EGAN v CHADWICK & ORS

New South Wales Court of Appeal CITATION : EGAN v CHADWICK & ORS [1999] NSWCA 176 revised - 04/08/99 FILE NUMBER(S) : CA 40828/98 HEARING DATE(S) : 24/11/98, 27/11/98, 14/12/98 JUDGMENT DATE : 10 June 1999

Michael EGAN (Plaintiff) PARTIES : Virginia Anne CHADWICK (Defendant) John Denton EVANS (Second Defendant) Warren Cameron CAHILL (Third Defendant) JUDGMENT OF : Spigelman CJ at 1; Priestley JA at 96; Meagher JA at 150

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : ALD 30102/98 LOWER COURT JUDICIAL OFFICER :

COUNSEL : S J Gageler / M J Leeming (Plaintiff) B W Walker SC / P T Taylor (Defendant) SOLICITORS : I V Knight, State Crown Solicitor (Plaintiff) Corrs Chambers Westgarth (Defendant) CATCHWORDS : CONSTITUTIONAL LAW; Parliament (NSW); Legislative Council; powers; non-compliance by Member of Legislative Council with order for production; suspension of Member from service of the Council; forcible removal of Member from the House; claim of trespass to person; justification; lawful authority; whether Council can require production of privileged documents; CONSTITUTIONAL LAW; responsible government; nature and operation of; collective ministerial responsibility of Cabinet; "reasonably necessary" for the performance of Council's constitutional functions; Cabinet documents; immunity from production; claim of public interest immunity; legal professional privilege; nature of privileges considered; CONSTITUTIONAL LAW; Judiciary; powers; claim of public interest immunity in respect of Cabinet documents; balancing process; whether a constitutional function of the judiciary ACTS CITED : Constitution Act 1902 (NSW) Crimes Act 1914 (Cth) DECISION : Proceedings dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SPIGELMAN CJ PRIESTLEY JA MEAGHER JA

Held, proceedings dismissed:

1. Power to call for documents Per curiam The Legislative Council's power to call for documents extends to compel the Executive to produce documents to the Council in respect of which a claim of legal professional privilege or public interest immunity is made.

Egan v Willis (1996) 40 NSWLR 650 and [1998] HCA 71; (1998) 158 ALR 527; (1998) 73 ALJR 75 applied.

Per Spigelman CJ, Meagher JA; Priestley JA dissenting It is not reasonably necessary for the proper exercise of the functions of the Legislative Council to call for documents the production of which is inconsistent with responsible government. System of responsible government considered.

Per Priestley JA, No legal right to absolute secrecy is given to any group of men and women in government as part of a truly representative democracy.

2. Legal professional privilege Per Spigelman CJ, Meagher JA agreeing The applicability of the doctrine of legal professional privilege depends upon the relationship between the persons in the context in which the issue of access arises. Where, as here, a special relationship known to the law exists, the determination of the right of one party to the relationship, to documents in the possession of the other party to the relationship, must be determined in accordance with the incidents of the relationship.

In performing its accountability function, the Legislative Council may require access to legal advice on the basis of which the Executive acted, or purported to act. Access to such advice may be relevant in order to make an informed assessment of the justification for the Executive decision. Accordingly, access to legal advice is reasonably necessary for the exercise by the Legislative Council of its functions. What, if any, access should occur is a matter "of the occasion and of the manner" of the exercise of a power, not of its existence. R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 187 applied.

Per Priestley JA, The justification for legal professional privilege does not apply when a House of Parliament seeks the production of Executive documents. It must have the power to call for information relevant to the fundamentally important task of reviewing, changing and adding to the statute law of the State. There will from time to time be information in Executive documents either necessary or useful for carrying out its task.

3. Public Interest Immunity Per Spigelman CJ, Meagher JA agreeing Performance of the legislative and accountability functions of the Legislative Council may require access to information the disclosure of which may harm the public interest. Access to such documents may be 'reasonably necessary' for the performance of its functions.

Per Spigelman CJ, It is not reasonably necessary for the performance of those functions to have the power to call for documents, the production of which would conflict with the doctrine of ministerial responsibility either in its individual or collective dimension.

The revelation of the actual deliberations of Cabinet is inconsistent with the doctrine of collective ministerial responsibility. The Commonwealth v Northern Land Council (1992-93) 176 CLR 604 referred to. The revelation of documents prepared outside Cabinet for submission to Cabinet may, or may not, depending on their content, be inconsistent with that doctrine. Attorney General v Jonathan Cape Ltd [1976] 1 QB 752; Air Canada v Secretary of State for Trade [1983] 2 AC 394 referred to.

Per Meagher JA, The immunity of Cabinet documents from production by the Legislative Council is complete. Production could not be compelled without subverting the doctrine of responsible government.

Per Priestley JA, The function and status of the Council in the system of government in New South Wales require and justify the same degree of trust being reposed in the Council as in the courts when dealing with documents in respect of which the Executive claims public interest immunity.

The courts undoubtedly have the power to compel production to themselves even of Cabinet documents. The Commonwealth v Northern Land Council (1993) 176 CLR 604 at 617-619 referred to. Equally there should be no objection, in the situation that arises between the Executive and a House of Parliament, to the possession by another branch of government other than the Executive, of the same power. ORDERS

Per Priestley & Meagher JJA, Spigelman CJ dissenting: Order the plaintiff to pay the defendant's costs.

• 70 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SPIGELMAN CJ PRIESTLEY JA MEAGHER JA

1 SPIGELMAN CJ: I have had the advantage of reading the judgment of Priestley JA in draft. I adopt his Honour's statement of the facts and of the issues in these proceedings. 2 This case is a successor to Egan v Willis (1996) 40 NSWLR 650 and [1998] HCA 71; 73 ALJR 75; 158 ALR 527. The judgments in that case set out the historical background of the relevant principles and of the role of courts in determining issues of this character. The decision in that case authoritatively established a number of propositions with respect to the circumstances in which the Legislative Council of New South Wales can require the production of documents:

(i) Each House exercises a constitutional function to make laws pursuant to s5 of the Constitution Act 1902 (NSW). (See NSWLR at 664G-665A Gleeson CJ; 677B-G Mahoney P; 692C-F Priestley JA; HCA at [49, 52] Gaudron, Gummow and Hayne JJ; [146-149] Kirby J; [178-189] Callinan J).

(ii) Each House performs the parliamentary function of review of executive conduct, in accordance with the principle of responsible government. (NSWLR at 665A Gleeson CJ; 677B-C Mahoney P; 692F-G and 693A Priestley JA; HCA at [42, 45, 46] Gaudron, Gummow and Hayne JJ; [100, 102, 103, 106, 107] McHugh J; [155] Kirby J).

(iii) The Legislative Council has such powers as are reasonably necessary for the proper exercise of its functions. (NSWLR at 664E, 665E, 667D Gleeson CJ; 676B-C Mahoney P; 692B Priestley JA; HCA at [31, 32, 48] Gaudron, Gummow and Hayne JJ; [138-141] Kirby J; [189] Callinan J).

(iv) Production of documents by Ministers is reasonably necessary for the performance of both functions (i) and (ii). (NSWLR at 664F, 667E Gleeson CJ; 677B-C Mahoney P; HCA at [53] Gaudron, Gummow and Hayne JJ; [63, 93, 102, 106] McHugh J; [148, 149, 151, 154] Kirby J; [185, 191, 192] Callinan J).

(v) Each House may impose sanctions on a member of the House for the purpose of inducing compliance by a member, but not for the purpose of punishing a member. (NSWLR at 668B-C; 667E-G, 672B Gleeson CJ; 682B-D Mahoney P; 693D-E Priestley JA. HCA at [55] Gaudron, Gummow and Hayne JJ; [63, 108, 109] McHugh J; [157, 158, 159] Kirby J; [193, 194] Callinan J). 3 In these proceedings the primary issue is whether or not the power of the Legislative Council to call for documents extends to documents for which claims of legal professional privilege or of public interest immunity, could be made at common law. This issue was expressly left open in the prior proceedings (NSWLR at 665E-F Gleeson CJ; 678B, 681D Mahoney P; 693B-C Priestley JA; HCA at [53, 56] Gaudron, Gummow and Hayne JJ; [151] Kirby J; [184] Callinan J). 4 In the absence, in New South Wales (unlike every other State), of any statute determining the powers, immunities and privileges of the Houses of Parliament, the common law rule reflected in par 2(iii) above applies. Is it reasonably necessary for the proper exercise of the functions of the Legislative Council of New South Wales, for its power to require production of documents to extend to documents which, at common law, would be protected from disclosure on the grounds of legal professional privilege or public interest immunity? Shortly put, is the power of the Legislative Council, recognised in Egan v Willis, a power to call for unprivileged documents only? 5 The common law rule identified in par 2(iii) above operates as part of the common law of the constitution of New South Wales. The joint judgment of the High Court in Lange v Australian Broadcasting Corporation (1997) 186 CLR 520 quoted with approval the following observations of Sir Owen Dixon, writing extra-judicially: '"We do not of course treat the common law as a transcendental body of legal doctrine, but we do treat it as antecedent in operation to the constitutional instruments which first divided Australia into separate Colonies and then united her in a Federal Commonwealth. We therefore regard Australian law as a unit. Its content comprises besides legislation the general common law which it is the duty of the courts to ascertain as best they may … The anterior operation of the common law in Australia is not just a dogma of our legal system, an abstraction of our Constitutional reasoning. It is a fact of legal history." ("Sources of Legal Authority" reprinted in Jesting Pilate (1965) p199). 6 To similar effect is Sir Owen Dixon's reference to: "… the existence of an anterior law providing the sources of juristic authority for our institutions when they came into being." ("The Common Law as an Ultimate Constitutional Foundation" reprinted in Jesting Pilate (1965) p203). 7 In the context of the New South Wales constitution, by reason of the limited scope of the written document called the "Constitution" - and, in the present context, by reason of the absence of any statutory specification of the powers, immunities and privileges of the Houses of the State Parliament - important aspects of the constitutional law of New South Wales remain as part of the common law. The comments in the joint judgment in Lange concerning the position in the United Kingdom, apply to New South Wales: "To say of the United Kingdom that it has an 'unwritten Constitution' is to identify an amalgam of common law and statute and to contrast it with a written Constitution which is rigid rather than fluid. The common law supplies elements of the British constitutional fabric." (562)

Role of the Courts 8 Whilst the present proceedings are in form a conflict between the Executive and the Legislative Council, in substance they are a conflict between the Legislative Assembly and the Legislative Council. No doubt, the lower House could pass a resolution forbidding any Minister delivering the documents to the upper House. Indeed it could require delivery to the lower House. It is not appropriate to speculate what, if any, legal remedy may be available to resolve any stalemate between the Houses. 9 From time to time the Courts have had to consider the relationship between the two Houses in a bicameral system. For example, in 1886 the Privy Council determined, at the joint request of the two Houses of the Queensland Parliament, that the Legislative Council had no power to amend money bills. (British Parliamentary Papers. Colonies Australia vol 30 (1883/1888) pp19-53; Baxter v Commissioner of Taxation (1907) 4 CLR 1087 at 1106-1107). 10 From the very beginning of responsible government in New South Wales, constitutional practice has been to avoid specification of its incidents. Few aspects of the system have been formulated as rules of law, capable of enforcement. Nevertheless, from time to time, the Courts have had to recognise the system of responsible government for the purpose of determining issues that are properly before them. In that regard, the incidents of responsible government may be said to be indirectly enforced. 11 Egan v Willis gave such recognition to responsible government when determining the issue before the Court. In this case, as in that, the Court has before it a common law claim for trespass to which the defendant has pleaded lawful authority, namely the resolution of the Legislative Council. 12 As Gleeson CJ put it in Egan v Willis: "The plaintiff claims an unlawful invasion of his legal rights in the form of trespass to the person and, since he has made that claim, the Court is obliged to adjudicate. Stockdale v Hansard (1839) 9 Ad&E l; 112 ER 1112." (653) 13 In the High Court, Gaudron, Gummow and Hayne JJ said: "The appellant's action is for trespass to the person. The respondents plead justification of their admitted acts; that justification being the suspension of the appellant from the service of the House. The 'question at the root of the case' is whether the House has the power to do so for non-compliance with resolutions that the appellant table certain State papers … Two propositions are clear. First, the present action having been brought, it must be decided. And secondly, the plea of justification is not conclusive, notwithstanding that it is an alleged justification founded in what was resolved by the Legislative Council." [25-26] 14 The present proceedings have the same legal structure. There is a distinction in that, since the institution of these proceedings, there has been an election and, as a result, the composition of the Legislative Council has changed, a fact of which this Court can take judicial notice. None of the parties have sought to have the matter relisted and the Court is obliged to determine the case.

Responsible Government 15 As was made clear in Egan v Willis, the role of the Legislative Council in reviewing executive conduct is derived from the principle of responsible government. The common law rule - that the Legislative Council has such powers as are reasonably necessary for the proper exercise of its functions - falls to be applied in that context. The determination of what is or is not reasonably necessary must proceed with this principle in mind. 16 Responsible government is not expressly referred to in the Constitution Act 1902 (NSW). Nevertheless, there can be no doubt that it is part of the Constitution of this State. As has long been the case with the British Constitution, the Constitution of New South Wales as a separate body politic is not found in one place. It is only partly contained in the Constitution Act 1902. (See The Commonwealth v Limerick Steamship Co Ltd (1924) 35 CLR 69 at 102; Egan v Willis HCA at [39]). Many of its most critical aspects operate only as conventions, rather than as formal legal rules. 17 One of the great strengths of this constitutional system is its capacity, manifested over the centuries, to develop and adapt to changing circumstances. This capacity exists because much of the constitutional law and practice of the respective polities is not set down in the form of legally enforceable rules. 18 In Egan v Willis supra at 660B-C, Gleeson CJ described responsible government as: "A concept based upon a combination of law, convention and political practice. The way in which that concept manifests itself is not immutable." 19 To similar effect are the observations in the joint judgment of Gaudron, Gummow and Hayne JJ at [141], where their Honours said: "It should not be assumed that the characteristics of a system of responsible government are fixed or that the principles of ministerial responsibility which developed in New South Wales after 1855 necessarily reflected closely those from time to time accepted at Westminster." 20 As the previous proceedings in Egan v Willis exemplified, the power to order the delivery of State papers plays a critical role in the system of responsible government. In Lange v The Australian Broadcasting Corporation supra at 559, in a seven member joint judgment, the High Court included "the power to coerce the provision of information" in a list of matters which, in the Commonwealth context, "provided a means of enforcing the responsibility of the executive to the organs of representative government". The same proposition applies in New South Wales. 21 The concept of responsible government pervades the whole of the constitution of New South Wales. It operates in New South Wales by a process which was once described as "the silent operation of constitutional principles" (Cooper v Stewart [1889] 14 AC 286 at 293). 22 Responsible government has been described as "the central feature of the Australian constitutional system" (R v Kirby; Ex parte Boilermakers Society of Australia (1955-56) 94 CLR 25 at 275 per Dixon CJ, McTiernan, Fullagar and Kitto JJ). To the same effect is the observation of Evatt J, quoted with approval in the joint judgment of the High Court in Lange supra at 558, that: "… prior to the establishment of the Commonwealth of Australia in 1901, responsible government had become one of the central characteristics of our polity." ( Victorian Stevedoring & General Contracting Co Pty Limited & Meakes v Dignen (1931) 46 CLR 73 at 114) 23 In New South Wales, no less than at the Commonwealth level, responsible government "is part of the fabric on which the written words of the Constitution are superimposed". (Commonwealth v Kreglinger & Fernau Ltd & Bardsley (1926) 37 CLR 393 at 413 per Isaacs J; Commonwealth & Central Wool Committee v Colonial Combing Spinning & Weaving Co Limited (1921-22) 31 CLR 421 at 426-447. See also Amalgamated Society of Engineers v Adelaide Steamship Co Limited (1920) 28 CLR 129 at 146-147 per Knox CJ, Isaacs, Rich and Stark JJ; Australian Capital Television v The Commonwealth (1992) 177 CLR 106 at 135 per Mason CJ). 24 Isaacs J described responsible government as the "keystone of our political system" in the following passage which is particularly pertinent to the present issue: "When a man becomes a Member of Parliament, he undertakes high public duties. Those duties are inseparable from the position: he cannot retain the honour and divest himself of the duty. One of the duties is that of watching on behalf of the general community the conduct of the executive, of criticising it, and, if necessary, of calling it to account in the constitutional way by censure from his place in Parliament - censure which, if sufficiently supported, means removal from Office. That is the whole essence of responsible government which is the keystone of our political system and is the main constitutional safeguard the community possesses." ( Horne v Barber (1920) 27 CLR 494 at 500). 25 In Williams v Attorney General of New South Wales (1913) 16 CLR 404 at 459, Isaacs J quoted from the speech of Lord Chancellor (then Mr) Haldane delivered in May 1900 in the House of Commons on the Commonwealth Constitution Bill as follows: "This Bill is permeated through and through with the spirit of the greatest institution which exists in the Empire, and which pertains to every Constitution established within the Empire - I mean the institution of responsible government, a government under which the executive is directly responsible to - nay is almost the creature of - the legislature." 26 Isaacs J went on to note that this "greatest institution" was received in New South Wales in 1855. 27 The introduction of responsible government was first authorised by the Australian Constitution Act 1850 (UK) (13 & 14 Vic 59), pursuant to which was enacted the Constitution Act 1855 (NSW) (17 Vic No 41), receiving the Royal assent as a schedule to the New South Wales Constitution Act 1855 (UK) (18 & 19 Vic c 54). 28 In the 1855 Constitution only the most oblique reference to responsible government appears in one section of that Act. Section 37 gave the Governor power to appoint "the officers liable to retire from office on political grounds". This is now found in s47 of the Constitution Act 1902. Quick and Garran described this provision as "a clause which to some extent amounted to a statutory recognition of the system of responsible government": The Annotated Constitution of the Australian Commonwealth (1901) p704. (See also Toy v Musgrove (1888) 14 VLR 349 at 392 per Higinbotham CJ). 29 The absence of any express reference to responsible government in the 1855 Constitution has been explained by one commentator in the following terms: "It was clearly the intention of the Constitution that the operation of responsible government should be established on accepted precedent, rather than on statutory definition." (ACV Melbourne Early Constitutional Development in Australia (2nd ed, 1963) p429). 30 In their joint judgment in Egan v Willis, Gaudron, Gummow and Hayne JJ emphasised the centrality of such "accepted precedent": "… the long practice since 1856 with respect to the production to the Council of State papers, together with the provision in Standing Order 29 for the putting to Ministers of questions relating to public affairs and the convention and parliamentary practice with respect to the representation in the Legislative Council by a Minister in respect of portfolios held by members of the Legislative Assembly, are significant. What is 'reasonably necessary' at any time for the 'proper exercise' of the 'functions' of the Legislative Council is to be understood by reference to what, at the time in question, have come to be conventional practices established and mentioned by the Legislative Council." [50] 31 As Sir Victor Windeyer put it at the time of the centenary of responsible government: "That the players should be making the rules as the game proceeds may seem strange. Yet this has been the course of much British constitutional history. It may well be inevitable if the organs of government are not to become atrophied; for definition can produce a rigor iuris, only one stage removed from rigor mortis". (Windeyer "Responsible Government - Highlights, Sidelights and Reflections" (1957) 42 JRAHS 257 at 272). 32 The incidents of responsible government in Great Britain were established by a process of historical accretion, primarily over the course of the eighteenth and early nineteenth centuries. Their origins are to be found, as is much of English constitutional practice, in historical accident. To give one example, George I and George II spoke no, or little, English. For this reason, and also because of their preoccupation with the affairs of the Electorate of Hanover, they did not, unlike their predecessors, attend Cabinet meetings. By the time George III took the throne, the convention was firmly established, by almost half a century of practice, that the monarch did not attend Cabinet. (See Maitland The Constitutional History of England (1908) p395). 33 Such processes of historical development have continued, both in the United Kingdom and in Australia. In the course of time, "accepted precedent" diverged in Australia from the original. Such divergence has occurred with respect to the powers, privileges and immunities of the upper Houses in Australian Parliaments, not least because, unlike the United Kingdom, they are elected. 34 In the constitution of New South Wales, each House of the Parliament is entwined in a symbiotic relationship with the Executive arm of government. Ministerial responsibility is one of the incidents of responsible government. It is by means of this relationship that the Executive is responsible, through Parliament, to the electorate. 35 There are numerous references in the reasoning of the High Court and in the Privy Council, to the responsibility of Ministers "to the Parliament". (See eg Theodore v Duncan (1919) 26 CLR 276 at 282; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 221-222; New South Wales v The Commonwealth (1975) 135 CLR 337 at 364-365; R v Kirby; Ex parte Boilermakers Society of Australia supra at 275; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 184-186. See also Toy v Musgrove supra at 374, 386, 396-397). However, it is by no means apparent that such references were intending to use the word "Parliament" in the sense of both Houses, as distinct from referring to responsibility to the House which alone determines the formation of a Ministry, relevantly, the Legislative Assembly of New South Wales. 36 There is a body of opinion that the formal "responsibility" is only to the Lower House. (See eg Byers "The Australian Constitution and Responsible Government" (1985) 1 Aust Bar Rev 233 at 233; Winterton Parliament the Executive and the Governor General (1983) esp at pp7, 79-81; Final Report of the Constitutional Commission (1988) pars 2.178, 2.2203. Lindell "Parliamentary Inquiries and Government Witnesses" (1995) 20 Melb ULR 383 at 399-400). 37 In my opinion, for New South Wales, this approach cannot stand with the reasoning in Lange and Egan v Willis. In Lange the court referred to "the means for enforcing the responsibility of the Executive to the organs of representative government" (559 emphasis added). Egan v Willis establishes that the functions of the Legislative Council of New South Wales are derived, in part, from the proposition that Ministers are responsible to that House. See HCA at [42, 45, 46, 50, 105, 106, 152-155]. 38 Of the passages from Egan v Willis referred to, it is only necessary to set out the following: "One aspect of responsible government is that Ministers may be members of either House of a bicameral legislative and liable to the scrutiny of that chamber in respect of the conduct of the executive branch of government. Another aspect of responsible government, perhaps the best known, is that the Ministers must command the support of the lower House of a bicameral legislature upon confidence notions. The circumstance that Ministers are not members of a chamber in which the fate of administration is determined in this way does not have the consequence that the first aspect of responsible government mentioned above does not apply to them." [45]. 39 Ministerial responsibility has always been understood to have two dimensions: individual responsibility and collective responsibility. The distinction has been recognised judicially. (See New South Wales v Bardolph (1934) 52 CLR 455 at 486-487, 521; Sankey v Whitlam (1978) 142 CLR 1 at 98; FAI Insurances Limited v Winneke (1981-82) 151 CLR 342 at 364, 365-366; Whitlam v Australian Consolidated Press Ltd (1983) 73 FLR 414 at 421-422; Minister for Arts Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274; Commonwealth v Northern Land Council (1992) 30 FCR 1 at 16-21). 40 The constitutional law literature recognises the dual dimension. (See eg Finn Law and Government in Colonial Australia (1987) pp11-12, 45-46, 87, 163-164; Lindell "Responsible Government" in Finn (ed) Essays on Law and Government vol 1 (1995) esp at pp78-79, 93, 96; Elly "Collective Ministerial Responsibility and Collective Solidarity" (1980) Public Law 367; Joseph Constitutional and Administrative Law in New Zealand (1993) pp249-251). In the present case only collective responsibility has been raised. 41 In 1867, WE Hearne, then Professor of History and Political Economy, subsequently Dean of the Faculty of Law, at the University of Melbourne, published The Government of England. As Professor La Nauze has pointed out, Hearne was the first scholar to achieve an international reputation on the basis of a book written and published in Australia. (See La Nauze "Hearne and 'The Government of England'" (1967) 26 Public Administration 303 at 304). Indeed Dicey, in his classic work Introduction to the Study of the Law of the Constitution, acknowledged his indebtedness to only six persons by name: they were Blackstone, Hallam, Bagehot, two other contemporary constitutional lawyers, and Hearne. (See also Dixon "The Law and the Constitution" reprinted in Jesting Pilate (1965) esp at p41). 42 In his 1867 work, Hearne described the Cabinet as "the cornerstone of our modern system of government" (p180). He identified the collective responsibility of the Cabinet in the following way: "It is a … consequence of (the) corporate character of the Cabinet that the responsibility which attaches to the acts of any one member extends to the whole body. As the individual member by his silence in public ratifies and adopts the measures which although against his wish have been adopted by the whole Cabinet, so the collective Cabinet is responsible for the official acts of its separate members. Each Minister is as it were the agent of his partners for the execution of his particular duties. In the political partnership as well as in the commercial partnership, and in each case on the same principles, the act of the partner binds the firm." (p201) 43 The Cabinet has remained the "cornerstone" of the system of government in New South Wales. Collective responsibility to Parliament, even if sometimes honoured in the breach, has remained a distinctive characteristic of that system. It is usually referred to as a constitutional convention. 44 The word "convention" is now customarily applied to encompass matters for which Dicey originally employed six different descriptions - "convention", "understanding", "maxims", "habits", "practices" and "precepts". (Dicey Law of the Constitution (9th ed, 1952) pp24, 417). A "convention" in this sense is no less such because it is not rigorously observed. Nor indeed, does a law lose its character as such because it is sometimes breached. Such conventions, as Maitland said, are found "of every degree of stringency and of definiteness". (Maitland The Constitutional History of England (1908) p398; see also Munro Studies in Constitutional Law (1987) pp52-60). 45 The principle of responsible government - in both dimensions of individual ministerial responsibility and collective responsibility - is part of the Constitution of New South Wales. That proposition is not diminished in its force by the fact that the principle has not always been observed. 46 Insofar as the function of the Legislative Council to review Executive conduct is derived from the system of responsible government, collective responsibility must be accepted as part of that system. This is of significance in determining whether a power, said to be "reasonably necessary" for the performance of this very function, extends to Cabinet documents. All the documents said to be privileged on the grounds of public interest immunity in the present proceedings, were "Cabinet documents". 47 The issue is not one of the enforcement of collective responsibility. The issue is whether, and if so how, that principle should be recognised in the application of a rule of the common law of the constitution upon which it impinges. (On "recognition" as distinct from "enforcement" of conventions, see Munro "Laws and Conventions Distinguished" (1975) 91 LQR 218 at 229-231; Cooray Conventions, the Australian Constitution and the Future (1979) at 82-87; Munro Studies in Constitutional Law (1987) esp pp45-48; Lindell "Responsible Government" supra at pp80-89; Joseph supra at p263).

Public Interest Immunity 48 The ability of a House, or a Committee, of Parliament to enforce access to documents, the disclosure of which is asserted by, or on behalf of, a Minister to be contrary to the public interest, has never been resolved as a matter of parliamentary practice. (See Evans Odgers' Australian Senate Practice (8th ed, 1997) esp pp451-468; Barlin (ed) House of Representatives Practice (3rd ed, 1997) pp641-651; Parliament of New South Wales, Standing Committee on Parliamentary Privilege and Ethics Report on Inquiry into Sanctions where Ministers Fail to Table Documents (1986); Campbell "Parliament and Executive" in Zines (ed) Commentaries on the Australian Constitution (1977); Campbell "Appearance of Officials as Witnesses before Parliamentary Committees" in Nethercote (ed) Parliament and Bureaucracy (1982) at p207; Campbell "Parliamentary Inquiries and Executive Privilege" (1986) Legislative Studies 10 at 14, 15; Lindell "Parliamentary Inquiry and Government Witnesses" supra at 395). 49 It is common ground that there has been no previous occasion on which a Minister has been suspended from a House of an Australian Parliament for failing to produce documents over which a claim of privilege has been made. Hitherto, in Australian parliamentary practice, a House has not sought to enforce demands to produce documents, when public interest immunity has been claimed. (See examples in Odgers Australian Senate Practice (8th ed, 1997) pp427-431, 451-468). 50 This Court must decide what recognition should be given to a claim for public interest immunity in the context of determining the scope of a common law power to call for documents that satisfy the test of 'reasonably necessary for the performance' by the Legislative Council of its constitutional functions. 51 The determination of a claim of public interest immunity requires the balancing by the Court of conflicting public interests. The immunity is not absolute. (See eg Sankey v Whitlam supra at 43, 63-64, 98-99; Commonwealth v Northern Land Council (1992-93) 176 CLR 604, 616-618). The plaintiff's submissions, put at their highest, in substance require the Court to accede to a 'class claim' for Cabinet documents as a restriction on the power of the Legislative Council of a character which the Courts have rejected in the case of litigation before courts. Alternatively, it is submitted, this Court should conduct a balancing exercise to similar effect. 52 In the determination of a claim of public interest immunity, a trial judge is called upon to weigh essentially incommensurable factors: the significance of the information to the issues in the trial, against the public harm from disclosure. Where this occurs in the course of the administration of justice, judicial officers have relevant experience for the conduct of the balancing exercise. Specifically, they not only understand, but have a duty to consider and assess, the significance of the information to the particular legal proceedings. Where the public interest to be balanced involves the legislative or accountability functions of a House of Parliament, the courts should be very reluctant to undertake any such balancing. This does not involve a constitutional function appropriate to be undertaken by judicial officers. This is not only because judges do not have relevant experience, a proposition which may be equally true of other public interests which they are called upon to weigh. It is because the Court should respect the role of a House of Parliament in determining for itself what it requires and the significance or weight to be given to particular information. As the Supreme Court of the United States has said, there are issues which a court should not determine because of "the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government": Baker v Carr 369 US 186 (1962) at 217. 53 The common law rule of reasonable necessity for the performance of the functions of a House of Parliament should not, in my opinion, be found to operate in such a way as would require a judge to make decisions of this character. The restriction of the power to call for State papers to unprivileged documents would require the courts to do so, because it involves a balancing exercise in which the importance of information for a Parliamentary function falls to be assessed. 54 The high constitutional functions of the Legislative Council encompass both legislating, and the enforcement of the accountability of the Executive. Performance of these functions may require access to information the disclosure of which may harm the public interest. Access to such information may, accordingly, be 'reasonably necessary for the performance of the functions of the Legislative Council'. 55 However, in my opinion, it is not reasonably necessary for the proper exercise of the functions of the Legislative Council to call for documents the production of which would conflict with the doctrine of ministerial responsibility, either in its individual or collective dimension. The power is itself, in significant degree, derived from that doctrine. The existence of an inconsistency or conflict constitutes a qualification on the power itself. 56 When the issue of access to Cabinet documents has arisen in the context of claims for public interest immunity in the course of litigation, the Courts have recognised the significance of Cabinet confidentiality as an application of the principal of collective responsibility. However, a distinction has been made between documents which disclose the actual deliberations within Cabinet and those which are described as "Cabinet documents", but which are in the nature of reports or submissions prepared for the assistance of Cabinet. With respect to the former the High Court has said: "It has never been doubted that it is in the public interest that deliberations of Cabinet should remain confidential in order that the Members of Cabinet may exchange differing views and at the same time maintain the principle of collective responsibility for any decision which may be made … Despite the pressures which modern society places upon the principle of collective responsibility, it remains an important element in our system of government." ( The Commonwealth v Northern Land Council (1992-93) 176 CLR 604 at 615. 57 The documents in issue in that case were in fact documents which recorded the actual deliberations of Cabinet. The revelation of such material is inconsistent with the doctrine of collective responsibility. Documents prepared outside Cabinet for submission to Cabinet may, or may not, depending on their content, manifest a similar inconsistency. (See also Attorney General v Jonathan Cape Ltd [1976] 1 QB 752 at 770; Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 432-433). 58 Similar issues have arisen in Ireland in Attorney General v Hamilton (1993) 2 IR 250. Article 28 s4 of the Constitution of Ireland 1937 establishes two propositions: first, that the government is responsible only to the Lower House of Parliament; and secondly, the principle of collective responsibility. Unlike our own system, where these matters are left to convention or political practice, the provisions are express and give rise directly to a justiciable issue. 59 In Hamilton, a Tribunal of Inquiry was appointed by resolution of both Houses of Parliament, the Oireachtas. Part of the inquiry involved what had happened at a Government meeting on a particular date. The Supreme Court specifically enforced the express doctrine of collective responsibility found in Article 28 to prevent the Tribunal inquiring into the deliberations at the specific meeting. 60 Finlay CJ said: "Article 28, 4 sub-ss 1 and 2 of the Constitution impose upon the members of the Government separate though clearly related obligations, and these are: (1) they must meet as a collective authority

(3) they must be collectively responsible for all the departments of state and not merely the one which each of them administers

(4) they have as a government a responsibility to Dail Aireann." (266) 61 The Dail Aireann is the Lower House. His Honour went on: "The obligation to act collectively must, of necessity, involve the making of a single decision on any issue, whether it is arrived at unanimously or by majority. The obligation to accept collective responsibility for decisions and, presumably, for acts of government as well, involves, as a necessity the non-disclosure of different or dissenting views held by members of the government prior to the making of decisions." (266) 62 The express reference in the Constitution enabled the direct enforcement of the principle of collective responsibility in this way. In our own case the issue is one of recognition rather than enforcement. 63 The resolutions of 24 November and 26 November created two distinct regimes:

(i) For all claims of privilege other than Cabinet documents, documents would be made available to members of the Legislative Council.

(ii) Documents identified as a Cabinet document would remain in the custody of the Clerk. 64 With regard to both categories, a member may "dispute … the validity of a claim of privilege". In any such case, the document could be released to an independent arbiter "to evaluate and report on the validity of the claim". 65 The resolution of 24 November expressly contemplated that after a report from the independent arbiter, and irrespective of its contents, the House could resolve that "the disputed document be made … public without restricted access". This is not specifically mentioned in the resolution of 26 November. Once a document is in the control of the Clerk, the House could deal with it as it resolved. Nothing in these two resolutions suggested any intention to confine the exercise of this power. 66 It is of some significance that no Cabinet document would become available to any member of the Legislative Council. Nevertheless, the House asserted a right to have the "validity of the claim" of privilege, based on characterisation as a Cabinet document, assessed by a person whom it appoints. 67 The evidence adduced by the plaintiff was directed to the factual issues raised by public interest immunity. Nevertheless, the evidence did establish inconsistency with the doctrine of collective ministerial responsibility. 68 The Director General of the Cabinet Office of New South Wales gave the following evidence: "The operations of the Cabinet are governed by the principle of collective responsibility for any decisions which may be made. Ministers are expected to accept and express support for decisions made by Cabinet. This is especially so in the case of the Minister responsible for administering the decision. Production of and access to Cabinet Minute 237-98 would reveal the views of one of the Ministers who was responsible for administering the decisions to be made by Cabinet on this matter." 69 This evidence indicates that the documents which the Legislative Council sought included documents which revealed the internal deliberations of the Cabinet. In my opinion, the Legislative Council does not have power to require the production of such documents. 70 In order to avoid inconsistency between the power to call for documents and one of the bases on which it has been determined that the power is reasonably necessary (namely executive accountability derived from responsible government), the power should, at least, be restricted to documents which do not, directly or indirectly, reveal the deliberations of Cabinet. 71 It may be that there are other Cabinet documents, access to which would contradict the collective responsibility of Ministers. No such issue was addressed in these terms, either in the evidence or in the submissions before the Court. The test is whether disclosure is inconsistent with the principles of responsible government - not a balancing exercise between conflicting public interests. It is neither necessary nor desirable to consider what other circumstances may result in a relevant inconsistency or conflict. Nor has any conflict with any aspect of individual ministerial responsibility been raised in these proceedings.

Legal Professional Privilege 72 Legal professional privilege is more than a mere rule of evidence. The privilege is a substantive general principle of the common law which plays an important role in the effective and efficient administration of justice: Baker v Campbell (1983) 153 CLR 52 at 117 per Deane J: Goldberg v Ng (1995) 185 CLR 83 at 93-94 per Deane, Dawson & Gaudron JJ; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 505 per Brennan CJ, at 540 per Gaudron J. See also Stone & Wells Evidence Its History and Policies (1991) at pp572-573. 73 The rationale for professional privilege is that it promotes the public interest by facilitating the representation of clients by legal advisers and by fostering trust and candour between client and lawyer: Grant v Downes (1976) 135 CLR 746 at 685; Baker v Campbell supra at 118, 119-120 per Deane J, at 130 per Dawson J; Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 487, per Mason and Brennan JJ. 74 As McHugh J has emphasised, the privilege is a "practical guarantee of fundamental constitutional or human rights" (Carter v Northmore Hale Davy & Leake (1994-95) 183 CLR 121 at 161. See also Commissioner of Australian Federal Police v Propend Finance Pty Limited supra at 552; 582-585 per Kirby J). 75 One feature which distinguishes a claim of legal professional privilege from a claim of public interest immunity, is that in the case of the former there is no process of balancing conflicting public interests. The law has already undertaken the process of balancing in determining the rule. (See eg Waterford v The Commonwealth (1986-87) 163 CLR 54 at 64-65; Carter supra at 128, 133, 135, Propend Finance supra at 583). 76 The plaintiff submits that the doctrine of legal professional privilege applies to any attempt to obtain disclosure of documents by coercive means. Dawson J said in Baker v Campbell supra at 132: "[T]he doctrine of legal professional privilege is, in the absence of some legislative provision restricting its application, applicable to all forms of compulsory disclosure of evidence. Section 10 of the Crimes Act does not expressly or by necessary implication restrict the application of the doctrine and the section should, therefore, be construed as being not intended to affect it." 77 In Propend Finance supra at 567, Gummow J said that this statement "encapsulated … the propositions for which Baker v Campbell is authority". 78 The plaintiff asserts that the power of the Legislative Council to impose sanctions for failure to produce documents is a form of "compulsory disclosure". It submits that, just as the law of statutory interpretation requires the strict construction of a power to compel disclosure, the applicable common law principle - what is reasonably necessary for the proper performance by the Legislative Council of its functions - requires a similar approach. 79 A claim of legal professional privilege (or a claim of public interest immunity) is not, of itself, a right that is protected by the Courts. Neither is a freestanding right. Each is protected incidentally in the course of the vindication of another right. In the present case, the issue arises in the context of the vindication of the right to personal integrity protected by the tort of trespass. 80 Mr B Walker SC, who appeared for the Respondent, submitted that the relationship between Ministers and the Legislative Council is not analogous to the position of persons whose documents are sought in the course of the administration of justice or executive inquiries. The high constitutional relationship of political accountability is quite different to anything considered in the case law on either form of immunity. None of the cases involved an accountability relationship between the person requesting the documents and the person with possession of the documents. I agree with this submission. 81 The applicability of the doctrine of legal professional privilege depends upon the relationship between the persons in the context in which the issue of access arises. Persons may have rights of access to documents held by others, including legal advice, in a number of different ways. First, the person not in possession may, either in law or in equity, be found to be the true owner of the relevant document. Secondly, parties in a particular relationship may have established contractual rights of access. Finally, the law with respect to particular relationships has recognised rights of access to documents of a character which makes any doctrine of legal professional privilege (or of public interest immunity) simply irrelevant. 82 The classic case of a particular relationship of this last kind, is, of course, that of a trustee and a beneficiary with respect to documents that are the property of the trust. A right of access does exist. It does not, however, extend to documents which are in truth the property of the trustee involving the internal management of the trust, such as agenda and minutes of meetings of trustees, or other documents disclosing the deliberations of trustees as to how to exercise their powers (see eg In Re Londonderry Settlement [1965] Ch 918 esp at 928, 933, 934 and 935-936; Re Fairbairn [1967] VR 633 at 635-639; Hartigan Nominees Pty Limited v Ridge (1992) 29 NSWLR 405 esp at 431-436, 442-445). 83 I mention this line of authority not for the purpose of suggesting that there is anything directly analogous for present purposes, but simply to emphasis that the scope and nature of one person's right of access to documents held by another depends on the particular relationship within which the issue of access arises. (See also Breen v Williams (1994) 35 NSWLR 522 at 538-542, 546, 549,559-563, 566-568, 569-571; (1995-96) 186 CLR 71 esp at 79-82, 88-95, 101-106, 123-127, 138). 84 Where, as here, a special relationship known to the law exists, the determination of the right of one party to the relationship, to documents in the possession of the other party to the relationship, must be determined in accordance with the incidents of the relationship. It may be that principles applicable in other areas of the law will inform the process of determining the right of access to information or documents, but those principles are not, in terms, directly applicable. In the present situation, the question falls to be determined in accordance with public law principles, rather than the private law principles referred to in the doctrines invoked by the plaintiff. 85 I have not found it easy to reconcile the strength of the High Court's contemporary reasoning on the role of legal professional privilege (as exemplified most clearly in the result in Carter, where access to information required for purposes of a criminal defence was denied) and the emphasis on the accountability function of the Legislative Council in Egan v Willis. I have concluded that the latter should prevail. 86 In performing its accountability function, the Legislative Council may require access to legal advice on the basis of which the Executive acted, or purported to act. In many situations, access to such advice will be relevant in order to make an informed assessment of the justification for the Executive decision. In my opinion, access to legal advice is reasonably necessary for the exercise by the Legislative Council of its functions. 87 What, if any, access should occur is a matter "of the occasion and of the manner" of the exercise of a power, not of its existence. (R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 187 at 162). If the public interest is thereby harmed, the sanctions are political, not legal. 88 My analysis, in the context of public interest immunity, of the scope of the power being limited in the case of inconsistency with the principles of collective or individual ministerial responsibility, may extend to documents covered by legal professional privilege at common law. That is not, however, because they are documents of that character. It is because their disclosure would have a consequence which gives rise to a conflict with the constitutional principle. The submissions of the plaintiff were not directed to this issue. Nor was the evidence.

Conclusion 89 The resolution of the Legislative Council is, in accordance with its terms, spent. The plaintiff was suspended "for the remainder of the session or until he fully complies with this Order, whichever occurs first". Since the hearing of these proceedings, the Parliament of New South Wales has been prorogued and a new Parliament elected at a State election. The plaintiff's suspension is no longer operative. In these circumstances, it is not appropriate to comment on the validity of the resolution suspending the plaintiff from the Council. 90 The relationship between the courts and Parliament must be one of mutual respect. This Court should not decide issues of this character unless it is compelled to do so in order to vindicate a legal right. 91 Furthermore, as Lord Simon of Glaisdale has said: "It is well known that in the past there have been dangerous strains between the law courts and Parliament - dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other. …" ( Pickin v British Railways Board [1974] AC 765 at 799; at 788 per Lord Reid). 92 As Powell J put it in the Supreme Court of the United States: "Differences between the President and the Congress are commonplace in our system. The differences should, and almost invariably do, turn on political rather than legal considerations. The Judicial Branch should not decide issues affecting the allocation of power between the President and the Congress until the political branches reach a constitutional impasse". ( Goldwater v Carter 444 US 996 (1979) at 997). 93 Although our system of responsible government does not give rise to conflicts between the Executive and Parliament with the frequency that occurs in the United States, nevertheless such conflict does arise in a bicameral system. Australian courts should practice a prudential restraint in this regard. 94 In view of the election of a new Parliament, I do not believe that it is appropriate to make any finding on the validity of this resolution of a House of Parliament, which resolution is of no present effect. 95 For these reasons it is not appropriate to make any orders. The proceedings should be dismissed with no order as to costs.

PRIESTLEY JA: Introductory. 96 When the plaintiff brought these proceedings he held a number of public offices in the State of New South Wales. He was a Member of the Legislative Council, the Leader of the Government in the Legislative Council, Vice President of the Executive Council and a Minister of the Crown holding the offices of Treasurer, Minister for State Development and Minister Assisting the Premier. He brought the proceedings against three persons holding different public offices in the State. The President of the Legislative Council (the Council) was the first defendant, the Clerk of the Parliaments the second defendant and the Usher of the Black Rod the third defendant. 97 The proceedings are a sequel to earlier proceedings brought by the plaintiff in which he claimed that the Council did not have a power which it asserted against him. The power asserted by the Council was to require him as a Member, a Minister and the representative of another Minister in the Legislative Assembly to provide to the Council State papers which related to matters of government business which the Council wished to debate. Although the plaintiff had such papers in his custody and control, he did not produce them to the Council because, he claimed, the Council did not have the power to require him to do so. He was held to be wrong. In Egan v Willis [1998] HCA 71 (decided 19 November 1998) the High Court decided the Council did have the power it asserted. In so holding, the High Court made it clear that the case then before them did not call for a decision of what the position would be if a person subject to the Council's power claimed to be entitled to refuse to produce required documents because of some claim to privilege. What that position is is the principal issue in the present proceedings.

Facts and claims from the pleadings. 98 Few, if any, of the primary facts are in dispute. The following abstract of them is based on the plaintiff's statement of claim in its third (and presently final) amended form as pleaded to by the defendants. Because of developments after the case began not all of what follows remains directly relevant. However because the summary explains how the main issue now before the court arose, I have left it in. 99 Orders in Resolution of 13 October 1998 and aftermath. On 13 October 1998 the Council passed a resolution including the following: "3. That this House calls upon the Leader of the Government to table all documents relating to the ongoing contamination of Sydney's water supply system including all relevant letters, contracts, memoranda and files whether recorded in written or electronic form, as follows: (i) those documents not subject to claims of legal professional privilege or public interest immunity to be tabled with the Clerk of the House and made public without restricted access by 5:00p.m. Wednesday 14 October 1998. (ii) those documents subject to claims of legal professional privilege or public interest immunity to be clearly identified as to the claim and the reasons for the claim, tabled with the Clerk of the House by 5:00p.m. Wednesday 14 October 1998, and except as provided in paragraphs 4 and 5: (a) made available only to Members of the Legislative Council; and (b) not published or copied without an Order of the House. 4. That in the event of a dispute by any Member of the House communicated in writing to the Clerk as to the validity of a claim of legal professional privilege or public interest immunity in relation to a particular document: (i) the Clerk is authorised to release the disputed document to an independent legal arbiter who is either a Queen's Counsel, a Senior Counsel or a retired Supreme Court judge, appointed by the President, for evaluation and report within 5 days as to the validity of the claim; and (ii) any report from the independent arbiter is to be tabled with the Clerk of the House and: (a) made available only to Members of the Legislative Council; and (b) not published or copied without an Order of the House. 5. Any document for which privilege is claimed and which is identified as a Cabinet document shall not be made available to a Member of the Legislative Council. The legal arbiter may be requested to evaluate any such claim.

6. That the President advise the House of any report from an independent arbiter, at which time a motion may be made forthwith that the disputed document be made (or not made) public without restricted access. "

(In these proceedings the foregoing were called the Orders of 13 October 1998.) 100 The plaintiff refused to table any documents with the second defendant pursuant to Order 3(2) of the Orders of 13 October 1998. At relevant times the plaintiff had documents in his possession falling within Order 3(2) of the Orders of 13 October 1998 these being (a) a letter of advice dated 26 August 1998 from the Crown Solicitor to the Director-General of the Cabinet Office; and (b) a submission to Cabinet from the Deputy Premier dated 21 September 1998.

The plaintiff has at all times asserted that document (a) is the subject of legal professional privilege in the Crown and that document (b) is the subject of public interest immunity. 101 Orders in Resolution of 20 October 1998 and aftermath. On 20 October 1998 the Council passed a resolution, part of which read as follows: " 1 . That this House regards it as an affront to the full and effectual exercise of its important functions: ............. (b) that the Treasurer has failed to comply with the Order of this House dated 13 October 1998 to table in the House or deliver to the Clerk certain papers as required by that Order by 5.00p.m. Wednesday 14 October 1998. 2. That this House accordingly adjudges the Treasurer guilty of a contempt of this House for his failure to fully comply with the Order of this House dated 13 October 1998 requiring him to table in the House or deliver to the Clerk by 5:00p.m., Wednesday 14 October 1998, all documents relating to the ongoing contamination of Sydney's water supply system including all relevant letters, contracts, memoranda and files whether recorded in written or electronic form. 3. That this House, regarding it as necessary to obtain information on any matter affecting the public interest and in order to protect the rightful powers and privileges of the House, and to remove any obstruction to the proper performance of the important functions it is intended to execute hereby suspends the Treasurer from the service of the House for 5 sitting days or until he fully complies with the Order of 13 October 1998, whichever occurs first. "

(In the proceedings the foregoing were called the Orders of 20 October 1998.) 102 In accordance with the Orders of 20 October 1998 the plaintiff was suspended from the service of the Council on 20 October 1998 for five sitting days. 103 Orders in Resolution of 24 November 1998 and aftermath. On 24 November 1998 the Council passed a resolution, the presently relevant parts of which were as follows: " 2. That this House calls upon the Leader of the Government to immediately table in the House or deliver to the Clerk of the House, before 11.00 am on Thursday 26 November 1998, or before any prorogation of the House, whichever sooner occurs, the following documents: (a) The documents referred to in the Resolution of the House of 18 October 1995 relating to the closure of veterinary laboratories, that is: (i) documents from all Government Departments and Ministerial Offices pertaining to the closure of the veterinary laboratory at Wagga Wagga; (ii) documents from all Government Departments and Ministerial Offices pertaining to the closure of the veterinary laboratory at Armidale; (iii) documents from all Government Departments and Ministerial Offices pertaining to the closure of the Biological and Chemical Research Institute at Rydalmere; and (iv) documents relating to, and including, the Coopers and Lybrand report into the feasibility of the closure of the Biological and Chemical Research Institute at Rydalmere; (b) the documents referred to in the Resolution of the House of 25 October 1995 relating to the development of the Sydney Showground site, that is: (i) all documents, correspondence, notes, advices and submissions including briefing papers in relation to the in-principle agreement with Twentieth Century Fox; (ii) all documents relating to the Sydney Showground site at Moore Park and the transfer of planning powers from South Sydney Council to the New South Wales State Government; and (iii) all documents relating to the Twentieth Century Fox involvement on the Sydney Showground site beyond the use of the site for a film studio; (c) the documents referred to in the Resolution of the House of 26 October 1995 relating to the Department of Education, that is: (i) any available discussion papers, research or reports which outlined inadequacies or flaws of the existing structure which were instrumental in reaching the decision that a restructuring of the Department of Education was necessary; (ii) any option paper which details what other options were considered and why this restructuring became the preferred one; (iii) any economic analysis of each option considered; (iv) any analysis on the impact of the restructure on the administrative workload in schools; (v) any analysis of the economic impact of this restructuring on the Department of Education; (vi) any analysis of the economic impact of the restructuring on communities where regional offices were formerly located; (vii) any analysis of the social impact of the restructuring of regional centres; (viii) any records of consultation with the then regional offices and the relevant Assistant Directors-General about the restructuring; (ix) minutes of all meetings and evidence from interviews with affected community and interest groups including but not exclusively, local government, the New South Wales Teachers Federation, the New South Wales Parents and Citizens Association and the Public Service Association; and (x) a list of dates when these meetings or interviews occurred; (d) the documents referred to in the Resolution of the House of 23 April 1996, that is, all papers relating to the Government's consideration of the Report of the Commission of Inquiry into the Lake Cowal gold mine and associated facilities at Cowal West, West Wyalong, proposed by North Gold (WA) Limited, and the determination of the consent to the project. 3. Where it is considered that a document required to be tabled under this Order is privileged and should not be made public or tables: (a) a return is to be prepared and tabled showing the date of creation of the document, a description of the document, the author of the document and reasons for the claim of privilege; (b) the documents are to be delivered to the Clerk of the House by 11.00 am Thursday 26 November 1998 and: (i) made available only to Members of the Legislative Council; and (ii) not published or copied without an Order of the House. 4. That in the event of a dispute by any Member of the House communicated in writing to the Clerk as to the validity of a claim of legal professional privilege or public interest immunity in relation to a particular document: (a) the Clerk is authorised to release the disputed document to an independent legal arbiter who is either a Queen's Counsel, a Senior Counsel or a retired Supreme Court judge, appointed by the President, for evaluation and report within 5 days as to the validity of the claim; and (b) any report from the independent arbiter is to be tabled with the Clerk of the House and: (i) made available only to Members of the Legislative Council; and (ii) not published or copied without an Order of the House. 5. Any document for which privilege is claimed and which is identified as a Cabinet document shall not be made available to a Member of the Legislative Council. The legal arbiter may be requested to evaluate any such claim. 6. That the President advise the House of any report from an independent arbiter, at which time a motion may be made forthwith that the disputed document be made (or not made) public without restricted access. 7. That this House calls upon the Leader of the Government to immediately table in the House or deliver to the Clerk of the House, before 11.00 am on Thursday 26 November 11998, the documents referred to in the Resolutions of the House of 24 September 1998 and 13 October 1998, that is, all papers relating to the ongoing contamination of Sydney's water supply system including all relevant letters, contracts, memoranda, and files whether recorded in written or electronic form, in accordance with paragraphs 3 to 6 above."

(In the proceedings the foregoing were called the Orders of 24 November 1998.) 104 The plaintiff claimed that he delivered to the second defendant before 10 am on 25 November 1998 all documents in his possession falling within Order 2 of the Orders of 24 November 1998 other than documents in respect of which he claimed legal professional privilege or public interest immunity from production. Those last documents he refused to table. 105 Orders in Resolution of 26 November 1998 and aftermath. On 26 November 1998 the Council passed a resolution which began by noting the plaintiff's refusal to produce certain documents and continued: "2. That this House accordingly adjudges the Treasurer guilty of a contempt of this House for his failure to fully comply with the Order of this House dated 24 November 1998 requiring him to table in the House or deliver to the Clerk by 11.00 am Thursday 26 November 1998 all documents required by that Order.

3. That this House notes: (a) that certain documents were tabled this day relating to the closure of veterinary laboratories, the development of the Sydney Showground site, the restructure of the Department of Education, and the proposed Lake Cowal gold mine; and (b) that a report from Sir Laurence Street on the Government's claim of privilege for certain documents and the list of documents in which privilege is claimed was also tabled, in which it is asserted that certain other documents are not required to be produced. 4.(1) That this House called upon the Leader of the Government to deliver to the Clerk of the House before 11.00 am on Friday 27 November 1998, or before any prorogation of the House, whichever sooner occurs: (a) all documents for which privilege is claimed and which are listed in the attachment to the report from Sir Laurence Street dated 25 November 1998; and (b) all documents for which privilege is claimed relating to Sydney's water supply. (2) For documents referred to in paragraph 4(1)(b), a return is to be prepared and delivered to the Clerk of the House by 11.00 am on Friday 27 November 1998, showing the date of creation of the document, a description of the document, the author of the document and the reasons for the claim of privilege. The return is to be tabled in the House by the Clerk. 5. That in the event that the Leader of the Government fails to fully comply with this Order of the House, he is suspended from the service of the House for the remainder of the session or until he fully complies with this Order, whichever occurs first. 6.(1) Except as provided in paragraph 6(2), documents delivered to the Clerk of the House are to be made available to any Member of the House for examination in the Clerk's office under the following conditions: (a) no notes may be taken or any document copied; (b) no document may be removed; (c) the Clerk is to maintain a record of the documents inspected, the date and time of the inspection and the name of the Member inspecting the document. (2) Any privileged document identified as a Cabinet document is to remain in the custody of the Clerk and not be made available to any Member of the House. 7.(1) That in the event of a dispute by any Member of the House, communicated in writing to the Clerk, as to the validity of a claim of privilege in relation to a particular document, the Clerk is authorised to release the disputed document to Sir Laurence Street, who is to be appointed by the President as an independent arbiter. The independent arbiter is to evaluate and report on the validity of the claim within 5 days. (2) If Sir Laurence Street is not available to act at any time as an independent arbiter, the President is to appoint some other person to undertake any evaluation and report required under paragraph 7(1). The President must consult with the Attorney-General and the Leader of the Opposition before an appointment is made. (3) Any report of the independent arbiter is to be lodged with the Clerk of the House, who is to inform the House of the receipt of the report. Paragraph 6(1) applies to a report of the independent arbiter. 8. A document subject to a disputed claim of privilege under paragraph 7, and the report of the House made by Notice of Motion given at a previous sitting of the House and with 24 hours' notice. The Notice of Motion is to be listed on the Business Paper as Business of the House." 106 Consistently with his claim that the Council had no power to require him to comply with Order 4 of the above resolution, the plaintiff did not deliver the required documents. 107 The plaintiff was suspended from the service of the Council on 27 November 1998. In implementing the suspension the following happened (the words but not the punctuation of pars 33-35 of the statement of claim are here copied). Shortly after 11 am on 27 November 1998 the third defendant, whilst carrying a Black rod, approached the plaintiff, as a result of which the plaintiff apprehended that the third defendant was about to remove him from the House by application of force; the third defendant intended to create in the mind of the plaintiff the apprehension that he was about to remove him from the House by the application of force; the third defendant thereupon escorted the plaintiff from the House. 108 The plaintiff claimed that the conduct of the third defendant constituted an assault upon him. The defendants admitted the conduct would have constituted an assault had it not been justified but said it had been justified by the Order of the Council authorising the removal of the plaintiff and the consequential direction of the first defendant to the third defendant directing the removal of the plaintiff from the Council on 27 November 1998.

Issues from the pleadings. 109 A considerable number of substantial matters were put in issue by the defendants' defence to the plaintiff's statement of claim in its presently final form. When the proceedings began the only suspension alleged was that of 20 October 1998, following which the plaintiff voluntarily left the House. When however the statement of claim was amended to allege forcible removal following the suspension of 27 November 1998 the matters to be argued became much fewer. As the earlier larger number of issues remained formally on the record I have listed them in an appendix to these reasons.

Issues finally argued. 110 Until the plaintiff's statement of claim was amended because of the events of 27 November 1998, the plaintiff had not been in a position to make a claim of assault (as he had been able to do in Egan v Willis). For this reason the defendants had raised issues, such as justiciability, and other arguments not eventually pursued because of the later events, in particular those above set out as happening on 24, 26 and 27 November. The events of these days became the material ones for the purposes of the argument, and in relation to them the question of justiciability inter alia was no longer significant. 111 When the argument before the court was complete, two issues were, in substance, left for the court to decide. The principal one was whether the power of the Council to require production of documents, upheld by the High Court in Egan v Willis, was a power which included the power to require production of privileged documents of two classes: those to which legal professional privilege attached and those entitled to public interest immunity. For the plaintiff it was argued that the power did not extend to either class. 112 The second issue arose only if the plaintiff succeeded on the first issue. In that event, the further issue would arise: if a person required by the Council to produce documents claimed either class of privilege, who was to decide whether the claim, in regard to any particular document, should be allowed.

Did the Council's power extend to documents to which legal professional privilege attached at Common Law and/or were entitled to public interest immunity at Common Law? 113 The plaintiff's argument that the Council's power to compel production of documents did not extend to documents to which the doctrines of legal professional privilege and public interest immunity attached took the following form: 1. Legal professional privilege is a fundamental common law right: Baker v Campbell (1983) 153 CLR 52; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. So is public interest immunity: Jacobsen v Rogers (1995) 182 CLR 572. 2. The availability of the rights is against all forms of compulsory disclosure and is not restricted to judicial or quasi judicial proceedings. For this proposition the plaintiff relied on a passage in the reasons of the majority (Mason CJ and Dean, Dawson, Toohey and Gaudron JJ) in Jacobsen v Rogers . The case was one in which the State of Western Australia was claiming, among other things, that public interest immunity attached to documents which the Australian Federal Police were seeking to seize under a search warrant obtained pursuant to the Crimes Act 1914 (Cth). The State of Western Australia succeeded. Public interest immunity was held to justify non production of the documents. The passage in the majority's reasons cited in the plaintiff's argument was as follows:

"In Baker v Campbell, this court held by a majority that the doctrine of legal professional privilege is not confined to judicial and quasi judicial proceedings and extends to the compulsory disclosure of communications in extra judicial proceedings. In particular, it was held to extend to search and seizure under a warrant issued pursuant to s 10 of the Crimes Act. The majority referred to the principle that a basic common law doctrine is not to be abrogated except in the clearest of terms and held that s 10, being silent upon the matter, did not exclude the doctrine of legal professional privilege. Public interest immunity reflects public policy as does legal professional privilege, although it has never been thought to be confined to judicial and quasi judicial proceedings. In accordance with the approach adopted in Baker v Campbell, it is open to the Crown to resist the seizure under s 10 search warrant of documents to which public interest immunity attaches. (at 589, citations omitted) 3. Unless abrogated by statute in unmistakably clear language the common law doctrines of legal professional privilege and public interest immunity have their full force and effect: Baker v Campbell ; Jacobsen v Rogers ; Coco v The Queen (1994) 179 CLR 427 and other cases. 4. The New South Wales Executive is in the present case entitled to rely upon the privilege and the immunity. 114 I accept the first and third steps in the argument. It is the second step which raises the central question in this part of the case. The answer to that question will decide whether the last step is correct. 115 The second step is correct in saying that it is now recognised that legal professional privilege and public interest immunity are common law rights which may be relied on not only in judicial or quasi judicial proceedings, but also in other situations. The cases which have established this have been cases where an authority has sought to execute a search warrant against documents for which one or other of the rights was asserted: Baker v Campbell, Jacobsen v Rogers, Propend Finance. 116 The plaintiff says in the present case that the principle underlying those cases is at least wide enough to support the proposition that the privilege and the immunity attach to documents in the possession of the Executive when they are called for by a House of Parliament. 117 The defendants say that this contention is incorrect. They concede the privilege and immunity justify the withholding of particular documents by a person from another person when the persons are in an adversarial situation, whether the contest be in or outside the court or tribunal, but they say there is no such situation in the present case. They accordingly say the public policy reasons which have been held to require the privilege and immunity at common law do not have any relevance to an issue arising between such persons or bodies as the Executive of the State and one of the two Houses of the Legislature of the same State, both of a public nature, whose very existence is for the public benefit of the State. 118 The court has been told that neither in the United Kingdom nor in Australia has the present question ever been decided by a court. Both in the United Kingdom Parliament and the Parliament of the Commonwealth of Australia assertions have been made from time to time on the one hand on the part of the Executive that a House of Parliament does not have the power here claimed, and on the other hand the House of Parliament has asserted that it does. The conflicting claims have either been resolved by negotiation or by one side or the other not pressing its claim but equally not abandoning it. This has been pointed out repeatedly by parliamentary committees considering the question: see for example Report on Matters Referred by Senate Resolution of 17 July 1975 by the Senate Standing Committee of Privileges, 7 October 1975, Commonwealth Parliamentary Paper No 215 of 1975, par 15, p 10 and Report on Inquiry into Sanctions where Minister Fails to Table Documents, Report No 1 of the New South Wales Legislative Council's Standing Committee on Parliamentary Privileges and Ethics, May 1996 par 3.3.10, p 18. Full details until 1995 are given in an article, generally informative on the whole of the present topic, "Parliamentary Inquiries and Government Witnesses" by G. Lindell in 1995 20 Melbourne University Law Review 383, at 398. 119 To deal with the opposing contentions of plaintiff and defendants on the main question it is necessary to consider (a) the reasons why the common law recognised the two rights, (b) the functions of the Executive in New South Wales and (c) the functions of the New South Wales legislature, in particular the functions of the Council. 120 (a) The reasons for the rights. (i) Legal professional privilege. In Propend Gaudron J cited (at 543) what had been said by Gibbs CJ in Baker v Campbell as the purpose served by legal professional privilege. Gibbs CJ had said:

"It is necessary for the proper conduct of litigation that the litigants should be represented by qualified and experienced lawyers rather than that they should appear for themselves, and it is equally necessary that a lawyer should be placed in full possession of the facts to enable him to give proper advice and representation to his client. The privilege is granted to ensure that the client can consult his lawyer with freedom and candour, it being thought that if the privilege did not exist 'a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case'." (at 66) 121 A feature of legal professional privilege which it is convenient to mention here is that, at common law, once it is found to attach to a particular document, that document is immune from production to the party seeking it. There is no balancing process involved. 122 (ii) Public interest immunity. In the passage earlier cited from Jacobsen v Rogers the majority had remarked that "Public interest immunity reflects public policy as does legal professional privilege...". The public policy underlying public interest immunity was dealt with in some detail in Sankey v Whitlam (1978) 142 CLR 1 by three members of the court of five who decided the case (Gibbs ACJ, Stephen, Mason, Jacobs and Aickin JJ). 123 Gibbs ACJ said the general rule was that production would not be ordered if it would be injurious to the public interest to disclose it (at 38). Sometimes however the administration of justice might be frustrated by the withholding of a document. In such a case the court must weigh the competing aspects of the public interest (at 39). In a case where the ordering of production of the document would put the interest of the State in jeopardy, no order should be made (at 39). Stephen J said the touchstone of the doctrine is the need to determine "what shall be done in the light of how best the public interest may be served, how least it will be injured" (at 59). Mason J said that when there was an objection to production of documents on the ground of Crown privilege

"the Court must evaluate the respective public interests and determine whether on balance the public interest which calls for non disclosure outweighs the public interest in the administration of justice that requires that parties be given a fair trial on all the relevant and material evidence." (at 95-96) 124 Mason J went on to consider the various elements which had to be taken into account when there was an objection to production of cabinet papers, government policy documents and high level communications passing between ministers and senior public servants. After discussion of various authorities and opinions, he said that the reason which underlies the public interest against production and disclosure of Cabinet proceedings and other high level policy deliberations was the view that a government cannot function completely in the open but must be able to preserve the confidential nature of its internal processes. However, once the topics dealt with in such documents were no longer current he thought the risk of injury to the efficient working of government was slight. He also referred to the ability of the court to diminish any risk by restricting access to such documents as may be produced (at 98). He also thought the need for non production was stronger when the documents were dealing with important matters of policy and weaker when they were not (at 99). He later referred to the public interest in the documents being available for the trial of the pending criminal charge there relevant was extremely strong (at 100). His eventual conclusion was that all the documents in question other than Loan Council papers should be produced (at 101). 125 There are two comments to be made here. One is that public interest immunity is different from legal professional privilege in that the privilege from production does not attach simply because a particular document falls within a particular description. Before production is refused there must always be a weighing of the public interest in its non production against the public interest in its production. This weighing process by the court involves production at two levels: the first, not usually spoken of, production to the court, and then the second, production, or denial of production, to the parties in the litigation. The power to compel production to the court necessarily exists so that the weighing of interests can be carried out. 126 The second comment is that the law concerning public interest immunity, as Sankey v Whitlam shows, became settled at a time when the two public interests which had to be weighed were on the one hand the public interest, and on the other the executive interest, in fair trials; that is, the law grew up before the later development exemplified by Baker v Campbell and Jacobson v Rogers which extended the operation of both legal professional privilege and public interest immunity into at least one field outside that of trials in litigation. 127 In the case of legal professional privilege the question is whether the policy behind the doctrine has any relevance to the different kind of situation that arises between the executive and a House of Parliament. 128 The question appears in a sharper form in regard to public interest immunity, where the weighing process is involved. It is not difficult to make the necessary modifications to the weighing process when the field to which the doctrines have been extended is that of an executive agency seeking to obtain evidence and documents by compulsory procedures from either persons, legal entities or executive agencies of another polity; the opposed interests in each case are clear as are the policy reasons for the existence of the rights. It is more difficult to understand how interests can be weighed against one another when the contestants are the New South Wales Executive and the Upper House of the New South Wales Parliament; they may be opposed in a political sense but they are not opposed either in a legal sense or one analogous to that applicable in all the cases so far where public interest immunity has been held to exist. 129 Finally under the public interest immunity heading, and in regard to its purposes, there is a passage in the reasons of Mason J in The Commonwealth of Australia v John Fairfax & Sons Limited (1980) 147 CLR 39 at 52 which was referred to as authoritative in Jacobsen v Rogers (at 589) in the present context; the case which gave occasion for it was not directly on the present point but because it was an attempt by the Commonwealth to restrain the publication of what the Commonwealth was asserting were confidential documents the publication of which would be harmful to the international interests of Australia, the policy questions raised were very closely analogous to those involved in claims of public interest immunity. Mason J was discussing the different way in which a court would look at the question of the public interest in the restraint of publication when the information sought to be protected was that of a citizen from when it was government information. He said:

"It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action. Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected. The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality." 130 (b) The function of the Executive. It would be possible to deal with this very elaborately. One way to begin would be to consider the present powers and duties of the Governor, the titular head of the Executive in New South Wales, which would involve looking in detail at the Australia Acts 1986 (UK and Cth), the Constitution Act (NSW) as amended by the Constitution (Amendment) Act 1987 (NSW), the Governor's Commission and, probably, many Acts of the New South Wales Parliament in which the governor is mentioned. There would be other ways, equally laborious. 131 However, it seems to me a simpler approach is quite sufficient for present purposes. The function of the Executive today is to be understood against the background of contemporary statements of the nature of representative and responsible government in Australia. A clear description of the first of these aspects was given by Mason CJ in Australian Capital Television Pty Limited v The Commonwealth (1992) 177 CLR 106. He was explaining why the system of government established by the Australian Constitution had become recognised as one of representative government and representative democracy and what that meant. He said (at 137):

"The very concept of representative government and representative democracy signifies government by the people through their representatives. Translated into constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their representatives." 132 And then a little later (at 138):

"... the representatives who are Members of Parliament and Ministers of State are not only chosen by the people but exercise their legislative and executive powers as representatives of the people. And in the exercise of those powers the representatives of necessity are accountable to the people for what they do and have a responsibility to take account of the views of the people on whose behalf they act." 133 In my opinion what was said by Mason CJ about the Commonwealth applies equally to the State of New South Wales. In regard to New South Wales, the Commonwealth Parliament and the New South Wales Parliament between them have the entirety of sovereign legislative power. The Commonwealth Parliament has part of that power in regard to specific heads of power. The New South Wales Parliament has the other part of that power in regard to all matters not specified as powers of the Commonwealth Parliament This is not a full statement of the position, but sufficient for present purposes, where the point is that the two legislatures together have the whole legislative power that exists in regard to New South Wales. . There are of course many differences of detail between the constitutional instruments upon which the separate polities of the Commonwealth and the State rest, but the family resemblance between them is so strong that, particularly since the Australia Acts, the State of New South Wales must in my opinion be regarded as being a representative democracy with a representative government in the sense of those terms as explained by Mason CJ. 134 A principal point for present purposes that follows from this is that the Executive, in exercising its powers, is doing so on behalf of the people of New South Wales as their representatives, not their governors or rulers. Governors (in the full sense) and rulers do not have to account to their people (although wise ones do) but representatives must. In strict technicality it is the electors of New South Wales on whose behalf the Executive acts. The electors are, with minor qualifications all Australian citizens resident in New South Wales over the age of eighteen: see principally, s 20 of the Parliamentary Electorates and Elections Act, and s 22 of the Constitution Act. The theory of representation necessarily has that feature. When the Executive is spoken of as "the government" the word "government" is to be understood in the restricted sense just explained. These considerations apply equally to the Executive in carrying out its role in responsible government in New South Wales. 135 Against that background I will state only briefly my understanding of the function of the Executive. It is, in a nutshell, to execute, or administer, the laws of New South Wales. Every action of the Executive must be a lawful one and one it is empowered to take by law. Government policy fits within these necessities in two ways, one relating to the law as it stands, the other as it is hoped it will stand in the future. As to the first of these, statements of policy by the Executive can only be statements of what the Executive intends to do in a particular aspect of government in carrying out existing laws or what it will be choosing to do amongst various courses of action permitted by existing laws, and, as to the second, what it proposes to do pursuant to laws it will seek to have passed by Parliament. Stated a little more fully, the function of the Executive is to administer the carrying out of existing law in accordance with its policy from time to time, to keep all its administrative policies under review, and to formulate further policy which it thinks desirable in the public interest which can be put into effect either on the basis of the law as it stands or if Parliament passes legislation which will enable the further policy to be lawfully carried out. All of this is to be done in the public interest. The entire conduct of the administration of the laws by the Executive is only possible by the use of people employed, in one way or another, by the Executive and by the use of assets of one kind or another, which may be publicly or privately owned but which in the latter case must be paid for. Every act of the Executive in carrying out its functions is paid for by public money. Every document for which the Executive claims legal professional privilege or public interest immunity must have come into existence through an outlay of public money, and for public purposes. 136 (c) The functions of the Houses of Parliament, in particular the Council. The Legislature which by s 5 of the Constitution Act (NSW) has power to make laws for the peace, welfare and good government of New South Wales is defined in s 3 of the Act as meaning her Majesty the Queen with the advice and consent of the Council and the Assembly. The established convention in New South Wales is that the Legislature as defined produces legislation by agreement on bills passed in both Houses which are signed by the Governor on behalf of the Queen when duly presented to the Governor for signature. Once assented to by the Governor Acts of Parliament become law at the time provided for in them. 137 The task of the two Houses of Parliament is to keep the laws of the State under constant review so that they may be repealed, amended or added to in accordance with the public interest and the necessities of the time. Their task also includes that of questioning and criticising government on behalf of the people. This view was expressed by the Electoral and Administrative Review Commission of Queensland in its Report on Review of Parliamentary Committees and was cited with apparent approval by the majority of the High Court in Egan v Willis (par 42). The majority in that case also cited a further observation of that Commission that "to secure accountability of government activity is the very essence of responsible government" (also in par 42). These citations appear in a section of the majority reasons in Egan headed "The functions of the Legislative Council" (pars 35 to 45). Also cited with apparent approval in that section was the observation of J.S. Mill that the task of the Legislature was "to watch and control the government: to throw the light of publicity on its acts" (also cited in par 42). 138 Later in the same section of their reasons the majority said:

"One aspect of responsible government is that Ministers may be members of either House of a bicameral legislature and liable to the scrutiny of that chamber in respect of the conduct of the executive branch of government. Another aspect of responsible government, perhaps the best known, is that the ministry must command the support of the Lower House of a bicameral legislature upon confidence motions. The circumstance that Ministers are not members of a chamber in which the fate of administration is determined in this way does not have the consequence that the first aspect of responsible government mentioned above does not apply to them nor is it a determinative consideration that the political party or parties, from members of which the administration has been formed, 'controls' the lower but not the upper chamber. Rather, there may be much to be said for the view that it is such a state of affairs which assists the attainment of the object of responsible government of which Mill spoke ..." (par 45) 139 Opinion: Legal professional privilege. I do not think that the justification for legal professional privilege applies in New South Wales when a House of Parliament seeks the production of Executive documents. The Executive and the House perform their different functions in the same public interest, funded by public money. The legislature is entrusted with the carrying out of the fundamentally important task of reviewing, changing and adding to the statute law of the State. To carry out that task it must have the power to call for any information relevant to carrying out its task. It seems inescapable that there will from time to time be information in Executive documents either necessary or useful for carrying out its task. Possession of the power to compel production does not mean that the power will be exercised unless the House is convinced the exercise is necessary; if exercised, it does not follow that the House will do anything detrimental to the public interest; the House can take steps to prevent information becoming public if it is thought necessary in the public interest for it not to be publicly disclosed. 140 Opinion: Public interest immunity. What I have said in regard to legal professional privilege applies with more obvious force to public interest immunity. This is because, in the adversary situations where public interest immunity may attach to documents to prevent their production, there is no doubt that the decision whether the doctrine attaches or not is, finally, not for the Executive to make, but for a court, after the court has had the documents produced to it. The court may not require to see the documents itself. It may be satisfied by evidence about the nature of the documents or other circumstances in the particular case that it should refuse production to the parties because of public interest immunity: but it undoubtedly has the power to compel production to itself even of cabinet documents, even though the power will in regard to certain cabinet documents be used with the highest degree of circumspection: see The Commonwealth v Northern Land Council (1993) 176 CLR 604 at 617-619. 141 So, if in the adversary situations in which the case law has established public interest immunity may attach, a branch of government other than the Executive is trusted with the power to compel the production of documents for which the Executive claims such immunity, equally there should be no objection in the different situation that arises between the Executive and a House of Parliament, to the possession by another branch of government other than the Executive, of the same power; the more so when the power is necessary for the proper carrying out of the function of that branch of government. 142 The function and status of the Council in the system of government in New South Wales require and justify the same degree of trust being reposed in the Council as in the courts when dealing with documents in respect of which the Executive claims public interest immunity. In exercising its powers in respect of such documents the Council has the same duty to prevent publication beyond itself of documents the disclosure of which will, to adapt the words of Mason J in Fairfax already cited (see par 129), be inimical to the public interest because the security of the State, relations with other governments or the ordinary business of government will be prejudiced. When the Executive claims immunity on such grounds, the Council will have the duty, analogous to the duty of the court mentioned by Mason J in the same passage in Fairfax, of balancing the conflicting public interest considerations. The carrying out of the duty will, in regard to certain cabinet documents, require the same very high degree of circumspection mandated for the courts by the High Court in the Northern Land Council case (at 617-619) already referred to. Although of course his opinion is not of legal authority, it is interesting to note that when in 1994 Senator Gareth Evans, as Leader of the Government in the Senate, gave evidence before the Senate Standing Committee of Privileges on the issue whether the Senate had a power such as that in question in the present case, he having when in Opposition asserted that it did, was asked whether he still held that opinion, he said it did. Speaking with the experience of an academic constitutional lawyer and a long standing Member of the Senate, he said: " In the particular context that we are talking about here - a tussle about whether or not some document or some information should be revealed - the claim that an executive government may make of public interest immunity ... is, I acknowledge, ultimately one for the House of Parliament to determine. That follows from first principles, if you accept that is the way the Constitution works on these matters. As a technical matter, that is the case. But we are arguing, as so often is the case when it comes to constitutional matters, that the technical power might be absolute but the way in which it should be exercised in practice should be regarded as subject to all sorts of conventions and limitations." (Cited by Lindell in the article mentioned in n.1, at 403-404. The date the evidence was given was 18 August 1994. ) This describes the position as I understand it to be in New South Wales also, with the difference that, as the evidence in the present case shows, there are no established conventions and limitations governing the exercise of the power; nevertheless the duty spoken of in par 47 above will operate with something the same effect as an established convention. 143 One result of this view is that, notwithstanding the great respect that must be paid to such incidents of responsible government as cabinet confidentiality and collective responsibility, no legal right to absolute secrecy is given to any group of men and women in government, the possibility of accountability can never be kept out of mind, and this can only be to the benefit of the people of a truly representative democracy.

Conclusion. 144 My answer to the question which I earlier stated as raising the principal issue in the present case is therefore that the Council's power does extend to compel the Executive to produce documents to the Council which, in other circumstances and outside the House the Executive might, after decision by a court, be entitled to withhold on the ground of legal professional privilege or public interest immunity. 145 This conclusion makes it unnecessary for me to consider the second issue which I stated earlier. It would only be necessary to deal with that issue if I had arrived at the opposite opinion in regard to the first issue. 146 The only cause of action which made the plaintiff's claim securely justiciable was the assault alleged. That cause of action failed if the Council had the power which in my opinion it did have. Other claims were maintained by the plaintiff on bases other than that of assault; they can not succeed in my opinion in face of that power of the Council, so I see no need to consider the possible complications of a procedural and jurisdictional kind that attended them. 147 In my opinion the plaintiff's proceedings should be dismissed.

Proposed order. 148 In my opinion the appropriate orders would be that the plaintiff's proceedings be dismissed, judgment be entered for the defendants and the plaintiff ordered to pay the defendants' costs.

Substantive issues raised by the pleadings. 149 These were, in the order in which the defence put them in issue: 1. a question of the proper construction of Order 3(ii) of the Orders of 13 October 1998; 2. the plaintiff's claim of invalidity of Order 3(ii) of the Orders of 13 October 1998; 3. the plaintiff's claim that Orders 4, 5 and 6 of the Orders of 13 October 1998 were beyond the powers of the Council; 4. the plaintiff's claims that the letter of advice dated 26 August 1998 from the Crown Solicitor to the Director General of the Cabinet Office was the subject of legal professional privilege in the Crown and that the submission to Cabinet from the Deputy Premier dated 21 September 1998 was the subject of public interest immunity; 5. that the reason for the Council passing the resolution of 20 October 1998 was not justiciable; 6. the plaintiff's claim that the Orders of 20 October 1998 were beyond the powers of the Council; 7. the plaintiff's claim that Order 3 of the Orders of 20 October 1998 was punitive in nature and therefore beyond the powers of the Council; 8. a question about the proper construction of Order 3(b) of the Orders of 24 November 1998; 9. the plaintiff's claim that Order 3(b) of the Orders of 24 November 1998 was beyond the power of the Council and invalid; 10. the plaintiff's claim that Orders 4, 5 and 6 of the Orders of 24 November 1998 were beyond the powers of the Council and invalid; 11. that the plaintiff delivered to the second defendant before 10 am 25 November 1998 all documents in his possession falling within Order 2 of the Orders of 24 November 1998 other than those in respect of which he claimed legal professional privilege or public interest immunity from production; 12. that the documents in Annexure B were immune from production to the Council; 13. a question of construction of Orders 4(1), 6(1) and 6(2) of the Orders of 24 November 1998; 14. the plaintiff's claim that Orders 4(1), 4(2) and 6, 7 and 8 of the Orders of 24 November 1998 were beyond the power of the Council and invalid; 15. that the validity of Orders 3, 4, 5 and 6 of the Orders of 13 October 1998 and Orders 1 and 2 of the Orders of 20 October 1998 were not justiciable.

150 MEAGHER JA: I have had the opportunity to read in draft the judgments of the Chief Justice and Priestley JA. The latter judgment sets out all the relevant facts. 151 The plaintiff argued the case on the basis that the Legislative Council had no right to call for documents which attracted the protection of legal professional privilege or the protection of public interest immunity. It was not suggested that there was any other basis on which failure to produce documents called for by the Legislative Council could be excused. 152 I agree with the Chief Justice that the Legislative Council may require access to the legal advice on which the Executive acted, in order to fulfil its function on making an informed assessment of the justification of the Executive decision. As the Chief Justice said: "What, if any, access should occur is a matter "of the occasion and of the manner" of the exercise of power, not if its existence. ( R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 187 at 162). If the public interest is thereby harmed, the sanctions are political, not legal." 153 As far as documents which are covered by the doctrine of public interest immunity are concerned, (i.e. if no other basis of non-production is claimed), I cannot see how the Legislative Council is in any different position. The Court cannot possibly prohibit the Council from examining such documents. 154 However, there is a third category of document in question, and that is Cabinet documents. With regard to these, I am in agreement with the Chief Justice. The Cabinet is the cornerstone of responsible government in New South Wales, and its documents are essential for its operation. That means their immunity from production is complete. The Legislative Council could not compel their production without subverting the doctrine of responsible government, a doctrine on which the Legislative Council also relies to justify its rights to call for documents. It follows that Cabinet documents can never be produced until released by Cabinet. No process can arise for the Courts - or anyone else - balancing interests against each other. Nor, in my view, is the analogy drawn by Priestley JA with confidential government documents at all appropriate. In the realms of confidentiality it may be that the mantle of protection weakens with the passage of time; in the realms of Cabinet documents there is no room for holding that time will wither them. 155 The action must be dismissed. As to costs, in my view the plaintiff should pay the defendants' costs, as he lost all the issues which he argued.

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