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[1998] HCA 71
High Court of Australia
1998-11-19
Callinan JJ, Hayne JJ, Gleeson CJ, Mahoney P, Priestley JA
Original judgment source is linked above.
High Court of Australia Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ Egan v Willis [1998] HCA 71
On 1 May 1996, the Legislative Council of New South Wales passed a resolution calling on the appellant, the Leader of the Government in that House and Treasurer, Minister for Energy, Minister for State Development and Minister Assisting the Premier, to table certain papers in the House or deliver them to the Clerk. The appellant did not do so, the Cabinet having earlier agreed that Ministers should decline to comply with any orders from either House of Parliament to table documents.
On 2 May 1996, the Legislative Council passed a resolution adjudging the appellant guilty of a contempt of the House (par 2), suspending him from the service of the House for the remainder of the day's sitting (par 3(a)), and ordering him to attend in his place at the Table of the House on the next sitting day to explain his reasons for not complying with a number of orders of the House to table documents, including the papers mentioned in the resolution of 1 May 1996 (par 3(b)). The appellant did not leave the House. The Usher of the Black Rod (the second respondent) was directed by the then President of the Legislative Council (the first respondent) to escort the appellant from the chamber and the parliamentary precincts. Black Rod did this, taking the appellant from the chamber and the parliament building out on to the footpath of Macquarie Street.
The appellant brought an action in the Supreme Court of New South Wales seeking declarations that (i) pars 2 and 3 of the resolution of 2 May 1996 were invalid and (ii) his removal into the street constituted a trespass. Those proceedings were removed into the Court of Appeal of New South Wales. That Court (Gleeson CJ, Mahoney P, Priestley JA) [1] dismissed the claim for the first declaration and, in respect of the other claim, declared that the respondents "committed an actionable trespass to the person of the [appellant] by reason of the extent of his removal on 2 May 1996".
The Court of Appeal, in dismissing the claim for a declaration of the invalidity of pars 2 and 3 of the resolution, dealt with the merits of the matter rather than on the footing that a bare declaration with respect to the validity of proceedings in the Legislative Council should not be made. The Court of Appeal appears to have dealt with the merits on the footing that the questions respecting the privileges of the Council required an answer as a necessary step to a determination of the private rights of the appellant for which he sought vindication through the tort of trespass to the person.
We emphasise that, even if an application for a bare declaration of the nature we have described would have been justiciable (as to which we express no concluded opinion), at least as a matter of discretion, a suit constituted solely to obtain such relief ordinarily ought not be entertained. Questions respecting the existence of the powers and privileges of a legislative chamber may present justiciable issues when they are elements in a controversy arising in the courts under the general law [2] but they should not be entertained in the abstract and apart from a justiciable controversy. Declaratory relief should be directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the courts [3] . This is so even though in the area of public law the ground of equitable intervention has not been limited to the protection of any particular proprietary or legal entitlement of the plaintiff [4] .
The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever:
Provided that all Bills for appropriating any part of the public revenue, or for imposing any new rate, tax or impost, shall originate in the Legislative Assembly.
Section 5A establishes a procedure whereby money Bills may be presented for the Royal Assent, notwithstanding that the Legislative Council has not assented thereto. Section 5B makes a special provision dealing with disagreements between the two Houses with respect to Bills other than those to which s 5A applies; these provisions include a joint sitting of members of both chambers and may lead to the submission of the Bill in contention by way of referendum to the electors. Section 7A entrenches the position and powers of the Legislative Council.
The acts that are said by the appellant to be a trespass are acts that were done following the resolution for suspension of the appellant from the service of the House. That a House of the Parliament of New South Wales has power to suspend one of its members in some circumstances cannot be doubted and no party or intervener sought to argue to the contrary. Rather, the argument focused upon the occasion for suspension and upon the question of principle of whether the Legislative Council has power to require one of its members, who is a Minister, to produce State papers to the House. Some reference to the Standing Orders of the Legislative Council should be made.
Part V of the Standing Rules and Orders of the Legislative Council (the Standing Orders) is headed " Papers ". It comprises Standing Orders 18-22. Standing Order 18 states:
Any Papers may be ordered to be laid before the House and the Clerk shall communicate to the Premier's Department any such order. Standing Order 20 provides: All Papers and Documents laid upon the Table of the House by a Minister shall be considered public, and may be ordered to be printed on motion without notice, and it shall always be in order on the presentation of any document, except a Petition, Return to Address, or Order, for the Member presenting it to move, without previous notice, that it be printed, and, if desired, that a day be appointed for its consideration. The Clerk "shall distribute to each Member of the Council a copy of each Paper printed by Order of the Council, and shall transmit to the Clerk of the Assembly a sufficient number of copies of all such Papers for distribution to the Members thereof" (Standing Order 22).
In the Court of Appeal, Gleeson CJ said that the context shows that Standing Order 18 "refers to what are sometimes called State papers, that is to say, papers which are created or acquired by ministers, office-holders, and public servants by virtue of the office they hold under, or their service to, the Crown in right of the State of New South Wales" [10] .
Part VIII of the Standing Orders is headed " Questions Seeking Information from the Government or Private Members " and comprises Standing Orders 29-32a. Standing Order 29 deals with Question Time. It states:
Questions may be put to Ministers of the Crown relating to public affairs; and to other Members, relating to any Bill, Motion, or other public matter connected with the business of the House, in which such Members may be concerned, and the Clerk shall enter upon the Minutes of Proceedings the Questions of which formal notice shall have been given, with the answers returned to the same.
In the Court of Appeal, the Chief Justice described the circumstances of the dispute giving rise to the present litigation. His Honour said [11] :
During 1995, in respect of a number of politically controversial government proposals, the Legislative Council, under Standing Order 18, resolved that there be tabled, in [that] House, documents relating to various activities of "the Government".
There was nothing novel about such resolutions. The Court has been given details of many occasions, going back to 1856, when the Legislative Council has passed resolutions requiring the production to the Council of State papers. It appears that, in the great majority of such instances, the requirement has been obeyed without demur. However, on several of the occasions in 1995 mentioned above, the power of the Legislative Council to require the tabling of State papers was disputed.
The issue came to a head with respect to a matter concerning a proposal by a mining company in relation to a gold mine at Lake Cowal near West Wyalong. The nature of the political controversy in relation to the proposal is irrelevant. It suffices to say that the Opposition in the Legislative Council moved for the appointment of a Select Committee to inquire into and report upon certain decisions that had been made by a Commission of Inquiry, and advice or information that had been received by the Government about the matter.
On 23 April 1996, the Legislative Council resolved that there be tabled "all papers" relating to the consideration by the Government of the report of the Commission of Inquiry and the determination of the consent to the project. The resolution stated that it would be a sufficient compliance "for the Minister to table the documents required by delivering them to the Clerk of the House". It is common ground that the "Minister" referred to was the appellant.
On 29 April 1996, Cabinet considered the resolution and made the following decision [12] :
The Cabinet agreed that Ministers should act on advice previously obtained from Crown Law officers and, accordingly, decline to comply with any orders from either House of Parliament to table documents on the grounds that such orders are invalid and beyond power. 1. Egan (1996) 40 NSWLR 650 at 655.
On 2 May 1995, the appellant had informed the Legislative Council that, in addition to acting in respect to his own portfolios, he would, in the matter of the representation of government responsibilities in the Council, represent the Premier and a number of other named Ministers, including the Minister for Urban Affairs and Planning. Section 38A of the Constitution Act provides for, at any one time, one Minister of the Crown who is a member of the Legislative Assembly to sit in the Legislative Council, with the consent of that body, and for the purpose only of explaining the provisions of any Bill relating to or connected with any Department administered by him; this Minister may take part in any debate or discussion in the Legislative Council on that Bill but shall not vote in the Legislative Council. The provision for "representation" by the appellant, including of the Minister for Urban Affairs and Planning, had no foundation in s 38A. In the Court of Appeal, the Chief Justice observed [13] :
In this context, the concept of representation has a significance based upon convention and parliamentary practice. It has no defined legal or constitutional status. A minister who is a member of one of the two Houses will be represented in the other House; the representative, the Court was informed, undertakes "the accountability obligations" of the minister being represented "to the extent permitted by the co-operation" of the latter. The Chief Justice also noted [14] : It has been agreed between the parties that the [appellant] had in his custody and control at least four documents which were capable of being regarded as falling within the resolution of 23 April 1996. One of those documents was a report, or a copy of a report, from the Director-General of Urban Affairs and Planning to the Minister for Urban Affairs and Planning, dated 2 April 1996. The other three documents were described as ministerial briefing notes which had been prepared for the purpose of enabling the [appellant] to answer questions in the Upper House on the subject of the Lake Cowal project. There is no agreement, or evidence, as to whether the [appellant] had, or could obtain, any other documents, or copies of documents, falling within the resolution. The [appellant] has taken his stand, not upon any suggested compliance with the orders of the Council, but upon what he contends is the Council's inability to compel compliance. 1. Egan (1996) 40 NSWLR 650 at 654. 2. Egan (1996) 40 NSWLR 650 at 655.
What we have observed when outlining the course of the proceedings in the Court of Appeal indicates a necessity to say something of the role of the courts in a dispute like this. In order to understand that role, it is necessary to refer to some matters of history.
The history of the relationship between the courts and Parliament at Westminster is long and, at times, has been marked by conflict and controversy. That history underlies and underpins much of the law that has developed in this country. Central to the understanding of much of the history of the relationship between the courts and the Westminster Parliament is Art 9 of the Bill of Rights [15] :
That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament. And Art 9 is relevant to the issues that fall for decision in this case because the Bill of Rights is one of the Imperial Acts dealt with in the Imperial Acts Application Act 1969 NSW. Section 6 of that Act declares the Bill of Rights and various other statutes (including Magna Carta and the Habeas Corpus Acts 1640 [16] , 1679 [17] and 1816 [18] ) so far as those Acts were in force in England on 25 July 1828 to have been in force in New South Wales on that day. This restates the effect of the Imperial Act known as the Australian Courts Act [19] . The Imperial Acts Application Act further declares that, except so far as affected by any Imperial enactments or State Acts from time to time in force in New South Wales, these Acts have remained in force and shall be in force in the State. It was not suggested that Art 9 of the Bill of Rights had been affected by any Imperial or State Act. 1. 1 Wm & Mary Sess 2 c 2. 2. 16 Ch I c 10, s 6. 3. 31 Ch II c 2, ss 1-8, part of s 11 and ss 15-19. 4. 56 Geo III c 100. 5. 9 Geo IV c 83.
Applying the Bill of Rights in New South Wales presents some textual problems, if only because it is a statute that, when enacted, was directed to the English courts and Parliament. Yet the evident intention behind the provisions of the Imperial Acts Application Act that have been mentioned is that the constitutional norms prescribed by the Bill of Rights should apply in New South Wales. In particular, so far as presently relevant, the evident intention was that there should be some limits upon the extent to which events happening in the New South Wales legislature may be considered in the courts. It may very well be that effect is to be given to that intention simply by reading the references in Art 9 to "court" and "parliament" as references to the courts and Parliament of the State. But not all other provisions of the Bill of Rights or other preserved Imperial Acts may admit of so ready a solution to the problems of how they are to be applied and it may be that more radical solutions may be required in such cases [20] . These are questions that need not be addressed in this case.
The powers and privileges of the Legislative Council
It was submitted that other considerations should be taken into account since federation and since the passing of the Australia Act 1986 Cth. In particular, it was contended that the Commonwealth Constitution's reference to and conferral of functions upon the Parliaments of a State or its Houses (see, eg, ss 9, 15) and its continuation of the Constitution of each State of the Commonwealth (s 106) may affect the powers or privileges of the Houses of the State Parliaments. And it was further contended that account may have to be taken of the Australia Act, including its references to the legislative and other powers of the State Parliaments (see, eg, ss 2, 3, 4) and its termination of responsibility of the United Kingdom government in relation to State matters (s 10).
It is not necessary to consider in this case whether these submissions are right. It was not suggested that to take account of the Commonwealth Constitution or the Australia Act would lead to any diminution in the powers and privileges of the State Parliaments when those powers and privileges are identified according to what hitherto have been accepted principles. It is sufficient, therefore, for the purposes of this case, to apply the tests that have been applied in earlier authority.
In identifying the functions of the Legislative Council of New South Wales and what is "necessary" to the "proper exercise" of those functions, it is, again, desirable to make some reference to history.
As Gleeson CJ said in his reasons for judgment in the Court of Appeal [39] :
At the present time New South Wales has a responsible and representative system of government, with a legislature comprising the Queen, the Legislative Council, and the Legislative Assembly. The members of both Houses are popularly elected, although the methods of election, and terms of office of the members, are different. However, his Honour went on to point out that many aspects of responsible government, as it presently exists in the State, are not identified in the Constitution Act and depend upon what has come to be fixed by convention. The Chief Justice said [40] : The Constitution Act makes no reference to Cabinet. It does not refer to the conventional requirement that ministers be chosen from amongst the members of one or other of the Houses of Parliament. It does not reflect the conventional requirement that the Governor may only appoint as Premier a person who commands the confidence of the Legislative Assembly, or that the ministry must have the confidence of that House. No reference of any kind is made to the party system, which is of such importance at the level of political practice. 1. Egan (1996) 40 NSWLR 650 at 659. 2. Egan (1996) 40 NSWLR 650 at 660.
It was the Constitution Act 1855 Imp [41] (the 1855 Imperial Act) that first provided for a bicameral legislature for New South Wales. Under that Act, the members of the Legislative Council were nominated, for life, by the Governor. (Members of the Legislative Council have been elected in New South Wales only since 1933, first by the two chambers of the legislature and later by popular election [42] .) Opinions differ about whether the changes made by the 1855 Imperial Act to the institutions of government in New South Wales were designed to bring any particular form of responsible (as well as representative) government to what was then the Colony of New South Wales [43] .
Moreover, the conduct of the executive branch is not confined to Ministers and the public service. It includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature. In Australia, s 75(v) of the Constitution and judicial review of administrative action under federal and State law, together with freedom of information legislation, supplement the operation of responsible government in this respect. 1. Kinley, Governmental Accountability in Australia and the United Kingdom: A Conceptual Analysis of the Role of Non-Parliamentary Institutions and Devices, University of New South Wales Law Journal, vol 18 (1995) 409, at p 411 . 2. Mill, Considerations on Representative Government (1861), p 104. 3. Queensland, Electoral and Administrative Review Commission, Report on Review of Parliamentary Committees (October 1992), vol 1, par 2.23. 4. (1997) 189 CLR 520 at 561. 5. Lange (1997) 189 CLR 520 at 561.
Each Minister is responsible to Parliament for the conduct of his or her Department, and for the actions carried out by the Department in pursuit of Government policies or in the discharge of responsibilities laid upon him or her as a Minister. Ministers are accountable to Parliament, in the sense that they have a duty to explain in Parliament the exercise of their powers and duties and to give an account to Parliament of what is done by them in their capacity as Ministers or by their Departments. On the other hand, the Court recently affirmed that the confidentiality of Cabinet deliberations reflects the principle of collective responsibility which "remains an important element in our system of government" [61] . 1. Questions of Procedure for Ministers first published by the Cabinet Office in 1992, par 27. The text appears in Brazier, Ministers of the Crown (1997), pp 262-263 and in par D4.57 of the Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions (The Scott Report), HC 115, vol 4, ordered by the House of Commons to be printed, 15 February 1996. See also Tomkins, Government Information and Parliament: Misleading by Design or by Default? [1996] Public Law 472, at pp 478-481 . 2. The Commonwealth v Northern Land Council (1993) 176 CLR 604 at 615.
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 in 1861.
The arrangements made for New South Wales for the period following 1855 provided the elements of what now should be identified as a system of responsible government. There was an assumption of a measure of examination of the executive by the legislature as well as legislative control over taxation and appropriation of money. The consideration that the government of the day must retain the confidence of the lower House and that it is there that governments are made and unmade does not deny what follows from the assumption in 1856 by the Legislative Council of a measure of superintendence of the conduct of the executive government by the production to it of State papers.
It is not necessary to consider for the purposes of this appeal the limits involved in that superintendence. What is presently significant is the immediate interrelation between that superintendence and the lawmaking function in which the Legislative Council participates, together with the Legislative Assembly and the Crown.
The principle derived from the authorities and not challenged on this appeal is that the Legislative Council has such powers, privileges and immunities as are reasonably necessary for the proper exercise of its functions. As Priestley JA emphasised in the Court of Appeal [65] , to decide whether a particular power, here the power of suspension of a member for a limited time from the service of the House, is reasonably necessary for the Legislative Council to perform any constitutional function, it is necessary first to identify that function.
The primary function of the Legislative Council is indicated by s 5 of the Constitution Act. This is the exercise by the Legislative Council, as an element of the legislature, of its power, subject to the provisions of the Commonwealth Constitution, to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever. As has been pointed out, subject to restrictions with respect to money Bills, a Bill may originate in the Legislative Council. Further, the Legislative Council has, in general, equal power of disallowance of delegated legislation [66] .
In addition, 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 in 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 maintained by the Legislative Council.
Such a position might be varied or abrogated by legislation. There has been no such legislation which is relevant to the present issue. In that regard, it will be noted that in respect of disagreements between the two chambers, s 5B of the Constitution Act provides a special mechanism which may lead to the submission of the measure to the electors.
In the Court of Appeal, Priestley JA pointed to the broad reach of the legislative power conferred by s 5 as indicating an imperative need for each chamber to have access to material which may be of help to it in considering not only the making of changes to existing laws or the enactment of new laws but, as an anterior matter, to the manner of operation of existing laws [67] . That anterior matter, as his Honour said, "clearly embraces the way in which the Executive Government is executing the laws" [68] .
Questions of privilege may arise in relation to the production of documents. No such question arises here. Reduced to its essentials, what happened in the present case involved the determination by the Legislative Council to seek the provision to it by a member, who is a Minister and who "represented" another Minister in the Legislative Assembly, of State papers which, as Gleeson CJ described them, related "to matters of government business which the Council wished to debate" [69] . The appellant had in his custody and control certain documents which fell within the description of those sought in the relevant resolution. The Minister chose not to produce the papers, claiming, consistently with the position taken by the Cabinet, that the Legislative Council had no power to call for them. He was then suspended for the balance of the day's sitting.
If a member will not produce documents sought by the House there may be some limits to the steps it may take in response. In Barton v Taylor [70] the Privy Council said:
[I]t may very well be, that the same doctrine of reasonable necessity would authorise a suspension until submission or apology by the offending member; which, if he were refractory, might cause it to be prolonged (not by the arbitrary discretion of the Assembly, but by his own wilful default) for some further time. The facts pleaded in this case do not raise the question whether that would be ultra vires or not. If these are the limits of the inherent or implied power, reasonably deducible from the principle of general necessity, they have the advantage of drawing a simple practical line between defensive and punitive action on the part of the Assembly. A power of unconditional suspension, for an indefinite time, or for a definite time depending only on the irresponsible discretion of the Assembly itself, is more than the necessity of self-defence seems to require, and is dangerously liable, in possible cases, to excess or abuse. It is not necessary to say whether this is an accurate or exhaustive statement of the limits of the powers of the House. But one of the steps that the House may undoubtedly take is to resolve that the member be suspended for a limited time from the service of the House, and that is what happened here. 1. (1886) 11 App Cas 197 at 204-205.
It was submitted that the House may not punish the member concerned but may coerce or induce compliance with its wish. To distinguish between punishing and merely inducing compliance may very well be difficult. Further, to state the distinction in these terms may distract attention from more important considerations of identifying what is the power that has been exercised and whether, or to what extent, the courts may review what has been done in Parliament. But on no view of the authorities did the action taken in passing and implementing pars 2 and 3(a) of the resolution go beyond the boundary of what is permissible. That being so, the appeal should be dismissed. We observed earlier in these reasons that we do not enter upon any question respecting par 3(b).
It is important to emphasise that no question arises in this case about what powers a House of the New South Wales Parliament may have to deal with persons who are not members of the House concerned. Altogether different considerations might arise in such a case. Nor does any question arise about what, if any, consequences might follow from the fact that some claim to privilege from production is made but rejected. Although these matters were canvassed in argument, it is not necessary to decide them.
This important appeal concerns the powers of the Legislative Council of New South Wales, one of the two Houses of the Parliament of that State, and the extent to which, if at all, the courts in that State can make orders or declarations in respect of events occurring within the walls of the Council.
The appeal is brought by the Honourable Michael Egan, a member of the Legislative Council. The appeal arises out of proceedings which he commenced in the Supreme Court of New South Wales as the result of a resolution of the Council, made on 2 May 1996, suspending him "from the service of the House for the remainder of today's sitting" [71] . In the Supreme Court, the appellant sought a declaration that the respondents, the President and the Usher of the Black Rod of the Council respectively, had committed an unlawful trespass to his person by forcibly removing him from the "Chamber to the public footpath on Macquarie Street". He also sought a declaration that two paragraphs of a resolution, passed on 2 May 1996, were invalid. Those paragraphs contained resolutions of the Council which inter alia adjudged the appellant guilty of contempt of the House and suspended him from its service. On 2 July 1996, Dunford J ordered that the proceedings should be removed to the Court of Appeal. His Honour stated certain questions "to be decided" upon the removal. However, the Court of Appeal did not decide or answer the questions. At all events, it did not decide them formally. Instead, it ordered that the "[appellant's] claim for a declaration that the resolutions of the Legislative Council of 2 May 1996 were invalid [be] dismissed". It also declared that the respondents "committed an actionable trespass to the person of the [appellant] by reason of the extent of his removal on 2 May 1996". Pursuant to the grant of special leave, the appellant now appeals against the Order of the Court of Appeal dismissing his claim for a declaration that the resolutions were invalid.
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:
(a) hereby suspends the [appellant] from the service of the House for the remainder of today's sitting;
(b) orders the [appellant] to attend in his place at the Table of this House on the next sitting day to explain:
(ii) the Government's failure to comply with the Order of the House dated 26 October 1995 to table certain documents concerning the recentralisation of the Department of Education.
The sole ground of the notice of appeal filed in this Court states that the Court of Appeal "erred in holding that the Legislative Council had an implied power to order the laying of documents on the table by the appellant, which order was enforceable by the imposition of the sanction of suspension on the appellant". The ground of appeal, as so framed, suggests that there is only one question in the appeal. But in fact there are three. The first is whether the Council has the power to demand that a Minister of the Crown who is the Leader of the Government in the Council should table papers relating to matters that have been dealt with by the Government. The second question, which arises only if the first is answered in the affirmative, is whether the Council has power to suspend the Minister for failing to table papers in the possession of the Government when the Council has directed that those papers be tabled in the Council. Superimposed on these two questions is the third question. It is whether and, if so, to what extent the Supreme Court of New South Wales can make declarations or investigate matters concerning the business of the Council which takes place within the walls of the Council.
The appellant and the respondents were content to have the appeal in this Court determined, as it had been determined in the Court of Appeal, by answering the question whether the powers purportedly exercised by or on behalf of the Council were reasonably necessary for the proper exercise of the functions which the Council intended to execute. In the Court of Appeal, Priestley JA said that both sides accepted that the application of this test was "the only possible basis for the power which the Legislative Council was and is [asserting]" [75] . In my view, however, that test, although appropriate in other contexts as the determinant of the extent of the powers of the Council, is not appropriate when, as here, the issue concerns the right of the Council to obtain information from a Minister of the Crown concerning the business of government and the Minister is a member of the Council. It is not appropriate because, if answered in the affirmative, it must logically lead to the conclusion that the Council, by its resolution, could also adjudge an ordinary citizen guilty of contempt for failing to produce papers falling within the class in issue here, notwithstanding that no statute or common law rule in New South Wales requires a citizen to produce such papers to the Council. If answered in the negative, it must deprive the Council of a power to obtain documents whose production may be of great importance to the proper exercise of responsible government in New South Wales.
In my opinion, the power to adjudge the appellant guilty of contempt of the Council and to suspend him for failing to produce the papers inheres in the Council by reason of its being part of the Parliament of New South Wales. As an institution, that Parliament may not have all the attributes and powers of the Parliament of the United Kingdom whose enactment brought the Parliament of New South Wales into existence. Nevertheless, the powers and privileges of each of the Houses of the Parliament of New South Wales can only be understood by reference to the powers and privileges of the House of Commons and the great constitutional conflicts between the House of Commons on the one hand and the Crown, the House of Lords and the courts of law on the other which remained unsettled until the 19th century. As a result, the privileges and powers of each of the Houses of the New South Wales legislature include the power to obtain information from a Minister who is a member of that House and to suspend that Minister when the House concludes that his or her refusal to produce information is obstructing the business of the House.
Because one of the orders that the appellant sought in his statement of claim was a declaration that a resolution of the Council was invalid, it is necessary to begin by examining the relationship between the common law courts and Parliament when those courts are called upon to determine whether acts done in pursuance of a parliamentary resolution are unlawful. That examination must begin with the relationship of the courts and Parliament at Westminster, particularly the relationship of those courts with the House of Commons.
The principal disputes between the courts and the Houses of Parliament at Westminster arose from the claims of the House of Commons "that no Court has jurisdiction to discuss the legality of anything which its vote has ordered" [76] . The common law courts have rejected that claim [77] , and, as Sir William Anson pointed out in 1909 [78] , "[i]t is safe to say that the Courts have won the day". By 1840, the law was finally settled that, in the absence of a statutory direction, it was a matter for judicial decision as to what were the powers, privileges and immunities of the House of Commons [79] . Whenever a claim of privilege arose in determining the rights and liabilities of subjects, the courts took the view that they had no option but to determine the correctness of the claim of privilege in so far as it was claimed to affect those rights or liabilities [80] . In Stockdale v Hansard [81] , Patteson J said:
[E]very Court in which an action is brought upon a subject matter generally and prima facie within its jurisdiction, and in which, by the course of the proceedings in that action, the powers and privileges and jurisdiction of another Court come into question, must of necessity determine as to the extent of those powers, privileges and jurisdiction: that the decisions of that Court, whose powers, privileges, and jurisdiction are so brought into question, as to their extent, are authorities, and, if I may say so, evidences in law upon the subject, but not conclusive. In the present case, therefore, both upon principle and authority, I conceive that this Court is not precluded by the resolution of the House of Commons of May 1837 from inquiring into the legality of the act complained of, although we are bound to treat that resolution with all possible respect. 1. Anson, Law and Custom of the Constitution, 4th ed (1909), vol 1, p 146. 2. Stockdale v Hansard (1839) 9 Ad & E 1 [112 ER 1112]. 3. Law and Custom of the Constitution, 4th ed (1909), vol 1, p 147. 4. Discussed in R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162. 5. Stockdale (1839) 9 Ad & E 1 at 227-228 [112 ER 1112 at 1197]. 6. (1839) 9 Ad & E 1 at 203 [112 ER 1112 at 1188].
Although the common law courts triumphed in their claim that they had jurisdiction to declare what were the powers, privileges and immunities of the Commons, they nevertheless conceded [82] "that the members of each House of Parliament are the sole judges whether their privileges have been violated, and whether thereby any person has been guilty of a contempt of their authority; and so they must necessarily adjudicate on the extent of their privileges". Moreover, Burdett v Abbot [83] and the Case of the Sheriff of Middlesex [84] established that the courts would not go behind a warrant of commitment for contempt of the Commons. The principle established by those cases was applied to commitments for contempt by the colonial legislature of Victoria in Dill v Murphy [85] and Speaker of the Legislative Assembly (Vic) v Glass [86] , the legislature of Victoria having been given a statutory power to punish for contempt. The circumstances in which the courts will examine a claim of privilege, the breach of which has resulted in a commitment for contempt, were summarised by this Court in R v Richards; Ex parte Fitzpatrick and Browne [87] :
[I]t is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise. The judgment of the House is expressed by its resolution and by the warrant of the Speaker. If the warrant specifies the ground of the commitment the court may, it would seem, determine whether it is sufficient in law as a ground to amount to a breach of privilege, but if the warrant is upon its face consistent with a breach of an acknowledged privilege it is conclusive and it is no objection that the breach of privilege is stated in general terms. 1. Stockdale (1839) 9 Ad & E 1 at 195 [112 ER 1112 at 1186]. 2. (1811) 14 East 1 [104 ER 501]. 3. (1840) 11 Ad & E 273 [113 ER 419]. 4. (1864) 1 Moore (NS) 487 [15 ER 784]. 5. (1871) LR 3 PC 560. 6. (1955) 92 CLR 157 at 162.
Furthermore, the common law courts will not examine the administration of the law - including statute law - within the walls of Parliament when the matters involved relate only to the internal procedure of a House of Parliament. What is said or done within the walls of a parliamentary chamber cannot be examined in a court of law [88] . That was accepted by all the judges in Stockdale [89] . Coleridge J said [90] "that the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules, or derogation from its dignity, stands upon the clearest grounds of necessity".
What is said or done within the walls of Parliament cannot be inquired into in a court of law The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive. Stephen J said [93] : Some of these rights are to be exercised out of parliament, others within the walls of the House of Commons. Those which are to be exercised out of Parliament are under the protection of this Court, which, as has been shewn in many cases, will apply proper remedies if they are in any way invaded, and will in so doing be bound, not by resolutions of either House of Parliament, but by its own judgment as to the law of the land, of which the privileges of Parliament form a part. Others must be exercised, if at all, within the walls of the House of Commons; and it seems to me that, from the nature of the case, such rights must be dependent upon the resolutions of the House. In my opinion the House stands with relation to such rights and to the resolutions which affect their exercise, in precisely the same relation as we the judges of this Court stand in to the laws which regulate the rights of which we are the guardians, and to the judgments which apply them to particular cases; that is to say, they are bound by the most solemn obligations which can bind men to any course of conduct whatever, to guide their conduct by the law as they understand it. Stephen J went on to say [94] : We ought not to try to make new laws, under the pretence of declaring the existing law. But I must add that this is not a case in which I at least feel tempted to do so. It seems to me that, if we were to attempt to erect ourselves into a Court of Appeal from the House of Commons, we should consult neither the public interest, nor the interests of parliament and the constitution, nor our own dignity. We should provoke a conflict between the House of Commons and this Court, which in itself would be a great evil; and, even upon the most improbable supposition of their acquiescence in our adverse decision, an appeal would lie from that decision to the Court of Appeal, and thence to the House of Lords, which would thus become the judge in the last resort of the powers and privileges of the House of Commons. 1. (1884) 12 QBD 271. 2. Bradlaugh (1884) 12 QBD 271 at 275. 3. Bradlaugh (1884) 12 QBD 271 at 286. 4. Bradlaugh (1884) 12 QBD 271 at 286-287.
The legal position of Colonial Legislatures as regards privilege has long been made clear by judgements of the Privy Council. These assert in effect that the privileges of Parliament [99] are essentially peculiar to itself, being the product of long usage, that they are not carried over to any Legislature by its mere performance of similar functions in legislative matters - the Parliament having had more complex origin than mere legislation - and that a Legislature has merely, perhaps in a marked form, the right of any Assembly to secure order in its own proceedings. 1. 2nd ed (1928), vol 1, p 366. 2. That is, the Parliament of the United Kingdom.
The whole question then is reduced to this, - whether by law, the power of committing for a contempt, not in the presence of the Assembly, is incident to every local Legislature.
The Statute Law on this subject being silent, the Common Law is to govern it; and what is the Common Law, depends upon principle and precedent.
Their Lordships see no reason to think, that in the principle of the Common Law, any other powers are given them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment This is the principle which governs all legal incidents. "Quando Lex aliquid concedit, concedere viditur et illud, sine quo res ipsa esse non potest." [102] In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the principle of the Common Law. But the power of punishing any one for past misconduct as a contempt of its authority, and adjudicating upon the fact of such contempt, and the measure of punishment as a judicial body, irresponsible to the party accused, whatever the real facts may be, is of a very different character, and by no means essentially necessary for the exercise of its functions by a local Legislature, whether representative or not. All these functions may be well performed without this extraordinary power.
[The] intention of [the] plea seems to have been to justify the trespass on the ground of an inherent power in every Colonial Legislative Assembly to protect itself against obstruction, interruption, or disturbance of its proceedings by the misconduct of any of its members in the course of those proceedings. After referring to two earlier decisions of the Privy Council [106] , his Lordship said [107] : It results from those authorities that no powers of that kind are incident to or inherent in a Colonial Legislative Assembly (without express grant), except "such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute" [108] . Whatever, in a reasonable sense, is necessary for these purposes, is impliedly granted whenever any such legislative body is established by competent authority. For these purposes, protective and self-defensive powers only, and not punitive are necessary. (Emphasis added.) 1. (1886) 11 App Cas 197. 2. Barton (1886) 11 App Cas 197 at 198. 3. Barton (1886) 11 App Cas 197 at 203. 4. Kielley (1842) 4 Moore 63 [13 ER 225]; Doyle v Falconer (1866) LR 1 PC 328 . 5. Barton (1886) 11 App Cas 197 at 203. 6. Kielley (1842) 4 Moore 63 at 88 [13 ER 225 at 234].
The power, therefore, of suspending a member guilty of obstruction or disorderly conduct during the continuance of any current sitting, is, in their Lordships' judgment, reasonably necessary for the proper exercise of the functions of any Legislative Assembly of this kind; and it may very well be, that the same doctrine of reasonable necessity would authorise a suspension until submission or apology by the offending member; which, if he were refractory, might cause it to be prolonged (not by the arbitrary discretion of the Assembly, but by his own wilful default) for some further time. 1. Barton (1886) 11 App Cas 197 at 204. 2. Barton (1886) 11 App Cas 197 at 204-205.
In my opinion the Speaker had no more authority over the plaintiff when he was outside the chamber than he had over a person who was not a member. The Speaker undoubtedly has power when any person who is outside the chamber is conducting himself in such a manner as to interfere with the orderly conduct of proceedings in the chamber to have that person removed, and for that purpose to obtain the aid of the police. But that is quite a different thing from arresting a person and bringing him into the chamber. The only object of such action is to punish him, or, as Ferguson J said, "that the example made might be effective as a deterrent". 1. (1912) 13 CLR 592. 2. Willis (1912) 13 CLR 592 at 598.
The power of the Council to demand that a Minister table papers
Whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment. 1. (1842) 4 Moore 63 [13 ER 225]. 2. Osborn's Concise Law Dictionary, 8th ed (1993), p 272; Nygh and Butt, Butterworths Australian Legal Dictionary (1997), p 967. 3. (1858) 11 Moore 347 at 360 [14 ER 727 at 732]. 4. Trolley, Draymen and Carters Union of Sydney and Suburbs v Master Carriers Association of NSW (1905) 2 CLR 509 at 523. 5. Fenton (1858) 11 Moore 347 at 360 [14 ER 727 at 732].
In the Court of Appeal, Mahoney P made the radical suggestion [143] that the effect of the Australia Acts might in a future case warrant reconsideration of the principles upon which the implied powers of the individual Houses of Parliament are determined. Presumably, his Honour thought that the Houses may now have the power to punish for contempts committed outside the Parliament or its precincts. Mahoney P said [144] :
The powers of the State legislatures, and accordingly, of the Houses composing them cannot now be determined upon the basis that their legislative powers are limited to the powers appropriate only to a colonial legislative body, that the functions which they are to perform are limited accordingly, and that the powers which they are to have because of what they are and what they may do are to be measured by legal maxims appropriate to powers which are derived from grant. His Honour said that the Parliaments of the States are legislatures with plenary powers "which derive not from grant but from their characters as organs representative of the democratic societies which they represent" [145] . Mahoney P went on to say that, so far as inherent powers were concerned, State Parliaments "have the powers appropriate to a body of that character" [146] . 1. Egan (1996) 40 NSWLR 650 at 685-686. 2. Egan (1996) 40 NSWLR 650 at 685-686. 3. Egan (1996) 40 NSWLR 650 at 686. 4. Egan (1996) 40 NSWLR 650 at 686.
I have already pointed out that, well before the passing of the Australia Acts, the legislatures of the States had plenary powers and could legislate extra-territorially. I have great difficulty in seeing how the passing of the Australia Acts, in some unidentified way, affected the principles by which the implied powers of the individual Houses of the State Parliaments authorise resolutions which legally bind others. It may be that in some situations - which I do not presently see - a House now has functions that it did not have before the enactment of that legislation in 1986. If so, the principle of reasonable necessity may authorise resolutions that a legislative chamber could not have passed before the Australia Acts. But the judgment of Mahoney P appears to suggest that those Acts have changed the whole basis for determining the implied powers of the individual Chambers. His Honour said that they now have the powers "appropriate" to organs representative of a democratic society.
If the learned President means that each of the Houses of a State Parliament has implied power to do all that is appropriate to perform its functions as a democratically elected body, provided it does not affect the rights of outside parties, I would hesitate to disagree with what his Honour says. Arguably, the individual Houses of the legislatures of the Australian colonies and States have always had this power. If he means, however, that individual Houses now have power to coerce and punish individuals so long as what they do is "appropriate" for a democratically elected body, I would unhesitatingly reject the suggestion. It would confuse what is administratively reasonable or appropriate for the individual Houses to do with what it is necessary to do in order to protect the institution and its functions. Indeed, this radical view of the power of the individual Houses would be tantamount to giving each of them an implied legislative power of its own.
Nor has the evolution of the institution of responsible government in this century altered the situation that existed when New South Wales was given self-government. It will later be necessary to examine the functions of the Council. But nothing concerning those functions has been so changed or added to that they are now different in kind from those exercised by the Council at earlier stages of its history. It is true that members of the Legislative Council are now elected while until 1933 they were appointed. But the Legislative Assembly has long been elected directly by the people, and yet the Privy Council and this Court have held that the existence of its implied powers is to be determined in accordance with the principles applicable to other colonial legislatures, whether the particular legislature be elected or appointed [147] .
It is hardly surprising that the Council has no implied power to pass resolutions compelling witnesses to appear before it or to order them to produce documents. Resolutions of a parliamentary chamber cannot alter the law. It has long been accepted that even a resolution of the House of Commons cannot change the law of the land [148] . It is true that the House of Commons has power to compel the production of documents. That power probably arises from the fact that it is also a court of record. That cannot be said of the Houses of the Parliament of New South Wales. Furthermore, although the Crown, in its capacity as one of the three constituent elements of the legislature, may set up a Royal Commission without statutory authority, a Royal Commissioner has no authority to compel a person to attend and give evidence or to produce documents to the Commission in the absence of statutory authority [149] . It would be surprising that an individual House should have the power of compulsion when the Crown which is also an essential part of the law-making body, does not have that power when it seeks information. A House is not a legislature. Its resolutions do not make law. If it claims a power not conferred by positive law, its claim must be rejected unless it can point to a power that inheres in its very existence as a legislative chamber or which is essential in the true sense to the carrying out of its functions.
that the Australian colonies did not demand responsible government in the 1850s. It was imposed upon them before they had sought it. They received it willingly because they believed that it was their destiny, when they saw it established in British North America and New Zealand. But whether or not the colonies demanded that they be given responsible government, no one now denies that New South Wales received responsible government in 1855. 1. "The Responsible Government Question in Victoria, South Australia and Tasmania, 1851-1856", Journal of the Royal Australian Historical Society, vol 63 (1978) 221, at p 222.
The Constitution Act plainly assumed a body of constitutional and political practice which would give meaning to its very sparse provisions. And the contemporary materials make it clear that the Imperial authorities intended that the new Constitution would be administered in accordance with the principles of responsible government [153] . This was so notwithstanding that powerful and conservative interests in the Colony may have taken the view that it was contrary to their interests to have responsible government with Ministers answerable to a Parliament which in turn was answerable to the people. The opposition of these parties - some of whom were responsible for the draft Constitution - may explain the lack of any clear indication in the text of the Constitution that the Colony was to have responsible government. Professor Ward has written [154] :
The leading pastoralists and officials and their allies needed the [Colonial Secretary's] help to have their constitution enacted by the [I]mperial Parliament; therefore, they had to do his bidding by providing for responsible government in the constitution as he wished. They were careful merely to make responsible government possible; they did not make it mandatory and most of them did not believe that it would actually begin for many years. For their purposes responsible government was unnecessary and possibly dangerous, and they did not seek it. 1. Ward, The Responsible Government Question in Victoria, South Australia and Tasmania, 1851-1856, Journal of the Royal Australian Historical Society, vol 63 (1978) 221, at pp 223-224 . 2. Ward, The Responsible Government Question in Victoria, South Australia and Tasmania, 1851-1856, Journal of the Royal Australian Historical Society, vol 63 (1978) 221, at p 224.
However, the Imperial authorities had no doubt that the Constitution was intended to and did in fact introduce responsible government into the Colony. In the Despatch to Governor Denison which transmitted the Imperial Constitution Act, Lord John Russell, who introduced the Imperial Bill into the Parliament on 17 May 1855, wrote [155] :
Paragraph 23 of the Despatch contained the following statement [156] :
And, at the same time, the Colonists of New South Wales, by their avowed desire to assimilate their Institutions, as far as possible, to those of the Parent Country, have proved that this sympathy was not merely the expression of a common sentiment arising from a common origin, but connected with a deliberate attachment to the ancient laws of the community from which their own has sprung. 1. The New South Wales Parliamentary Handbook, 7th ed (1903), p 201.
In my opinion, there can be no doubt that from 1855 the system of responsible government existed in New South Wales, as it existed in the United Kingdom, in so far as that system could be adapted to the circumstances of the Colony [157] . The Constitution Act 1902 NSW, the current successor of the Constitution 1855, makes that even plainer.
In his Preface to the first volume of Professor Redlich's The Procedure of the House of Commons [158] , Sir Courtenay Ilbert, then Clerk to the House of Commons, stated that the business of the House of Commons was "threefold - legislative, financial, critical". He pointed out that Parliament, and the House of Commons in particular [159] :
provides the money required for administrative purposes by authorising taxation; it appropriates, with more or less particularity, the purposes to which the money so provided is to be applied; it criticises the mode in which money is spent and in which public affairs are administered; its support is indispensable to those who are responsible for administration; but it does not administer. That task is left to the executive, that is to say, to Ministers of the Crown, responsible to, but not appointed by, Parliament.
It is this separation but interdependence of the criticising and controlling power on the one hand, and the executive power on the other, that constitutes the parliamentary system of government. (Emphasis added.)
The power of the Council to demand the tabling of documents by a Minister
[T]he ordinary questions put to the members of Government play a very important part in the proceedings of the House of Commons, and give the whole institution the great significance which it possesses.
"Asking questions" is a modern method, developed by recent parliamentary practice, of supervising the general policy and the administrative acts of the Ministry.
The privilege of deciding the order of business enabled the House to obstruct. It could decline to do anything till its grievances were redressed. Of all the great privileges of the House of Commons, none played a greater role in the Commons achieving influence than its capacity to control its own business and to set its own agenda. The view of the Tudor and Stuart monarchs was that the House of Commons was summoned only to vote on the appropriations asked of them, to approve legislation submitted to them and to express opinions on matters of policy only when asked [173] . The House of Commons would not have become the powerful institution that it is if the views of those monarchs had prevailed. The importance of Parliament under the Westminster system is in no small part due to the seemingly inconsequential right of the House of Commons to control its business. The right of any legislative chamber under the Westminster system to control its business has existed for so long that it must be regarded as an essential part of its procedure which inheres in the very notion of a legislative chamber under that system. If the Legislative Council wishes to conduct its business by asking questions of Ministers of the Crown present in that Chamber, I can see nothing in parliamentary history that would deny it that right. Indeed, the whole history of parliamentary procedure supports it. 1. A History of English Law, 2nd ed (1937), vol 6, p 100. 2. Holdsworth, A History of English Law, 2nd ed (1937), vol 6, p 99.
In this Court, the appellant seeks a declaration that pars 2 and 3 of the resolution of the Council are invalid. Although he made no complaint that the Court of Appeal had not dealt with par 3(b), I think that the proper course is to allow his appeal so that the Order of the Court of Appeal can be set aside. In the absence of a statutory requirement, a court should not entertain a claim for a declaration that a resolution of a House of Parliament is invalid. In the course of determining the legal rights of parties, it may be necessary for a court, as an incident of that determination, to hold that a resolution of a legislative chamber cannot affect a person's legal rights. But that is a different matter from directly entertaining a claim that a resolution of the chamber is invalid. No doubt there are cases - those arising under the federal Constitution for example - where a court is compelled to make a formal declaration concerning the internal affairs of a legislative chamber. But, as a general rule, courts should eschew making such declarations even when the validity of the resolution is incidental to the determination of a plaintiff's legal rights. I would allow the appeal so that the Order of the Court of Appeal can be set aside. In lieu thereof, I would declare that the Supreme Court has no jurisdiction to make the declaration sought.
I would also allow the appeal so that the declaration of trespass which the Court made can be set aside. That part of its Order declares that "[t]he defendants committed an actionable trespass to the person of the [appellant] by reason of the extent of his removal on 2 May 1996". With great respect to the learned judges of the Court of Appeal, that declaration is too imprecise. No doubt its intended meaning can be ascertained by reference to the reasons for judgment of the Court. But the meaning of orders which declare legal rights and duties and which can found an action for contempt should be clear on their face without the need to resort to other materials to understand their true effect. In any event, it is difficult to see what purpose this declaration serves. The appellant did not claim damages. Moreover, while the conduct which is relied on relates to events that are alleged to have occurred in Macquarie Street, it arises out of events which occurred in the Legislative Council. Respect for the procedures of the Council requires that a court should make declarations or entertain claims arising out of the business of the Council only when it is essential to declaring the existing rights of parties. If the appellant had claimed damages, the appropriate order would be reflected in a monetary sum, not a declaration. But he makes no such claim. In those circumstances, the declaration does nothing more than make a statement about a past event without it having any effect on the parties' legal rights. Since this Court must make the order which the Supreme Court should have made, in the exercise of our discretion, the claim for a declaration should be dismissed.
The appeal should be allowed in order to give effect to the orders that I think are appropriate. But since the appellant has failed on the substantial issue which he propounded, he should pay the costs of and incidental to the appeal. Furthermore, the costs orders made in the Court of Appeal should stand.
This appeal from the New South Wales Court of Appeal [179] concerns the powers, privileges and immunities (the privileges) of the Legislative Council (the Council) of the Parliament of the State of New South Wales. The questions presented for decision involve issues of high constitutional importance. It could scarcely be otherwise where the Court is asked to define the extent to which the Executive Government of a State is accountable to a democratically elected chamber of a Parliament and to the rule of law itself.
A Minister is suspended and removed from Parliament
The issues were tendered for decision as a consequence of the filing of a statement of claim in the Administrative Law Division of the Supreme Court of New South Wales. By this, the Honourable Michael Egan (the appellant) sought a declaration that the Honourable Max Willis (the first respondent) and Mr Warren Cahill (the second respondent) had committed an unlawful trespass upon his person [180] . The appellant was, and is, a Minister in the Executive Government of the State and Leader of the Government in the Council. At the relevant times, the Honourable Max Willis was the President of the Council. Mr Cahill was the Usher of the Black Rod, an officer of the Council.
Interpretation of the facts: The respondents did not dispute that the removal from the chamber to the public footpath was against the appellant's will. It was assumed from this fact, and from the manner in which the removal was effected, that unless justified in law the removal amounted to a trespass to the appellant's person. It was not in dispute that the sole purpose of the order of the Council was to coerce the appellant, a member of the House and a Minister, to produce the disputed documents. No suggestion was raised that the appellant did not have in his possession or under his control documents of the kind referred to in the successive resolutions [189] , nor that he was incapable of complying with the Council's demands, save for the suggested lack of power of the Council to make them [190] . It was accepted by those members of the Council who supported its resolution that the Council had no power to punish the appellant, eg by way of fine or imprisonment [191] . While what they did might, in law, be held to constitute punishment, it was not their objective. It was accepted for the appellant that the powers purportedly exerted against him rested on the fact that he was a member of the Council, present in the chamber. Different considerations might arise in respect of an absentee member and would arise in respect of a member of the other House of Parliament or a stranger. It was also accepted that there was no precedent for such a suspension of a member, Minister or otherwise, to coerce the tabling of documents. The appellant argued that this was significant given the 140 year history of the Council. For the respondents it was argued that this was so only because no other Minister had claimed, and insisted upon, such an absolute immunity from accountability to the Council.
Legal foundations: It was common ground that the Parliament of New South Wales, including the Council, was originally established by the Constitution Act 1855 Imp [192] by which New South Wales achieved responsible government. By that Act, the new legislature was given [193] "full Power and Authority to alter the Provisions or Laws for the Time being in force" under it. It was accepted that, from its statutory provenance and its constitutional history and functions, the Council did not, in law, inherit all of the privileges enjoyed by the House of Commons of the British Parliament. Nor were its privileges defined by statute, as they have been in the case of other Australian Parliaments [194] . For the Federal Parliament [195] and other State Parliaments [196] , express provision has been made in various ways to assimilate the privileges of the Commons House of Parliament of the United Kingdom. Such a formula could have been adopted by the Parliament of New South Wales, there being no legal impediment [197] . Despite various attempts, no such legislation has been enacted. The only Act of specific relevance in New South Wales was the Parliamentary Evidence Act 1901 NSW [198] . Its procedures, even if applicable to the appellant in the present controversy, were not invoked. In this way, it became common ground that there was no express power in the Constitution Act, or any statute enacted by the New South Wales Parliament or the Standing Orders, authorising the assertion by the Council of its right to demand the tabling by the appellant of the specified documents. Nor was there an express foundation for the resolution adjudging the appellant guilty of contempt and authorising the respondents to effect his removal from the precincts of the Council which followed. If a legal foundation for such conduct existed, it had to be found in the inherent or implied privileges belonging to the Council as a constituent part of the Parliament of New South Wales.
Functions of the Council: To ascertain whether the Council enjoyed the privileges which it had asserted and exercised against the appellant, both sides agreed that it was essential to define what the functions of the Council were. For the respondents, it was accepted that it was not sufficient, in order to establish an inherent power or to derive an implied one, that its existence would merely be conducive to the Council's functions, in the sense of convenient or advantageous. Relying on a line of authority in the Privy Council [199] , in this Court [200] and in the Full Court of the Supreme Court of New South Wales [201] , the Court of Appeal adopted as its criterion whether the privilege asserted was reasonably necessary for the existence of the body and the proper exercise of its functions [202] . In this Court, both sides accepted that criterion. However, each derived different conclusions from its application. Although the appellant accepted that the role of the Council included "participation in legislation" [203] , the potential ambit of that phrase was contested. It was not accepted, for example, that it extended to coercing a Minister or any other member, to table documents in his or her possession or control without express authority of law to make such demand [204] . To ascribe it to an "inherent" power or privilege of a chamber of a Parliament which had begun its days as a subordinate colonial legislature, was a distortion of the history of that Parliament. Thus, whilst the applicable principles were agreed, their application was hotly disputed.
Justiciability: No objection was taken by the principal parties on the ground that the dispute was not justiciable. On the contrary, the appellant initiated the proceedings, alleging trespass and seeking a declaration to that effect. The respondent joined issue, supplied additional material and invited the determination of the dispute by the Supreme Court. This was, indeed, the course suggested during the Parliamentary debates which led to the appellant's removal from the Council [205] . The Supreme Court thus had before it a claim which demanded a legal ruling as to the existence of the privilege upon which the Council relied to justify an otherwise unlawful invasion of the appellant's legal rights. In the absence of clear authority, that Court was obliged to adjudicate the issues thus tendered [206] . As no party suggested that the issues were not justiciable, and as, in a sense, the competing parties represented the Executive Government of the State and the Council requesting adjudication, no criticism can be addressed to the Court of Appeal for proceeding, as it did, to resolve, as justiciable, the dispute which was submitted to it.
Footpath and precinct point: As I have said, the respondents did not, in this Court, seek to challenge the ruling of the Court of Appeal that expulsion of the appellant to the public footpath exceeded the implied powers necessary for the protection of the functions of the Council and its performance as such. A point concerning the limits of the expulsion had been taken during the debate in the Council [207] . It was overruled by the first respondent. Questions were raised during argument as to whether "reasonable necessity" would extend, for the purpose of coercion, beyond the chamber of the Council into the "precinct" of the Parliamentary building, including ministerial officer and members' rooms. But as neither party sought to re-agitate this point, decided by the unanimous opinion of the Court of Appeal, I am content to leave it there.
That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any Court or place out of Parlyament.
There can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation. This power, deeply rooted in American and English institutions, is indeed co-extensive with the power to legislate. Without the power to investigate Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively. 1. Erskine May, Parliamentary Practice, 21st ed (1989), pp 213-214; cf Odgers' Australian Senate Practice, 7th ed (1995), p 51. 2. (1955) 349 US 155 at 160-161.
A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information - which not infrequently is true - recourse must be had to others who do possess it. 1. (1927) 273 US 135 at 175.
There would, indeed, be exceptions to the obligation of a member, including a Minister, to table documents demanded by a resolution of a chamber of Parliament. Such exceptions could arise on grounds of individual privacy, confidentiality (as for example papers disclosing Cabinet discussions [299] ) public interest immunity, as well as other grounds. At this stage of these proceedings it is unnecessary to say anything about such grounds of exemption. It is significant that in the long history of elected legislative chambers in Australia, an impasse such as the present, has usually been avoided by give and take on the part of the legislature demanding information and the Executive Government initially reluctant to give it.
The appellant argued that the risks of abuse and the catalogue of exceptions made it inappropriate to uphold, as an implied power, entitlements which were not spelt out in legislation where the checks and balances could be precisely drawn. Whilst that argument has some force, the necessity to uphold the legislative powers of a chamber of an Australian Parliament, and its functions to render accountable the Executive Government, present within it, is of great constitutional importance. History suggests that it might be unsafe to wait for comprehensive legislation on such matters. Meantime, the present case falls to be determined. The powers of the Council and its officers must be decided. It will primarily be for the Houses of a Parliament to avoid abuses of the principle established by this case. In extreme cases, abuse might invite judicial intervention. The principles governing claims for immunity or exemption from the obligation of a member, including a Minister, to produce documents demanded by a House of Parliament can await occasions when a claim to a specific exemption is made and refused. That point has not been reached in this case, given the stance adopted by the appellant.
On the footing that there has been no challenge in this Court to the determination by the Court of Appeal of the "footpath point", the declaration that the respondents committed an unlawful trespass to the person of the appellant in that regard will be sustained. I see no merit in the criticism that a declaration of trespass is an inappropriate remedy or that the declaration made was too wide, too imprecise or too divorced from the parties' legal disputes. No-one submitted that this was so in the otherwise comprehensive arguments received by the Court.
It is sufficient for this Court to dispose of the issues before it to hold, as I would, that no error occurred in the Court of Appeal's refusal to make the declaration sought by the appellant that the resolutions of the Council of 2 May 1996 were invalid. The appeal should be dismissed. The cost order in the Court of Appeal should not be disturbed. The appellant should pay the respondents' costs in this Court.
This is an appeal from a judgment of the Court of Appeal of New South Wales constituted by Gleeson CJ, Mahoney P and Priestley JA concerning the powers of the Legislative Council of New South Wales.
Towards the end of the hearing in this Court on 16 June 1998, the parties' attention was drawn to the possibility that issues notifiable to the State and Commonwealth Attorneys-General under s 78B of the Judiciary Act 1903 Cth may have been latent in the arguments addressed to the courts. Notices were then given and the matter was listed for further hearing on those issues.
The issues raised by the notices are as follows: whether either the text or structure of either the Commonwealth Constitution or the Australia Acts 1986, in so far as that Constitution or those Acts are relevant to the State of New South Wales: (a) renders no longer supportable the reasoning in Barton v Taylor [300] , and Willis and Christie v Perry [301] ; or (b) either gives rise or is relevant to: (i) a power in the New South Wales Legislative Council to require the appellant to produce to it the documents required by its resolutions dated 23 April 1996 and 1 May 1996; or (ii) the justiciability of disputed questions arising in relation to any purported exercise by the Council of such power.
As the High Court observed in R v Richards; Ex parte Fitzpatrick and Browne [307] , after a long period of controversy in England, it was established that disputes as to the existence of a power, privilege or immunity of a House of Parliament are justiciable in a court of law. The same principle applies in Australia. However, whilst it is for the courts to judge the existence in a House of Parliament of a privilege, if a privilege exists it is for the House to determine the occasion and the manner of its exercise. Hence the argument before us has been directed towards questions of power rather than factual issues going to the appropriateness of the exercise of such power, if it existed. On that common understanding, it was unnecessary to debate questions of justiciability which might otherwise have arisen. 1. Egan (1996) 40 NSWLR 650 at 653. 2. (1955) 92 CLR 157 at 162.
The Cabinet deliberates in secret; its proceedings are confidential. The Privy Councillor's oath imposes an obligation not to disclose information; and the Official Secrets Acts forbid the publication of Cabinet as well as other official documents. But the effective sanction is neither of these. The rule is, primarily, one of practice. Its theoretical basis is that a Cabinet decision is advice to the Queen, whose consent is necessary to its publication. Its practical foundation is the necessity of securing free discussion by which a compromise can be reached, without the risk of publicity for every statement made and every point given away. 1. 3rd ed (1959), p 267 (footnote omitted). See also Odgers' Australian Senate Practice, 8th ed (1997); Commonwealth Cabinet Handbook "Access to Cabinet Documents of Previous Governments", pars 9.32-9.35 and Professor Enid Campbell's chapter, Appearance of Officials as Witnesses Before Parliamentary Committees in Nethercote (ed), Parliament and Bureaucracy (1982), pp 179-226.
The power, therefore, of suspending a member guilty of obstruction or disorderly conduct during the continuance of any current sitting, is, in their Lordships' judgment, reasonably necessary for the proper exercise of the functions of any Legislative Assembly of this kind 1. (1886) 11 App Cas 197 at 204.
"Necessary" has, in the law, been used frequently to denote those things which are clearly adapted to the needs or the purposes of the body or function in question [322] . 1. Section 38A provides: "(1) Notwithstanding anything contained in this Act, any Minister of the Crown who is a member of the Legislative Assembly may at any time, with the consent of the Legislative Council, sit in the Legislative Council for the purpose only of explaining the provisions of any Bill relating to or connected with any department administered by him, and may take part in any debate or discussion in the Legislative Council on such Bill, but he shall not vote in the Legislative Council. (2) It shall not be lawful at any one time for more than one Minister of the Crown under the authority of this section to sit in the Legislative Council." 2. Egan (1996) 40 NSWLR 650 at 676. 3. See generally Water Board v Glambedakis (1992) 28 NSWLR 694 at 707.
it would be extraordinary if, having a matter before it for consideration, it could not do what was necessary to inform itself about it. It is accordingly within its power to obtain such information in various ways. Thus, it may cause a study to be made of matters which are before it to be dealt with. It may do this by Committees, by consultants and by the provision of information by members 1. Egan (1996) 40 NSWLR 650 at 677.
Whatever, in a reasonable sense, is necessary for these purposes, is impliedly granted whenever any such legislative body is established by competent authority. For these purposes, protective and self-defensive powers only, and not punitive, are necessary. 1. (1886) 11 App Cas 197 at 203.
Egan
Willis
(1997) 191 CLR 119
(1996) 40 NSWLR 650
(1955) 92 CLR 157
(1998) 194 CLR 247
(1995) 184 CLR 453
(1922) 31 CLR 421
(1960) 104 CLR 247
(1997) 189 CLR 520
(1912) 13 CLR 592
(1924) 35 CLR 69
(1909) 9 CLR 140
(1987) 163 CLR 117
(1993) 176 CLR 604
(1991) 171 CLR 635
(1994) 179 CLR 427
(1905) 2 CLR 509
(1969) 122 CLR 177
(1974) 131 CLR 203
(1975) 135 CLR 337
(1988) 166 CLR 1
(1940) 63 CLR 73
(1987) 8 NSWLR 116
(1988) 165 CLR 197
(1997) 71 ALJR 1604
(1991) 25 NSWLR 1
(1990) 20 NSWLR 188
(1991) 23 NSWLR 683
(1978) 142 CLR 1
(1986) 5 NSWLR 18
(1947) 74 CLR 31
(1911) 12 CLR 321
(1911) 12 CLR 667
(1954) 90 CLR 203
(1960) 105 CLR 214
(1974) 131 CLR 432
(1931) 44 CLR 394
(1932) 47 CLR 97
(1996) 186 CLR 140
(1917) 23 CLR 457
(1975) 134 CLR 201
(1991) 56 SASR 140
(1979) 143 CLR 1
(1987) 162 CLR 612
(1989) 168 CLR 1
(1991) 26 NSWLR 131
(1998) 195 CLR 337
(1995) 183 CLR 525
(1986) 161 CLR 98
(1992) 28 NSWLR 694
(1996) 189 CLR 51