Egan v Willis

[1998] HCA 71

High Court of Australia|1998-11-19|Before: Callinan JJ, Hayne JJ, Gleeson CJ, Mahoney P, Priestley JA

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At a glance

Source facts

Court

High Court of Australia

Decision date

1998-11-19

Before

Callinan JJ, Hayne JJ, Gleeson CJ, Mahoney P, Priestley JA

Source

Original judgment source is linked above.

Judgment (350 paragraphs)

[1]

High Court of Australia Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ Egan v Willis [1998] HCA 71

[2]

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.

[3]

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.

[115]

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.

[220]

Egan v Willis and Cahill (1996) 40 NSWLR 650 at 655, 671, per Gleeson CJ. 2. Egan v Willis and Cahill (1996) 40 NSWLR 650 at 670-671, per Gleeson CJ. 3. Egan v Willis and Cahill (1996) 40 NSWLR 650 at 671, per Gleeson CJ. 4. 18 and 19 Vic, c 54. The curious history of the adoption of the Constitution is told by Priestley JA in Egan v Willis and Cahill (1996) 40 NSWLR 650 at 690-691. See now also Constitution Act 1902 NSW. 5. Constitution Act 1855 Imp, s 36. 6. Except to a lesser extent in Tasmania. The position of the Legislative Assemblies of the Northern Territory, the Australian Capital Territory and the other Territories of the Commonwealth was not examined. 7. Australian Constitution, s 49. 8. Constitution Act 1975 Vic, s 19; Constitution Act 1934 SA, s 38; Parliamentary Privileges Act 1891 WA, s 12. See also Constitution Act 1867 Q, s 40A (inserted 1978) and Parliamentary Privileges Act 1858 Tas, s 17. 9. Egan v Willis and Cahill (1996) 40 NSWLR 650 at 660, per Gleeson CJ. 10. The Act was originally enacted in 1881. 11. Kielley v Carson (1842) 4 Moo PC 63 at 92 [13 ER 225 at 236]; Fenton v Hampton (1858) 11 Moo PC 347 [14 ER 727]; Doyle v Falconer (1866) LR 1 PC 328; Barton v Taylor (1886) 11 App Cas 197. 12. Willis and Christie v Perry (1912) 13 CLR 592 at 597; R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 162, 166. 13. Armstrong v Budd (1969) 71 SR (NSW) 386 at 391-394, 395, 403, 406. 14. Egan v Willis and Cahill (1996) 40 NSWLR 650 at 664-665, per Gleeson CJ; at 676-677, per Mahoney P; at 687-692, per Priestley JA. 15. Constitution Act 1902 NSW, ss 5A, 5B. 16. Although it was accepted that the Council had functions in filling casual vacancies both of the New South Wales Parliament (Constitution Act 1902 NSW, s 22D) and of the Federal Parliament (Constitution Act 1902 NSW, s 15), any implied right to secure documentary information about such candidates would be strictly limited to that issue. According to the appellant, to infer a more general implied right to obtain documents was not reasonably necessary. 17. New South Wales Parliamentary Debates (Council) 13 November 1995, p 2996; 1 May 1996, p 585. 18. Stockdale v Hansard (1839) 9 Ad & E 1 [112 ER 1112]. 19. New South Wales Parliamentary Debates (Council) 2 May 1996, p 713.

[249]

There is a further reason, in Australia, for dismissing the argument of non-justiciability. Courts in this country, at least in the scrutiny of the requirements of the Australian Constitution, have generally rejected the notion that they are forbidden by considerations of parliamentary privilege, or of the ancient common law of Parliament, from adjudging the validity of parliamentary conduct where this must be measured against the requirements of the Constitution [238] . Whilst it is true that Australian courts will ordinarily permit parliamentary procedures to be completed [239] before they intervene, the power of intervention by the courts cannot be seriously doubted. It is the nature of a federal polity that it constantly renders the organs of government, federal and State, accountable to a constitutional standard. State Parliaments in Australia, whatever their historical provenance, are not colonial legislatures. They are provided for in the Australian Constitution [240] . To this extent, at least, they are rendered accountable to the constitutional text. Notions of unreviewable parliamentary privilege and unaccountable determination of the boundaries of that privilege which may have been apt for the sovereign British Parliament must, in the Australian context, be adapted to the entitlement to constitutional review. Federation cultivates the habit of mind which accompanies constitutional superintendence by the courts. Courts recognise a large measure of power in, say, the chamber of a State Parliament, to define and enforce its notions of its own privileges. But the Australian constitutional context does not accord to such a body a completely unreviewable entitlement, in law, to define and enforce its own powers. Any such powers can only be exercised in conformity with the political and judicial system which the Constitution creates. Decisions of other countries and from other times therefore need to be adapted in the modern Australian context when it is suggested that they apply to the privileges of a House of Parliament of an Australian State [241] . I would acknowledge no lesser scrutiny by the Court of the lawfulness of a claim of privilege by a chamber of the New South Wales Parliament than that accepted in R v Richards; Ex parte Fitzpatrick and Browne [242] in relation to the Federal Parliament which arguably enjoys larger powers and broader immunities by virtue of the text of the Constitution [243] .

[250]

[1995] 1 AC 321 at 337. 2. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335. 3. cf Melbourne Corporation v The Commonwealth (the State Banking Case) (1947) 74 CLR 31 at 82. 4. cf Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335. 5. cf R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 166. In refusing a grant of special leave, the Privy Council observed that the judgment of this Court was "unimpeachable". See at 171-172. 6. Kielley v Carson (1842) 4 Moo PC 63 [13 ER 225]; Fenton v Hampton (1858) 11 Moo PC 347 [14 ER 727]; Doyle v Falconer (1866) LR 1 PC 328; Barton v Taylor (1886) 11 App Cas 197; Willis and Christie v Perry (1912) 13 CLR 592. 7. Kielley (Newfoundland) and Doyle (Dominica). 8. Fenton (Van Diemen's Land); Barton and Willis (NSW). 9. R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 167 [" there has been a tendency to regard those powers as not strictly judicial but as belonging to the legislature, rather as something essential or, at any rate, proper for its protection" (emphasis added)]. 10. Kielley v Carson (1842) 4 Moo PC 63 [13 ER 225]; Fenton v Hampton (1858) 11 Moo PC 347 [14 ER 727]; Doyle v Falconer (1866) LR 1 PC 328; Barton v Taylor (1886) 11 App Cas 197; Willis and Christie v Perry (1912) 13 CLR 592. 11. Osborne v The Commonwealth (1911) 12 CLR 321 at 336; South Australia v Victoria (1911) 12 CLR 667 at 674-675; Hughes and Vale Pty Ltd v Gair (1954) 90 CLR 203 at 204-205; Clayton v Heffron (1960) 105 CLR 214 at 234-235; Cormack v Cope (1974) 131 CLR 432 at 451-454, 464-466, 467, 472; Eastgate v Rozzoli (1990) 20 NSWLR 188 at 193-198. 12. Cormack v Cope (1974) 131 CLR 432; cf Trethowan v Peden (1930) 31 SR (NSW) 183; (1931) 44 CLR 394; Attorney-General (NSW) v Trethowan (1932) 47 CLR 97 (PC); [1932] AC 526. 13. Australian Constitution, ss 9, 15, 107, 108, 123, 124. 14. Despite the equivalent to Art 9 of the Bill of Rights in the United States Constitution, it was not suggested that the Supreme Court not determine where the limit of privilege lay. See Quinn v United States (1955) 349 US 155. As to the position in India see The President's Reference No 1 of 1964 (1965) 1 SCR 413 (SC India); and criticism in Seervai, Constitutional Law of India, 4th ed (1993), vol 2, pp 2169-2196. 15. (1955) 92 CLR 157. 16. Australian Constitution, s 49. See also now Parliamentary Privileges Act 1987 Cth, s 16.

[273]

Council's legislative function: The appellant argued that the Court of Appeal had misunderstood the legislative functions of the Council. Of necessity, he had to concede that it had a legislative function. Its name and history require that concession. However, the appellant suggested that such function was limited to "participating in legislation". As presented, this conception of the Council's legislative function appeared highly circumscribed. It was the appellant's case that the mistake which had arisen in relation to the power of the Council, in support of its legislative function, to require a member to table official documents derived from an erroneous assimilation of the Council's powers to those of the British House of Commons. This, it was submitted, was inappropriate by reason of the lack of an assimilative statute. It was also inappropriate given the history of the Council and the legal limitations on its powers. Those limitations could be seen most clearly in s 5A of the Constitution Act 1902 NSW. That section permits any Bill appropriating revenue for the annual services of government which has been rejected or amended by the Council to be presented to the Governor, although the Council has not approved it. The provision and the requirement that appropriation bills should originate in the Legislative Assembly [267] were said to demonstrate the constitutional limits placed on the Council so as to make the importation of implied powers from British Parliamentary practice quite unsafe. It was conceded that the prevention of disorderly conduct by the suspension of a member of the Council would be within the implied powers of a body such as the Council. But, it was submitted that the failure of a Minister to comply with a demand that official documents be tabled, was of a different character. If such an obligation were to be imposed, it would need statutory authority. In any case it was pointed out that there was no suggestion that the demand for the papers in the present matter was incidental to any legislative measure before the Council or pending when the demand was made.