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).