The Law of Parliament: Limits on Judicial Power 12th October 2023

Our law requires the courts, from time to time, to adjudicate cases by express reference to “the public interest”, or an equivalent phrase. Not merely in relation to “the interests of justice”, or what is substantively fair or unfair, just or unjust. After all, those are aspects of an undoubted public interest, but confined to considerations called up by the administration of justice, usually in adversarial litigation. Much broader considerations, at a societal level, are engaged in familiar allocations to the judges of a duty and function to decide cases on the basis of their opinions of where the public interest lies, or how best it may be served. Familiar contexts include charities, anti-trust and defamation. Important aspects of constitutional law, such as the implied freedom of political communication, are couched in terms requiring judicial assessments of that element in, say, a proportionality analysis.

And, procedurally but very importantly, the public interest which is now the label of the immunity once called Crown Privilege (as to some of its scope), must be assessed by judges called on to decide whether to enforce an otherwise compulsory process for the production of certain kinds of information or evidence. The paradigm contest is raised by a resisted subpoena duces tecum, or an order for discovery, which are themselves self-evidently occasions requiring a court to decide matters of the public interest – being matters of disparate implications and varying weight.

But what if the forum in which the compulsion is exerted is not a court of law or a tribunal or administrative decision-maker supervised by the courts? The question this speech concerns focusses on the fraught occasions when a parliamentary chamber, a House, resolves to require a Member, who may also be a Minister, to produce to the House, for its use, documents or information that, in a court of law, would readily and plausibly be exempt from production on the ground of public interest immunity. The authorities, that is, the answers (if any) given by the judges, are inconclusive or unsatisfactory. The principles should not be inconclusive or unsatisfactory, the latter as a matter of definition.

Identifying those principles starts with the recognition, embraced by the courts, that all polities in our federation are, in general terms, systems of responsible government in a representative democracy. History, again well appreciated by the courts, shows that this happy political achievement has arrived for some of us at the State level, over more than one and a half centuries of colonial and national evolution. In large part, in relation to the powers of parliamentary chambers to compel State papers to be produced to them for their use, that evolution has proceeded in line with the content of democracy, that is the role of electors. Manhood (as opposed to property) suffrage, votes for women, reductions in age requirements, etc were when granted, and remain, powerful disincentives to government by a parliament of the few, the welloff, the well-connected, or coteries of both. And a clear trend to representatively equal electoral laws - such as a tolerable discrepancy, only, for voters or populations in electorates for lower house seats, and a single electorate for the upper house (where there is one, and with some qualifications)- renders the slogan of the government of the people by the people quite acceptable, for most purposes, as a description of the object of our constitutional arrangements. Hence the notion of a sovereign people.

Once we turn to the control of policy in such governments, as a rule the judges make no claim – rather, a virtue out of disclaiming any such supervision of policy and law-making by the elected chambers. Thus, the High Court has firmly rejected any capacity of the courts to second-guess parliaments as to the wisdom or justice of legislation by examining whether a statute can be seen as not one, say, for “the peace, welfare and good government of New South Wales in all cases whatsoever”, to quote our Constitution Act.¹ Succinctly, whether a proposed or enacted statute fits that description is concluded by the Members’ votes,
and the vice-regal advised consent. (Compliance with federal constitutional limits, in our federation importing the requirement of strict legalism and the rule of law, is of course a different matter.² We do not have anything like the currently contested Israeli
position so far as the judicial review of reasonableness or merits of statutes is concerned.)

The profound significance of these matters of public interest, for which parliaments are empowered to legislate, is in fact a reason in principle why the courts leave these political questions, as the Americans term the matter, to the governmental institution assigned the task, namely the legislature. That demarcation of function has sometimes been expressed as a kind of incapacity or unfitness of the courts to pronounce such judgments. We can probably discount the motive of judicial modesty as an explanation, with great respect: instead, there is a genuine acceptance that momentous public interest debates over tax, the environment, defence and education, and social welfare in all its guises, are committed to the judgements of legislators – and periodically the approval or disapproval of electors through their votes for parliamentary candidates.

Hand in hand with this legislative function comes the scrutiny function of parliamentary chambers. At its most basic form, consideration whether the current enacted laws are in need of improvement, and whether their administration should be enhanced by legislative reform, can sensibly proceed only if enquiries can be pursued by the parliamentarians on those topics. And the best evidence, often, will be the records of government administration. All this is trite.

A very recent decision of the US Court of Appeals for the District of Columbia Circuit in relation to a House of Representatives subpoena to Rep Scott Perry³ for cellphone records relating to the certification of the 2020 Presidential election results, and other matters, makes the point pungently. The particular constitutional⁴ doctrine does not map exactly with our corresponding rules, but a common source in Art 9 of the Bill of Rights of 1688-9, and a common parliamentary tradition – albeit without responsible government in our sense– do render these American approaches resonant with ours – for what that is worth. Justice Katsas, concurring, asked rhetorically whether a Member of Congress should bother to learn something about a bill before voting on it – “The question answers itself. Without information Congress would be shooting in the dark, unable to legislate ‘wisely or effectively’”.⁵

An unfortunate figurative firearms reference, but telling. The case concerned resistance on Article 9 grounds, in our parlance, in relation to what they call “informal fact-finding” by Congressmen, but the starting point is the same as for an enquiry into the principles governing the power of a parliamentary chamber to compel information for its use. “That is why each House has an implied power to subpoena witnesses or documents relevant to possible legislation.”⁶

Adapted to our system of responsible government, there is close concordance here with the Australian position, settled as a result of the conscientious refusal by Mr Egan , the Treasurer, and a Member of the Legislative Council, to produce State papers as required by an order of the House, in April-May 1996.

The stand was taken in compliance with a Cabinet decision itself based on Cabinet’s acceptance of advice from the Crown Law officers that such orders were invalid and beyond power. (Interestingly for the goal of this speech, that Cabinet record and the legal advice were published and available to the court⁷ – as well as the evidence of their own opinions by each of the senior counsel arguing the case, given to the Privileges Committee. A happy instance of arguing by submissions what one believed to be correct as a matter of opinion.)

The issue in Egan v Willis was undoubtedly one the law required the court to decide – whether the trespass to the person allegedly committed by the Usher of the Black Rod, in conducting a recalcitrant Michael Egan from the chamber of the Legislative Council, was rightly answered by the plea of justification. That is, that the removal was appropriate to give effect to a resolution of the House for the Treasurer’s suspension. In turn, that depended on an existence of power in the House, first, to order the member to produce specific papers and, second, to suspend him in order to coerce his compliance when he defied the order. Clearly, the matter was centred on the functions of the House, and the powers inherently or impliedly available given those functions.

The Government ultimately took the position that such a power of compulsory production of State papers was not reasonably necessary for the relevant functions of the House. Incidentally, but tellingly, the argument included the provocative assertion that the Government, that is the socalled Ministerial party, was responsible only to the lower, or popular, House – a continuing trope in the political science of bicameralism. The Government lost the main point: the Court recognised the scrutiny function of the Upper House notwithstanding that it was only, or mainly, the confidence of the Lower House that could make or break a government. Grandiose rhetoric such as the “grand inquest of the nation” was shamelessly plundered from a pre-democratic England to bolster the claims to central and supreme political control by the Houses.

Lest this speech degenerate further into a barrister’s war story, the separate but converging approaches of Gleeson CJ, Mahoney P and Priestley JA, may be summarized, albeit by sacrificing the formidable subtlety of their several reasonings. It didn’t matter that NSW did not have a House-of-Commons equivalency provision for the powers and privileges of its Parliamentary chambers, unlike the Commonwealth and other States. It did not matter that no Australian Parliament is a direct product of or arena for English lex et consuetudo parliamenti. It did not matter that Art 9 of the Bill of Rights⁸ in termsspoke of Westminster, not Macquarie Street. And it, particularly, did not matter that the Legislative Council, even post 1855, was a jarringly described “inferior legislature”, being a governmental organ of a mere colony, albeit said to be “self-governing”.

As the Chief Justice said, “A power to order the production of State papers, which is possessed by the House of Commons, the Australia Senate, and other State Houses of Parliament, is reasonably necessary for the proper exercise by the Legislative Council of its functions.” ⁹ His Honour’s reasons included that “the capacity of both Houses of Parliament, including the Houses less likely to be ‘controlled’ by the government, to scrutinize the workings of the executive government, by asking questions and demanding the production of State papers, is an important aspect of modern parliamentary democracy. It provides an essential safeguard against abuse of executive power”^.10 The foundation of this conclusion on a judicial perception of the public interest is palpable.

The same is true of the way in which Mahoney P regarded it as, generally speaking, “extraordinary if, having a matter before it for consideration, [the House] could not do what was necessary to inform itself about it”.¹¹ Importantly, his Honour explicitly relied on the greater availability of information than “in earlier times”, when perhaps considerations were confined to “the knowledge or the assumptions of its members”. Times had changed. To such an extent that “now”, “it is not merely convenient but necessary that the legislature have access to information of every kind relevant to the informed discharge of its functions.”¹² One notes the amplitude of “every kind relevant…”. Part of Mahoney P’s reasoning, central to the goal of this speech, is that among the functions of such a House is “the oversight of the activities of the Executive Government.”¹³

The exposition by Priestley JA of the basis for the implied power to compel governmental disclosure in this fashion drew on history as well as comparative experience. “This seems to me to be a necessary implication in light of the very broad reach of the legislative power of the legislature and what seems to me to be the imperative need for both the Legislative Assembly and the Legislative Council to have access (and ready access) to all facts and information which may be of help to them in considering three subjects: the way in which existing laws are operating; possible changes to existing laws; and the possible making of new laws. The first of these subjects clearly embraces the way in which the Executive Government is executing the laws.”¹⁴ Note the amplitude, again, of “all facts and information which may be of help…”.

One of the special features of Egan v Willis is the resort to the historical practice of the Legislative Council, as it evolved and changed, as a legitimate source of law to decide the defence of justification to the tort of trespass to the person. As Gleeson CJ noted, there was no enacted constitutional or other statutory regulation of the matter, not even a Houseof-Commons equivalency provision. “Depending upon the view that is taken of what responsible government, in the current circumstances, ought to involve, the answer may cause satisfaction or dissatisfaction. Since the dispute has been brought to a court of law, the question must be answered according to law.”¹⁵ Given this normative and public interest orientation of the problem, it is significant that the Chief Justice did not find the answer “in an appeal to political theory”. Rather, he and the other members of the Court of Appeal looked to a history that recorded “details of many occasions” of orders for papers in the Council, obeyed without demur in their great majority¹⁶ – until the Cabinet sent Michael Egan into the lists in 1996. Justice Mahoney saw the question, admittedly for the court, as directing attention to the necessity from parliamentary functions “from time to time and as the need arises”, alive to the possibility of “change as society changes”.¹⁷ Justice Priestley was firm in holding it to be “unthinkable to [answer the question] by reference to the conditions in New South Wales over 125 years before” ie when we achieved so-called self-government – restricted by eg the Colonial Laws Validity Act.18 The Court must look to the “present situation”.¹⁹ Noting the Australia Acts of 1986, the Chief Justice perceived another “stronger reason to insist upon a consideration of this issue unfettered by the habits of thought of a past age”^.20

The various reasons for the 1998 dismissal by the High Court of the former Treasurer’s appeal to it (argued the month after Gleeson CJ’s translation to be its Chief Justice) contain substantial common threads. As to historical practice, McHugh J noted its significance, and the novelty of its recent repudiations by the Cabinet.²¹ The joint reasons of Gaudron, Gummow and Hayne JJ perhaps invoke more political theory, or perhaps science, than would Gleeson CJ in the court below – hence the citations of JS Mill in the pivotal passage, for the purposes of the argument in this speech – that is the ascription to Parliament of “important functions to question and criticize government on behalf of the people” and that “to secure accountability of government activity is the very essence of responsible government”^.22 Their Honours also highlighted the significance of what “long practice since 1856” showed concerning what was reasonably necessary for the Council’s functions “at the time in question”, by reference to what “have come to be conventional practices established and maintained by the Legislative Council”.²³

In his foreword to Anne Twomey’s magisterial treatise on The Constitution of New South Wales, Keith Mason wrote by way of a general observation that “the published rules of engagement by combatants in public life reveal less about constitutional government than close study of working practices and mechanisms”.²⁴ Perhaps a recollection of the Court of Appeal argument in 1996 was part of the grounds for that observation…

Both hearings and judgements in Egan v Willis noted the possible future need to consider the availability of privileges or immunities to resist otherwise lawful orders for papers. That potential materialized in Egan v Chadwick, coming to a head, just a week after the High Court judgement in Egan v Willis, by a resolution adjudging the Treasurer (as he then was, before the election which intervened before the hearing of Egan v Chadwick) guilty of contempt for refusing to table certain ordered papers. By this time, in 1998, the Council had devised its own procedure for an independent arbiter, a silk or retired judge, to report on claims for privilege and the like. Sir Laurence Street was the first appointment, and in this 1998 case.

The enquiry addressed in this speech could be posed as, “Who decides on a claim of privilege or immunity in answer to the Legislative Council’s order for papers, the House or the Supreme Court?” Of course, if a tort claim had to be adjudicated, the Court has to decide all issues including, say, justification as in Egan v Willis itself. Even then, there could be a question whether the Court would look behind or beyond the judgement of the House, such as by adopting the independent arbiter’s report to it, by an appropriate resolution. That would, after all, be the Court recognising the House’s decision as to contempt as beyond the Court’s power to examine – as to which suggestion of an informing principle more below.

As it happened, Egan v Chadwick was decided after Parliament was prorogued, and a new government was elected. Mr Egan’s suspension to address his adjudged contempt was spent. Declaratory relief as to the so-called validity of the resolution that had done so was refused, with Spigelman CJ holding that, given that “[t]he relationship of the courts and parliament must be one of mutual respect… [t]his Court should not decide issues of this character unless it is compelled to do so in order to vindicate a legal right”^.25

The issue here is not whether the courts of law are the governmental organ that pronounces binding judgements of law – they are. Including when the privileges (including powers) of Parliament arise. As McHugh J put it in Egan v Willis, quoting Sir William Anson, since Stockdale v Hansard in 1839, “it is safe to say that the Courts have won the day”. Rather, the issue is how that delineation of function and allocation of final authority, between courts and parliamentary chambers, work when, as strikingly demonstrated in Egan v Willis, the courts look in large part to what the Houses do (and say about what they do), in order to rule on what they may do.

Chief Justice Spigelman aptly noted this quiddity of the task for the court in determining the functions and powers of a sui generis institution, of fundamental social and political importance, by his quotation from Sir Victor Windeyer, writing extracurially in 1957: “That the players should be making the rules as the game proceeds may seem strange. Yet this has been the course of much British constitutional history. It may well be inevitable if the organs of government are not to become atrophied; for definition can produce a rigor iuris, only one stage removed from rigor mortis.”²⁶

Things have changed, and radically. It would be impossible to conceive of a modern Australian parliamentary chamber without the power, or practice, to seek answers from Ministers about matters of policy and administration. Yet the House of Commons heard its first recognisable such enquiry– about a South Seas Bubble absconder - in 1721. It has been described as “a significant and, apparently, an unprecedented departure from normal practice”. Then silence for decades.²⁷ No change in enacted law worked the change. No permission was sought from or granted by the judges to make the change. And surely no court would be so impertinent as to question the lawfulness of Question Time. If Article 9 of the Bill of Rights has a paradigm application, it would be to prohibit any such impeachment or questioning of that aspect of proceedings, and speech, in Parliament. As noted recently in Crime and Corruption Commission v Carne in the High Court, such matters truly raise a large question, not reached in that case on the facts.²⁸

In short, leaving aside the question as to the role of the Court of Appeal in adjudicating the limit or extent of an undoubted power of the Legislative Council – the order for papers vindicated in Egan v Willis – we can add by way of detail that all three judges rejected the government’s argument that the chamber could not compel the production for its inspection and use, as the House saw fit, of documents whose contents would be protected in the courts, and elsewhere, by legal professional privilege. The argument accepted was that “the high constitutional relationship of political accountability” between Ministers and the Council prevented … any analogy with cases where courts considered claims of legal professional privilege – or indeed, in general terms, public interest immunity.²⁹

As to legal professional privilege – even the “counsels of the Crown” – the Chief Justice found the reasonable necessity because “access to legal advice on the basis of which the Executive acted, or purported to act… In many situations… will be relevant in order to make an informed assessment of the justification for the Executive decision.”³⁰ Justice Priestley explained in terms that support the principled approach that is the goal of this speech: “The legislature is entrusted with the carrying out of the fundamentally important task of reviewing, changing and adding to the statute law of the State. To carry out that task it must have the power to call for any information relevant to carrying out its task.” Note the amplitude of “any information relevant”.

Justice Priestley continued: “Possession of the power to compel production does not mean that the power will be exercised unless the House is convinced the exercise is necessary; if exercised, it does not follow that the House will do anything detrimental to the public interest; the House can take steps to prevent information becoming public if it is thought necessary in the public interest for it not to be publicly disclosed”.³¹

One can add that this rationale is not obviously inapplicable to Cabinet documents with public interest immunity, let alone to public interest immunity more generally. Indeed, the three judges all held by parity of reasoning that non-Cabinet public interest immunity no more limited the Council in its power to obtain official information than did legal professional privilege.

Which brings us to Cabinet documents. The difference of opinion in Egan v Chadwick is found only in that subset of documents that “directly or indirectly, reveal the deliberations of Cabinet”, as the Chief Justice put it.³² Importantly, all three judges therefore, for similar if not identical reasons, found the House’s power did extend to require production of Cabinet documents in the other sense of being documents before Cabinet, etc, rather than revealing its deliberations. That head of public interest immunity did not apply in the parliamentary accountability function.

Chief Justice Spigelman’s reasons for protecting documents revealing Cabinet deliberations is simply the supposed contradiction of “the collective responsibility of ministers”,³³ or so-called Cabinet solidarity. Because the House’s power “is itself, in significant degree derived from [the] doctrine [of ministerial responsibility, or responsible government]”,³⁴ such “an inconsistency or conflict constitutes a qualification on the power itself”. The whole passage in the judgment is, with great respect, characteristically elegant and forceful. Unhappily, the burden of this speech is to argue that it is radically wrong. That is, contrary to Spigelman CJ’s holding, the profound impact of modern Cabinet arrangements, including aspirational secrecy, should be seen as a matter well within the institutional competence, and indeed duty, of a House to consider when deciding whether to compel production to it for its use, as it sees fit, of documents revealing Cabinet deliberations.

An uncharacteristic error in the brief reasons of Meagher JA serves to point up a problem in the Chief Justice’s approach. “The Cabinet is the cornerstone of responsible government in NSW, and its documents are essential for its operation.”³⁵ The first proposition is a matter of practice, and not even interstitially in the New South Wales Constitution. Minority governments and informal coalitions will likely transform notions of solidarity. And so-called resignation of Ministers on matters of principle tends to reveal disagreements in Cabinet. The second proposition is of no moment. Documents are also essential for orderly obtaining of legal advice, or for tabling information in Cabinet- yet all the judges ruled those documents within the House’s power to compel. “That means their immunity from production is complete - no process can arise for the courts - or anyone else - balancing interests against each other…in the realms of Cabinet documents there is no room for holding that time will wither them”. The conclusion does not follow, and the assertions in explanation are simply wrong, and inexplicably contrary to the most obvious of High Court authority.

Justice Priestley, with respect, had nailed that matter in his reasoning for the inclusion of even the holy of holies within the House’s powers to compel, namely documents revealing Cabinet deliberations. In Commonwealth v Northern Land Council³⁶, in 1993, the High Court plainly envisaged, and ruled, that even that kind of document could be inspected and assessed by judges in deciding whether to uphold a claim of public interest immunity so as to deny such information for the purposes of the administration of justice in a matter before the courts. Not complete, not absolute, and certainly involving the striking of a balance. Not never, more hardly ever.

These points in refutation of the Egan v Chadwick majority outcome were sharply made in 2014 by Sir Anthony Mason, who firmly supported Justice Priestley’s approach: “If claims for privilege for such documents are not treated as conclusive in the courts, why should it be treated differently in Parliament?”³⁷

The proper functional analysis produces the outcome compellingly revealed by Justice Priestley: “… notwithstanding the great respect that must be paid to such incidents of responsible government, no legal right to absolute secrecy is given to any group of men and women in government, the possibility of accountability can never be kept out of mind, and this can only be to the benefit of the people of a truly representative democracy.”³⁸

Now Egan v Chadwick, in light of the passage of time and electoral fortunes, resulted in no orders being made as sought by Mr Egan. Technically, the difference of approaches to certain Cabinet documents did not explain one way or another the outcome of the case – hence, it has no authority as a matter of stare decisis. On that rather arid ground, the case should not be regarded as governing the position. Substantively, these elaborate obiter dicta should be seen as clearly favouring Justice Priestley’s resolution of the conflicting views.

Other obiter dicta, as they probably are, appear in the High Court in Egan v Willis, concerning Cabinet documents. Not being in contest in the case then, the issues were not determined. But note the approval by Gaudron, Gummow and Hayne JJ of the Canadian confinement of the courts’ intervention to being properly “only ‘at the initial jurisdictional level’,” lest judicial examination trump “‘the exclusive jurisdiction of the legislative body’”.³⁹ One may note as well that McHugh J, in holding that the question “whether a member is or is not obstructing the business of the House is a matter for the Council”, went on to refer to what would “ordinarily… be reasonably open to the Council to conclude” about that.⁴⁰ The hint at some kind of backstop, or threshold, check by the court was not pursued, given the issues in that case. Had it been, for the following reasons it should have been rebuffed.

The classical pronouncement of the courts’ role in relation to the powers of a parliamentary chamber was made to decide a case of a less than impressive exertion of the power to imprison for contempt - that is without any trial in a court of law. The distasteful convulsion seems overly precious to many of us nowadays. The owner of the Bankstown Observer, Mr Fitzpatrick, instructed a journalist/commentator Mr Browne, to “get stuck into” the Member for Reid, raising allegations of an immigration racket and consequential unfitness of the Member. It was just before the Labor Party split of 1955. For their troubles they were imprisoned for three months by resolution of the House of Representatives after hearings, of a sort, before its Privileges Committee in the House itself. Unpersuasively, most likely, Mr Browne protested the lack of a fair trial with references to Adolf Hitler and the Star Chamber.⁴¹

Those details of the actual case had been refined away, as happens, by the time the High Court delivered admirably prompt justice on 24th June, a fortnight after the custody had begun. Juniors for the unsuccessful prisoners included AF Mason and NM Stephen. Counsel for the respondent Commissioner of Police were not called on, and judgement appears not to have been reserved. Delivered by Chief Justice Dixon, as the judgement of the Court, it has usually been regarded as his work. The constantly cited holding is that “it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an the occasion and of the manner of its exercise”.⁴² Precedent, including with respect to colonial Victoria, was invoked to include within the privilege or power of committing for contempt, that of “judging itself of what is contempt”.⁴³

Regrettably, it may be thought, the law expounded by Dixon CJ pointedly permitted a general warrant, ie one which did not disclose any ground apart from the House’s adjudication of contempt, as an unexaminable answer to habeas corpus. (Mercifully, that aspect is now defunct, since the Parliamentary Privileges Act 1987 (Cth), sec 4, which probably renders those formerly unexaminable matters, fully justiciable.⁴⁴)

Returning to principle, one can see in the reasons of Fitzpatrick & Browne a convergence between the position reached in “the flexible Constitution of Great Britain” and that achieved by the Houseof-Commons equivalency provision in sec 49 of our federal Constitution - described as “a rigid federal Constitution”, with the courts as structurally the arbiters of limits on power. In particular, the High Court seems to regard as true in Australia that, in such a case, while it was “for the courts to judge of the existence of privileges”, “in the practical application of the privilege both upon questions of fact and upon questions as to whether the facts fell within the scope of the privilege, the resolution of the House and the warrant of the Speaker were conclusive”.⁴⁵

Note, “all questions of fact”, but also, and further, “whether the facts fell within the scope of the privilege”.

The Privy Council, alas, considered this case but happily refused leave - it was “one of great public importance” but the High Court’s “judgement is unimpeachable”.⁴⁶ The authority should not be regarded as being enhanced by that vestige of Empire.

So for an alleged contempt, not just what had been published in the Bankstown Observer, but also whether it was a contempt of Parliament, was for the House to determine, free from judicial supervision. That sounds as if the decision how far the House’s own perceptions of a matter, so serious as contempt, with the sanction as serious as the interference with the basal legal right to be free unless lawfully detained, was a matter for the House and not for the court.

For those who say it’s not only the existence but also the extent of a parliamentary privilege⁴⁷ which is for the courts to decide, as opposed to its exercise which is for the courts to decide, this reading of the locus classicus strongly suggests that vagueness of concept – “extent of a power”? – may conduce to error. Rather, the occasion for and manner of exercise is beyond judicial control.

It may, at the end of the day, come down to the familiar importance of selecting the right level of generality at which legal concepts are expressed for particular purposes. Here, the basal justification for the parliamentary power is the House’s need for all and anything, in the nature of State papers, which the House - not a court - considers possibly useful for their accountability functions.

Those are judgements about the broadest and most political sense of the public interest, apt to be shunned by courts of law as beyond their institutional competence, and liable to detract from the courts’ own existential requirement of impartiality. Imagine a court having to decide that a government’s Cabinet documents should not be produced to a House intent on exploring the substance of official explanations for a policy or administrative decision driven by that government. The huge risk of the court being embroiled in partisan conflict is obvious. And, one should ask, whence comes the court’s pretension that it knows better than the members of the House what they should have for their, not the judges’, allotted constitutional task?

In the recent District of Columbia decision, concerning topics of discussion to be protected by the US equivalents of Art 9 of the Bill of Rights as explicated here by section 16 of the Parliamentary Privileges Act, the judges rejected the notion that a court could “carve out from the privilege certain topics of discussion by labelling them merely incidental or by deeming them illegitimate” because “for courts to pick and choose the scope of the privilege based on a free-floating evaluation of the proper objects of congressional deliberation would threaten the Speech & Debate Clause’s essential protection of legislative independence”.⁴⁸

Of course the Houses are places of partisan politics. That supplies no reason for courts to step in by some imagined assumption of a pure and disinterested mode of governmental responsibility to elected legislators - any more than the periodic answering to electors involves any such unworldly standard. It is our elected representatives, high-minded or captious, wise or resentful, who need the information a Cabinet record may afford, not the judges by whom governments are held to account only by impartial, non-merits, judicial review, matter by matter.

And as to Cabinet’s place and character, we should not proceed as if changes in practice cannot alter them very largely. As to the so-called principle of solidarity, as a reason for non-disclosure, it has a morally dubious nature because its very intent, apparently, is to foster the false and fictitious notion that all members of Cabinet agree on everything. It is, to put it mildly, doubtful that conscious regard to the myth that this may true is a bulwark, or any other useful part, of the machinery of responsible government in a parliamentary democracy, nowadays.

Could the power argued for here, for Houses to compel production of records of Cabinet deliberations, be abused? Does the sun rise in the east? But here more than anywhere the limits of power are not to be described by imagining a legion of abuses. So much was observed in Egan v Willis.⁴⁹ We should leave these judgements, and sanctions, to the electors.

And apprehensions such as the case of Fitzpatrick & Browne rightly provokes⁵⁰ were, in fact, addressed by some Houses themselves, by ameliorative legislation.

Houses of Parliament are, it follows, empowered as they see fit, to compel even those documents that reveal Cabinet deliberations for the purposes of their scrutiny of government. It is unequivocally in the broad public interests that they are. Of course, the very nature of such documents, even more so than those subject to legal professional privilege, covered by confidentiality, or embarrassing in private personal details, will direct attention to means of avoiding or alleviating other detriments to the public interest – such as non-disclosure, as is de rigueur for matters of national security. We just have to trust our parliamentarians to act responsibly. And they are responsible to us.

I am conscious that much of what I have argued in this speech could well have been anathema to Sir Maurice. After all, famously, on 16th July 1975 he refused, as Solicitor-General, before the bar of the Senate, to comply with an order to reveal advice to the Government in relation to what became known as the Loans Affair. Sir Maurice declared that as a matter of law the counsels of the Crown are secret and he, as the 2nd Law Officer, could not do anything inconsistent with the privilege asserted by the Crown. In theory, he risked imprisonment. I like to think his calm, firm and always decent stance, then as ever, banished any such thought from even the most Jacobin of Senators.

As Professor Campbell commented apropos this clash of principles, “if it is in the interest of the public that the counsels of officials to their Ministers be treated as confidential, then it is surely in the public interest that confidentiality be preserved at all times and not simply when it pleases Ministers to do so”.⁵¹

I also like to think that Sir Maurice, with that chuckle of his, would appreciate that great scholar’s rather arch puncturing of Cabinet pretension. He was not one to cut corners when it came to principles such as secrecy. But he was also thoroughly at ease with the imperfect humanity for which constitutional law is but a servant, not a master. My memories of seeing and hearing him on his feet in Court by Lake Burley Griffin are some of the strongest – and most happy – impressions I retain of former colleagues at the Bar. I need not add to the universal praise of his learning, wit, charm and rigour as an advocate – and adviser. It is all hugely deserved. I will add my own experience, very junior, of Sir Maurice’s kindness, warmth and collegiality when he returned to the private Bar. How fortunate we were, who worked with him then. I miss him. BN

ENDNOTES

^{1 eg Durham Holdings v NSW (2001) 205 CLR 399 at 424-5 [55]; Kable v DPP (NSW) (1996) 189 CLR 51 at 66, 76; sec 5 Constitution Act 1902 (NSW)
2 eg Victoria v Commonwealth (1975) 134 CLR 81}

^{3 In re: Sealed Case, decided 5th September 2023
4 per Katsas J, concurring, at 2-3
5 Quoting Trump v Mazars USA 140 S Ct 2019, 2031 (2120), itself quoting McGrain v Daugherty 273 US 135, 175 (1927)
6 Katsas J at 3; see also Opinion of the Court per Rao J at 22 quoting Eastland v US Servicemen’s Fund 421 US 491, 504 itself quoting the same passage in McGrain v Daugherty
7 Egan v Willis (1996) 40 NSWLR 650 at 687 C-D
8 given force by the Imperial Acts Application Act 1969 (NSW)
9 Egan v Willis at 40 NSWLR 664 F-G
10 Egan v Willis at 40 NSWLR 665 D-G
11 Egan v Willis at 40 NSWLR 677 B-C
12 Egan v Willis at 40 NSWLR 677 C-E
13 Egan v Willis at 40 NSWLR 677 B
14 Egan v Willis at 40 NSWLR 692F-693A}

^{15 Egan v Willis at 40 NSWLR 661 A-B
16 Egan v Willis at 40 NSWLR 654G
17 Egan v Willis at 40 NSWLR 676H-677A
18 Egan v Willis at 40 NSWLR 691E-F
19 Egan v Willis at 40 NSWLR 692B
20 Egan v Willis at 40 NSWLR 664F
21 Egan v Willis (1998) 195 CLR 424 at 477-8 [106]
22 Egan v Willis at 195 CLR 451[42]
23 Egan v Willis at 195 CLR 454[50]
24 Anne Twomey, The Constitution of New South Wales (2004), at v
25 Egan v Chadwick (1999) 46 NSWLR 563 at 579[90]
26 cited in Egan v Chadwick at 46 NSWLR 570 [31
27 Patrick Howarth, Questions in the House 1956, 14-5 and see also 6,7; see also McHugh J in Egan v Willis at 195 CLR 477-8 [105], [106]
28 per Gordon and Edelman JJ at [2023] HCA 28 [105]-[117]
29 Egan v Chadwick at 46 NSWLR 577 [80]}

^{30 Egan v Chadwick at 46 NSWLR 578 [86]
31 Egan v Chadwick at 46 NSWLR 593-4 [139]
32 Egan v Chadwick at 46 NSWLR 576 [71]
33 Egan v Chadwick at 46 NSWLR 576 [71]
34 Egan v Chadwick at 46 NSWLR 574 [55]
35 Egan v Chadwick at 46 NSWLR 597 [154]
36 176 CLR 604
37 see citations in New South Wales Legislative Council Practice 2nd ed at 710-11
38 Egan v Chadwick at 46 NSWLR 595 [143], emphasis in original
39 Egan v Willis at 195 CLR 446 [27] and see also at 452 [43], 466-7 [78], [79]
40 Egan v Willis at 195 CLR 479 [108]
41 See generally Harry Evans “Fitzpatrick v Browne: Imprisonment by Australian House of Parliament” in Lee & Winterton Constitutional Landmarks 2003 at 145 ff}

^{42 R v Richards; ex parte Fitzpatrick & Brown (1955) 92 CLR 157 at 162
43 R v Richards; ex parte Fitzpatrick & Brown (1955) 92 CLR 157 at 163
44 But query whether a warrant sufficiently asserting sec 4 grounds is thereby open to simple judicial contradiction, as opposed to interpretation.
45 Fitzpatrick & Browne at 92 CLR 166, 165
46 92 CLR 171 at 172
47 Mahoney P – Egan v Willis 40 NSWLR 675E
48 In re: Sealed Case at 29
49 per Mahoney P 40 NSWLR 680 C-D; Kirby J 195 CLR 508 [162]
50 Egan v Willis 40 NSWLR 675D
51 Enid Campbell “Parliament and the Executors”, Zines Commentaries on the Australian Constitution 1977 at 110, and Enid Campbell Parliamentary Privilege 2003 at 157-160}