cannot validly do so. Chapter III insists that the court be constituted so as to be free from bias or the apprehension of bias; the operation of Article 9 cannot produce a different result.
That common ground masks a disagreement as to whether the inapplicability of Article 9 to the tender of the Judge’s Submission is a matter of construction of Article 9 or its cutting back on a constitutional basis. The parties exchanged careful submissions on the issue of construction. In large measure, the complexity of those submissions reflected the reality that the Australian decisions on Article 9 do not speak with one voice. This Court was taken to the divided decisions of the Queensland Court of Appeal in Erglis v Buckley [2004] 2 Qd R 599 and the Full Court of the South Australian Supreme Court in Rann v Olsen (2000) 76 SASR 450; [2000] SASC 83. Issue was squarely joined on whether this Court should follow the reasoning of Edelman J in Attorney-General *(*Tas) v Casimaty [2024] HCA 31; 98 ALJR 1139 as to how Article 9 fell to be applied, and the correctness of the reasons of McDougall J in McCloy v The Honourable Megan Latham [2015] NSWSC 1782. The submissions also noticed that not all that is said in jurisdictions where s 16 of the Parliamentary Privileges Act or its equivalent applies necessarily carries through to the position in New South Wales. The submissions extended to overseas jurisdictions where Article 9 applied, with the Director and the President being divided as to the weight to be given to overseas decisions, notably Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] UKPC 48; [2007] 1 WLR 2825. Although for reasons mentioned below we shall not summarise them in any detail, they were of a high calibre.
However, notwithstanding those submissions, both the Director and the President urged this Court to take a minimal approach, noting that it was unnecessary to resolve many aspects of controversy concerning Article 9.
We respectfully agree with the wisdom of a restrained approach. It is appropriate because the parties’ agreement renders anything said on those issues to be obiter dicta. Further, this Court would ordinarily refrain from reviewing the correctness of a decision of McDougall J, or the reasons of the only judge of the High Court who addressed this issue in a fully argued appeal, where it was not necessary in order to resolve the proceeding. And there is the practical consideration that the sooner this Court’s decision is published, the sooner the Director’s much delayed recusal application can be heard and determined.
The meaning to be given to Article 9 is complicated. Part of the difficulty is the unusual, ancient language; part is the body of law which has built up around it; and part is relating the provision to the constitutional circumstances of Australia in the 21st century.
How Article 9 applies in New South Wales is unusual. Article 9 is the ninth, originally unnumbered, resolution declared by a newly elected Parliament in February 1689 (which year was known at the time as 1688: see the Calendar *(*New Style) Act 1750 (24 Geo II c 23) and Cadia Holdings Pty Ltd v State of New South Wales (2010) 242 CLR 195; [2010] HCA 27 at [98]). The Crown and Parliament Recognition Act 1689 (2 W and M c 1) provided that the Acts made and enacted in the so-called “Convention parliament” of February 1689 “were and are Laws and Statutes of this Kingdome”. The Imperial Acts Application Act makes the “Bill of Rights 1688” in force in New South Wales, as was said in Arena v Nader [1997] HCATrans 284. What precisely that means is considered further below.
The text of Article 9 falls well short of the broad meaning which is regularly ascribed to it. The text provides only that:
That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.
That is to say, Article 9 is expressed in terms of what “ought not” to be done, rather than as a command. The content of “impeached or questioned” is left unstated. (So too is the scope of “Proceedings in Parlyament”, but it has been common ground, and properly so, that a submission provided to a Parliamentary Committee falls within its scope. Petitions have been presented to Parliament for many centuries (as may be seen in H Cam, The Hundred and the Hundred Rolls (1930, reprinted Routledge, 2025), Part II, by reference to the returns of Edward I’s inquests following his return to England in 1274), but an action for slander has long been held not to lie even if a petition is false and scandalous: Lake v King (1680) 1 Wms Saunders 131; 85 ER 137; E Campbell, Parliamentary Privilege (Federation Press, 2003), 11.)
If a textual approach leads to difficulties in construing Article 9, so too does a contextual approach. It is all too easy to confine attention to Article 9 in isolation. But if one adopted the ordinary course of reading the Bill of Rights as a whole, or looking to the preamble to identify the mischief to which it was directed, one would notice the correlation between the preamble and the substantive provisions of the declarations made by the House of Lords and the House of Commons. The preamble commences by identifying a variety of ways in which King James II and “diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome”, and then recites a list of particular complaints which correlate with the articles. Thus Article 7 states that “Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law”, which reflects the complaint in the preamble of officers under the previous regime “causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law”. Article 8 provides that “Election of Members of Parlyament ought to be free”, which is a response to a complaint of James II’s officers “Violating the Freedome of Election of Members to serve in Parlyament”. The close connection between preamble and corresponding article is clear. Yet the following paragraphs of the preamble, which might be expected to correspond with Article 9, refer to “Prosecutions in the Court of Kings Bench for Matters and Causes cognizable onely in Parlyament and by diverse other Arbitrary and Illegall Courses”. As is explained in M Chamberlain and J Segan, “Parliamentary Privilege, Article 9 of the Bill of Rights and Admissibility: What Use Can Be Made of Parliamentary Materials in Litigation” (2018) 23 Judicial Review 11 at 12, that is a reference to Sir John Eliot’s Case (1629) 3 St Tr 294, where three Members of Parliament were prosecuted for making seditious speeches in Parliament. Two were imprisoned in the Tower for 11 years; Sir John Eliot himself died before being released.
There are potentially two different ways in which the application of Article 9 might be confined when its unconfined operation would intrude into basic aspects of a trial.
One approach is to give a very broad meaning to Article 9, and then to ask to what extent is that cut down by reason of the operation of an implication from the text and structure of Chapter III of the Commonwealth Constitution associated with Kable with which courts have over the last three decades become familiar. That is an approach which is well-suited to cutting back generally worded overreaching laws.
The New South Wales Attorney favoured that approach. He submitted that “Kable is a preferable analysis because it supplies the true reason why judges are in a different position from other decision makers”. We doubt that that is so. That may be seen by an example. Ordinarily, an incident of an independent non-curial tribunal, such as NCAT, is that the members constituting it will be free from apparent bias, and the test to be applied is substantially the same. Indeed, some sitting judges are members of NCAT. It would be passing strange if a judge made a submission to Parliament which founded an application for apprehended bias, and a different test applied depending on whether the judge was sitting as a member of a court or as a member of a tribunal. That oddness comes about because the limitation on legislative power in Kable applies to courts capable of exercising federal jurisdiction, and does not (or at least does not directly) apply to independent tribunals.
This point is not without importance. It is the conduct of a judge which has given rise to this litigation, but the parties’ submissions briefly touched on the position if a member of a State tribunal makes a submission to Parliament which grounds an application for apprehended bias. Indeed, the issue is more likely to arise in the case of a tribunal, because tribunal members are more numerous than judges, and many are part-time, and many are specialists in their fields and need not be legally trained, and are not necessarily subject to the same restraints on public expression of views as judicial office-holders.
The real reason for doubting that Kable is the preferable analysis is that the analysis assumes that Article 9’s operation is overreaching, such that it offends a constitutional limitation. But why assume that Article 9, and the concomitant body of law which has built up around it over more than three centuries, exhibits such overreach in the first place? The proposition that Article 9 should not be narrowly construed does not mean that it should be construed so as to collide with other constitutional norms and principles.
An alternative approach responds to the reality that Article 9 has not been construed as if it were an ordinary statute, but in fact itself bears the character of a basic constitutional principle. Indeed, Mr Lim SC appearing for the New South Wales Attorney referred to Article 9 as a “rule”, and although one of us (Leeming JA) queried that usage during the hearing, on reflection the language illustrates the fact that some aspects of its operation are quite different from the operation of a statute. In fact, there is some precedent for this. A famous passage from Sir Matthew Hale’s resonates with the position concerning Article 9 of the Bill of Rights. When writing of statutes enacted some four hundred years earlier in the reigns of Henry III and Edward I and Edward II, Hale said that they were:
yet so ancient, that they now seem to have been, as it were, a part of the common law, especially considering the many expositions that have been made of them in the several successions of times, whereby as they became the great subject of judicial resolutions and decisions; so those expositions and decisions, together also with those old statutes themselves, are as it were incorporated into the very common law, and become a part of it: M Hale, History of the Common Law (5th ed edited by C Runnington, 1794, London) 11.
What is involved in this litigation in substance is a conflict between two basic constitutional principles, one concerning the freedom of speech in Parliament, the other concerning the essential characteristics of courts. It is to be doubted that the resolution of a conflict between those principles is to be found in an implication deriving from the potential to invest federal jurisdiction in State courts in accordance with Chapter III of the Commonwealth Constitution. Apart from anything else, the issue is much broader, and applies in many jurisdictions which are not federations, or in which there is no equivalent to Kable.
Moreover, there is a long line of authority that Article 9 is a manifestation of the bilateral principle that the courts and Parliament are both astute to recognise their respective constitutional roles: see for example Unions NSW v New South Wales (2023) 277 CLR 627; [2023] HCA 4 at [27], citing Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332. That could be reflected in on the one hand giving the privilege reflected in the words “impeached or questioned” a broad operation. On the other hand, the principle that a court is to determine a matter in a way that is procedurally fair, one aspect of which is that the judicial officer is not affected by the apprehension of bias, is also to be given a broad operation. The resolution between those two principles may very well be not that one overrides the other, but that neither extends to the domain occupied by the other.
The foregoing analysis was, or may have been, inherent in the Director’s submission, encapsulated as follows:
So the essential difference between us and all of the other parties is the sort of considerations which animate Kable, upon which we all agree, we submit can be found in Article 9 itself once it is understood harmonised with the wider principles of constitutional law that had built up over 400 years.
Finally, we turn to the debate between the parties as to the operation of Article 9 in a recusal application. The Director said that Article 9 was not offended by the use of parliamentary material in statutory construction: Pepper (Inspector of Taxes) v Hart. Nor was it offended in certain classes of judicial review of administrative action: Toussaint v Attorney General of Saint Vincent and the Grenadines. Nor, relying on the reasoning in Rann v Olsen at [60]-[77], did even the more specific prohibitions in s 16(3) of the Parliamentary Privileges Act prevent reliance on what was said in Parliament to establish a defence of qualified privilege. In the latter decision, Doyle CJ distinguished between the precluded purpose of questioning the truth of what the member (Mr Rann) said or questioning his credibility or motive, and the legitimate use of making a finding as to the defendant’s (Mr Olsen’s) state of mind when he heard what Mr Rann had said, observing that the distinction was narrow, but critical: at [68]. Counsel for the Director added that it was not a long bow to draw an analogy between what happens in an apprehended bias case.
On the other hand, save for what was styled a “degenerate category of inferences”, the New South Wales Attorney, supported by the President, contended that any implied or implicit criticism or questioning of parliamentary speech was forbidden. An exception was where Hansard established the presence of a member in the chambers, as noted in Mees v Roads Corporation (2003) 128 FCR 418; [2003] FCA 306 at [80]. To that might be added matters of record such as the times at which bills were presented to a chamber, in that rare class of case where a court intervenes to ensure that procedural requirements have been complied with: see Cormack v Cope (1974) 131 CLR 432; [1974] HCA 28 (noting that the Commonwealth Attorney raised the operation of Article 9 at 441, but at least one member of the Court had no difficulty in dealing with it: at 455); see also Jackson v Attorney General [2006] 1 AC 262; [2005] UKHL 56. It was said that reliance on extrinsic materials for the purposes of statutory construction fell into a different category because the process was not so much an inference of fact, but an inquiry of a legal nature in identifying the (so-called) parliamentary intention.
We acknowledge the force of the submissions advanced on behalf of the New South Wales Attorney to the effect that it may be difficult to remove completely all implicit criticism from a document tendered in support of an application for apprehended bias. Mr Lim SC went so far as to say that it was “virtually inevitable” that in the course of identifying the logical connection between the parliamentary materials and the conclusion that the judge might deviate from the merits, the court would be going beyond the historical fact of what was said in Parliament. But while it is not necessary to reach a firm conclusion, we are disinclined to think that is the test. Mr Lim’s submission has force, but only if it extends to all inferences which can be drawn. The question is one of substance, and not every inference that may be formulated by an imaginative lawyer amounts to questioning or impeaching contrary to Article 9.
For those reasons, this Court can and should issue declaratory relief.
At the conclusion of his address in reply, senior counsel for the Director urged this Court to “decide the narrowest possible thing you have to decide”. There is common ground between the Director and President as to the form of the declaration.
The Director’s reply submission said that a declaration that “Art 9 of the Bill of Rights does not operate validly to prevent the Director from making (and the District Court from determining) a recusal application on the ground of apprehended bias by reference to the [Judge’s] Submission” would be sufficient. In answer to questions from the Court, senior counsel acknowledged a further limitation, which should tie the submissions made in support of such an application to submissions of the sort contained in the Director’s existing written submissions seeking recusal. Those submissions follow a conventional course, and refer to the terms of the Judge’s Submission. While it is true that there is arguably some implicit criticism in those submissions, which at one point describe her Honour’s conduct in making the submission as “extraordinary”, in the circumstances of this case the submission falls well short of impeaching or questioning the submission. The fact of the matter is that none at the Bar table (nor any member of the Bench) is aware of a sitting judge making a submission to a Parliamentary Committee about the conduct of a litigant in pending proceedings before the judge; on any view, “extraordinary” fairly describes what has occurred, without questioning or impeaching any aspect of her Honour’s decision to do so.
As between themselves, the Director and President did not seek costs. Notwithstanding the fact that the intervention of the Commonwealth Attorney extended the hearing into a second day, we did not understand either party to seek costs against any intervener. Accordingly, the Court will order as follows:
1. Declare that Article 9 of the Bill of Rights does not operate validly to prevent the Director from making (and the District Court from determining) a recusal application on the ground of apprehended bias by reference to the Judge’s Submission dated 28 November 2025 and in accordance with the written submissions filed by the Director on 9 December 2025.
2. Otherwise dismiss the summons filed on 15 December 2025.
**********
[27]: “permitted” replaced with “precluded”
[12]: deleted “of” to read “or the merits…”
Director of Public Prosecutions (NSW)
President of the Legislative Council of New South Wales [2026] NSWCA 20
(1970) 124 CLR 262
(2010) 242 CLR 195
(1990) 170 CLR 516
(2024) 116 NSWLR 314
(1974) 131 CLR 432
(1971) 124 CLR 317
(2000) 205 CLR 337
Declared that Article 9 does not operate validly to prevent the Director from making, and the District Court from determining, the specified recusal application; otherwise dismissed the summons.
This judgment resolves the issues raised in those proceedings by granting limited declaratory relief. All sides urged this Court to adopt a cautious approach, determining only what was necessary, in accordance with “the standard common law judicial technique of deciding no more than what needs to be decided”: Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 at [76]. It is as well to be clear what this judgment determines, and what it does not determine.
Thirdly, the agreement between the Director and President does not stand in the way of declaratory relief issuing. It is true that there should be “a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought”, as Lord Dunedin put it in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448. Even if no party opposed the declaratory relief which is sought, to the effect that the Judge’s Submission can be tendered in support of a recusal application without infringing Article 9, that would not prevent a declaration from issuing. The requirement of a contradictor is satisfied by the fact that the President has been joined and has a true interest in the Director’s claim, even though he ultimately did not oppose the relief sought. The authorities are collected in Catholic Metropolitan Cemeteries Trust v Attorney General of New South Wales (2024) 116 NSWLR 314; [2024] NSWCA 30 at [26].
Accordingly, we do not accept the President’s submission that the agreement between the President and the Director that Article 9 does not stand in the way of the tender of the submission means that this Court lacks jurisdiction to grant declaratory relief.
But in any event, the Commonwealth Attorney actively opposed most of the relief sought by the Director. The Commonwealth Attorney is a party to the proceeding in this Court. Federal statute entitled her to notice that there was a matter arising under the Constitution pending in this Court, and to intervene in that proceeding: Judiciary Act, ss 78A and 78B. The Commonwealth Attorney maintains that Article 9 does prevent the tender of the submissions, doing so on two bases: because other “broad avenues” are available to avoid the impairment of institutional integrity of the District Court, and also because of the effect of s 49 of the Constitution. Those arguments are addressed below on their merits. But for the purposes of jurisdiction, the Commonwealth Attorney’s stance means that there is a dispute between the parties, notwithstanding the agreement which has emerged between the Director and the President.
Against this, the President contended that the actual dispute reflected in the Commonwealth Attorney’s opposition to the declaratory relief that was common ground as between the Director and the President could and should be disregarded. The President noted that s 78A(3) treats an intervening Attorney-General as a party for the purpose of an appeal, thereby implicitly distinguishing her status from that of an ordinary party for other purposes. We do not consider that that argument, only lightly advanced, which ultimately bears the character of an expressio unius submission, carries any weight. That may once again be seen by examining the position from first principles.
Neither the Commonwealth itself, nor its representative the Commonwealth Attorney-General, is a party to or has any direct interest in the pending prosecution in the District Court. However, the Commonwealth has an undoubted interest in the operation of any implied limitation upon legislative power, whether at the Commonwealth or the State level, which arises on the attempt by the Director to tender the Judge’s Submission in the form published by the Parliamentary Committee.
The Commonwealth and each State has an “interest” in any question of Commonwealth legislative power, not least because State laws are inoperative to the extent they are inconsistent with valid federal laws. Each State plainly has an “interest” in any express or implied limitation on the general grant of State legislative power, and if those limitations arise because no Australian polity has legislative power to enact the particular law, or because only the Commonwealth Parliament has legislative power to enact the law, then the Commonwealth equally has an “interest”. The word “interest” has long been used, including in non-federal contexts, to describe the circumstances when a person may intervene in litigation.
Sections 78A and 78B of the Judiciary Act were enacted following what were perceived as difficulties in the practice of the High Court when constitutional issues arose during private litigation; an example may be seen in Attorney-General *(*NSW) v Stocks and Holdings *(*Constructors) Pty Ltd (1970) 124 CLR 262; [1970] HCA 58, concerning s 52 of the Constitution, based on the grant of consent to operate a hotel on land which had formerly been acquired by the Commonwealth as a rifle range for the defence forces, which was removed to the High Court on the New South Wales Attorney’s application, in which the Attorneys-General for the States of Queensland and South Australia were permitted to intervene by leave, but where the High Court refused leave to the Commonwealth to intervene: see 124 CLR at 265, 266.
That is to say, ss 78A and 78B are not to be seen as an artificial expansion of the notion of parties to litigation. They reflect the nature of the interests of the constituent polities in the federal structure of government in a system where disputes are resolved by courts in the exercise of federal jurisdiction.
That conclusion accords with what was held in Williams v The Commonwealth (2012) 248 CLR 156; [2012] HCA 23, as Mr Lim SC observed. The Commonwealth resisted the relief sought by Mr Williams claiming that he lacked standing. However, the point became arid because six States had intervened pursuant to s 78A in his support, with Gummow and Bell JJ noting at [112] that “questions of standing may be put to one side” and that “[e]ven without s 78A, any State would have a sufficient interest in the observance by the Commonwealth of the bounds of the executive power assigned to it by the Constitution to give the State standing”. French CJ, Hayne, Crennan and Kiefel JJ agreed with the reasons of Gummow and Bell JJ on this issue: at [9], [168], [475] and [557].
Separately from all of the above, there remains a lively dispute between the President and the Director. The Director contends that Article 9 as a matter of construction does not prevent the tender of the submission, while the President maintains that it does. True it is that in the urgent circumstances of this litigation, there are powerful reasons for not determining this aspect of the dispute. But that is a matter of discretion. The extant dispute means there continues to be a justiciable controversy, amounting to a “matter” arising under the Constitution, which is capable of resolution by the exercise of judicial power by this Court, resolving the competing submissions as to construction.
For all those reasons, we do not accept the President’s submission that the summons should be dismissed for want of jurisdiction.
The first, second and fourth avenues are readily despatched.
If Article 9 prevented the tender of the Judge’s Submission in open court in support of a recusal application, then it would also prevent the deployment of the submission in the judge’s chambers in order to achieve the same end. Article 9 is not confined to impeaching or questioning in courts. It extends to any place outside Parliament. We would add that there is in our view nothing to commend an approach which relies upon an application taking place in private in order to bring about a constitutionally-mandated outcome, namely, a court unaffected by the apprehension of bias. One purpose of the minimal requirements demanded by the Constitution is that the administration of justice be seen to be done.
The second avenue seeks to pick up an exception to the operation of Article 9 developed in actions for defamation, where the statement made in Parliament is repeated outside Parliament. The short answer is that this will only work if the judge repeats the matters in a way that does not attract privilege. As the unsuccessful attempt made on 12 December 2025 demonstrates, that need not occur.
The fourth avenue does not work at all. If the submission cannot be used to support the recusal application made directly to the judge, it is not available to a court exercising appellate or supervisory jurisdiction. Nor, given what is said below about the third avenue, could an appeal from the refusal to reallocate the matter to another judge or to grant a stay prevent or remedy Article 9’s overreach.
The first, second and fourth avenues are simple to state, and simple to reject. The third avenue is more complex. Accordingly, it was elaborated at length, in writing and orally.
The premise of the third avenue propounded by the Commonwealth Attorney is that there is a proper basis for the assertion of privilege and that properly asserted privilege stands in the way of the determination of an application for recusal based on apprehended bias. The third avenue propounded by the Commonwealth Attorney would result in a stay, by loose analogy with what has sometimes occurred in defamation actions which cannot fairly be litigated because of claims of parliamentary privilege. The Judge’s Submission would be tendered on the application, in order to demonstrate there was a proper basis for the recusal application, but there would be no determination of the question whether or not the test for recusal was satisfied, for doing so would, according to the Commonwealth Attorney, contravene Article 9. Therefore, because the applicant’s own recusal application could not be determined, then that application would itself be stayed, and the underlying proceeding temporarily stayed pending reallocation.
It was summarised thus in writing:
We fail to see how this avoids a collision with Article 9, assuming as we must for the sake of dealing with this submission that Article 9 would prevent the direct tender in support of a recusal application. But if asking the judge directly to recuse himself or herself would involve “questioning or impeaching” what was said in Parliament, why would not also this indirect approach?
Article 9 reflects an important principle, which can fairly be described as constitutional: parliamentary speech is not to be questioned or impeached. Ordinarily, constitutional prohibitions cannot be avoided by doing indirectly what cannot be done directly: Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; [2000] HCA 34 at [29], approved in Work Choices C**ase (2006) 229 CLR 1; [2006] HCA 52 at [228]. Chief Justice Dixon once famously said, “It is a time-honoured principle that you cannot do indirectly what you are forbidden to do directly. It would be strange if the principle did not apply to the effectuation of a constitutional limitation or restriction like s 92”: Wragg v New South Wales (1953) 88 CLR 353 at 388; [1953] HCA 34; the same is surely true of Article 9. Indeed, the Commonwealth Attorney’s third avenue well answers the description given in Caltex Oil *(*Aust) Pty Ltd v Best (1990) 170 CLR 516 at 523; [1990] HCA 53, namely that “the adoption of a circuitous device with a view to avoiding the need to comply with a constitutional requirement will be of no avail”.
Fourthly, the outcome is at least potentially unjust to the other side. It is very unjust if the other side, who may have been content with the way the judge had conducted the trial to date, is faced with the delay and cost of a new trial before a different judge, and not on the basis that the party seeking recusal was entitled to a judge free from apparent bias, but instead on a more easily satisfied basis, namely, that there was material protected by parliamentary privilege which was capable of founding an application that the other side was prevented from making.
The solution is that Article 9 does not prohibit the tender of privileged material solely for the purpose of establishing what was said in, or submitted to, Parliament. But before reaching that conclusion, it is first necessary to address the Commonwealth Attorney’s further point, based on s 49 of the Constitution.
What follows is not necessary to this Court’s orders, but may assist in refining arguments in some later case.
Thus the immediate context, and even the broader context based on concerns of a return to a Catholic monarchy coupled with political and economic subjugation to the France of Louis XIV, is well removed from the concerns to which Article 9 is directed in New South Wales in the 21st century.
On any view, Article 9 as currently understood goes much further than the mischief to which it was directed in its preamble. That is achieved by a process which is quite different from the ordinary approach of construing the text and context of a modern statute. A body of law has built up around Article 9, and the application of the provision in New South Wales by reason of the Imperial Acts Application Act, is to be understood as carrying with it that body of law. That body of law does not merely comprise decisions of courts. By way of example, the Parliamentary Papers Act 1840 (3 & 4 Vict c 9) was enacted to overturn the ruling in Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 that authorised publishers of reports of parliamentary proceedings were not protected by Article 9.
The foregoing illustrates that Article 9 is not to be read as an ordinary statute. Instead, it is “a provision of the highest constitutional importance and should not be narrowly construed”: Pepper *(*Inspector of Taxes) v Hart [1993] AC 593 at 638D, a sentiment which has regularly been repeated. But that does not mean that its scope is unlimited.
This may be tested by what occurs in ordinary litigation. When a second reading speech, or an extract from Hansard, is tendered in order to support a submission as to the construction of legislation, it is far from uncommon for one side to do so on the basis that the speaker was not alive to the controversy before the Court, even though that may be thought to have been relatively obvious. Another common purpose of tendering the materials to show the passage of legislation is to establish that the legislation was enacted very speedily, with little time for debate, and that may carry the inference that the measure was not well thought through. But those considerations do not stand in the way of the use of Hansard in a court. There may in a sense be an implicit criticism of what had occurred, but that is well removed from the impeaching or questioning to which Article 9 is directed. The purpose of the tender is simply to establish what was said.
Turning to the application for recusal based on apprehended bias, there is, as the Director said, some similarity with the distinction drawn by Doyle CJ in Rann v Olsen. It is to be borne in mind that the purpose of the tender is to establish that the submission has been made, as the evidential foundation for the conclusion that a fair-minded observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the litigation. As has often been noted, that test is objective, and does not involve forming any view on how the judge will actually proceed. It is well-settled that the judge’s actual state of mind is irrelevant (see for example Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [61]), and there should be no occasion to make any submissions, let alone to draw any conclusions, about the judicial officer’s state of mind. Indeed, it is very common for counsel advancing such a submission to say expressly that it is not for a moment suggested that the judicial officer would in fact bring anything other than an impartial and independent mind to the case. Advocates tend to adopt that stance so as to depersonalise the application, but the fact that they can do so reflects the fact that neither the making of the application nor its determination involves any inquiry into the judge’s mental state.
Further, it must be borne in mind that the question is doubly hypothetical. It is necessary to establish only that a fair-minded observer might think that the judge might not bring an impartial mind to the litigation (noting that the hypothetical fair minded observer is no more than an analytical construct: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 at [45], [85], [175] and [249]-[255]). We incline to the view that that can be done, at least in many cases, without questioning or impeaching what was in fact said in Parliament which attracted privilege. On this basis, Article 9 would not apply as a matter of construction, without reaching constitutional considerations. However, in part because this litigation has occurred before the recusal application has been made, and in part because of the judicial economy urged upon this Court by the parties, we do not reach a concluded view on this issue.
(1972) 127 CLR 421
(2008) 236 CLR 120
(1972) 126 CLR 52
(2015) 255 CLR 135
(1996) 189 CLR 51
(2017) 94 NSWLR 36
(2019) 267 CLR 560
(2003) 128 FCR 418
(2023) 279 CLR 148
(1986) 5 NSWLR 18
(2000) 76 SASR 450
(2000) 203 CLR 346
(1978) 142 CLR 1
(2013) 252 CLR 118
(2023) 277 CLR 627
(2012) 248 CLR 156
(2006) 229 CLR 1
(1953) 88 CLR 353