Arena v Nader

[1997] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S111 of 1997

B e t w e e n-

FRANCA ARENA

Applicant

and

THE HON. JOHN ANTHONY NADER, RFD, QC

First Respondent

THE STATE OF NEW SOUTH WALES

Second Respondent

Application for a stay

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 OCTOBER 1997, AT 4.04 PM

Copyright in the High Court of Australia

MR R.J. BURBIDGE, QC:   May it please, your Honour, I appear with my learned friends, MR P.T. TAYLOR and MR S.J. GAGELER, for the applicant (instructed by McCabes)

MR L.S. KATZ, QC, Solicitor-General for the State of New South Wales:   If your Honour pleases, I appear for the second defendant with my learned friend, MR M.J. LEEMING.  (instructed by the Crown Solicitor for New South Wales)

MR M.F. ADAMS, QC:   Your Honour, I appear for the first defendant, for the purpose only of a submitting appearance.  (instructed by the Crown Solicitor for New South Wales)

MR M.J. NEIL, QC:   May it please your Honour, I appear to seek leave to intervene on behalf of Mr Collins, with my learned friend, MS A.BOWNE.  (instructed by Allen Allen & Hemsley)

MR J.M. McCARTHY, QC:   May it please your Honour, I appear with my learned friend, MR P.M. SKINNER, for the Premier of New South Wales, Mr Carr, seeking to intervene.  (instructed by McClellands)

MR B. WALKER, SC:   May it please, your Honour, I appear with my learned friend, MR R. LANCASTER, to seek leave to be heard in relation to an undertaking as to damages and balance of convenience in terms of any interlocutory injunction.  (instructed by Greaves Wannan & Williams)

HIS HONOUR:   On behalf of - - -?

MR WALKER:   On behalf of Justice Wood.

HIS HONOUR:   Yes, thank you, Mr Walker.  Yes, Mr Burbidge.

MR BURBIDGE:   Thank you, your Honour.  May I inquire?  Does your Honour have the variety of papers which have been sent up during the course of the morning?

HIS HONOUR:   What I have is I have a copy of the judgment of the Court of Appeal, the application for special leave to appeal and the summons on which, I presume, you intend to proceed, with a supporting affidavit and a copy of the Special Commissions of Inquiry Amendment Act 1997.

MR BURBIDGE:   Thank you, your Honour.  Your Honour, could I indicate that we seek to proceed in respect of the summons.  Your Honour would see that we seek two orders; the second relating to the abridgment of time and the substantive order sought by paragraph 1 of the summons seeks that:

The Hon. John Anthony Nader RJD QC be restrained from proceeding with the Special Commission Inquiry pending the determination of the Applicant’s Application for Special Leave in the High Court of Australia.

HIS HONOUR:   Now, Mr Solicitor, do you have any objection to the abridgment of time?

MR KATZ:   No, your Honour.

HIS HONOUR:   What is your attitude to the application generally.

MR KATZ:   We oppose it.

HIS HONOUR:   You oppose it, yes.  Yes, Mr Burbidge.

MR BURBIDGE:   Thank you, your Honour.  Your Honour, the circumstances in which the matter comes before your Honour, briefly, are these:  that a speech was made by the Honourable Franca Arena in the Legislative Council of New South Wales on the 17th, I think, of September last; that approximately one week thereafter legislation was introduced and passed through both Houses of Parliament, the effect of that legislation being to amend the Special Commissions of Inquiry Act 1983, New South Wales by, relevantly, the addition of a Part4A. Without taking your Honour to it in detail, the broad effect of that new part was to provide for circumstances in which a House may, by resolution, determine to waive parliamentary privilege for the purpose of permitting an inquiry ‑ in connection with the setting up of an inquiry under the 1983 Act. It is, of course, rather more complex than that but that, I think, suffices for our immediate purposes. Thereafter, your Honour, there was in fact a resolution - - -

HIS HONOUR:   I have read the judgment in the court below.  I cannot say I have digested it all but I am familiar with the general nature of what is in there, if that is any help to you, Mr Burbidge.

MR BURBIDGE:   If your Honour pleases.  Your Honour, the situation, so far as today’s proceedings are concerned, turns on the proposition that following the dismissal of the applications for declaration and injunction made by the plaintiff before the Court of Appeal, the matter is presently the subject of an injunction restraining the first defendant from proceeding, which injunction will expire today.  The present situation is that the Special Commission of Inquiry proposes to resume on Monday next, the 13th instant.

It is contended, your Honour, that the effect of permitting the inquiry to commence and to take evidence as is proposed would be to destroy the parliamentary privilege which lies at the heart of the argument over which we are engaged.  The proposition which is advanced in broad terms, your Honour, is that the legislation which purports to empower the Upper House to resolve and declare is invalid for a variety of reasons and the effect of it, so it is submitted, is that were the matter to proceed, that is, the inquiry to proceed on Monday next, the effect of that would be to destroy the parliamentary privilege of the applicant.  It is not in contention that - - -

HIS HONOUR:   To destroy the parliamentary privilege of the applicant?

MR BURBIDGE:   Of the applicant, your Honour, yes.

HIS HONOUR:   That is the personal privilege?

MR BURBIDGE:   Yes.  Well, yes, her parliamentary privilege.  It is not in contest that that which she said was in fact at the time protected by parliamentary privilege.  That matter is not in issue in any way.  Accordingly, what it is said is that the legislation has a retrospective effect such that the parliamentary privilege of the House may be waived in a particular way, namely, by resolution, and that, of course, is what the House has purported to do.  The legislation itself, under section 33D(3) speaks of a privilege attaching to the Member.  Could I perhaps invite your Honour’s attention to the legislation briefly?  It is set out in the judgment of the Court of Appeal, if that is a convenient place to find it, your Honour.

HIS HONOUR:   I am looking at the copy I have of the Act at the moment, of the Amendment Act.  It does not much matter.  Section 33D(3)

MR BURBIDGE:   Section 33D(3) reads as follows - perhaps I could take your Honour first to 33D(1):

A House of Parliament that passes a resolution under section 33B.....may,.....declare that parliamentary privilege is waived in connection with the Special Commission to such extent as is specified in the declaration.

If I could then take your Honour to section 33D(3).  It reads:

However, a declaration by a House of Parliament under this section waiving parliamentary privilege:

(a)  does not operate to waive parliamentary privilege to the extent that it can be asserted by a member of either House of Parliament in relation to anything said or done by the member in parliamentary proceedings -

and perhaps, for completeness, I will read on:

but

(b)  operates to authorise the member to give evidence.....if the member chooses to do so -

So that what one has, your Honour, at the moment, is a declaration by the Upper House purporting to waive the parliamentary privilege of the Parliament so far as the special commission in question is concerned and, indeed, repeating the words at the end of subsection (1), to such extent as is necessary to enable inquiry and report, I think is the phrase.

Against that, one has the proposition that the declaration does not operate to waive parliamentary privilege to the extent that it can be asserted by the Member.  Now, in this case, your Honour, the applicant has not waived - - -

HIS HONOUR:   What are the terms of the resolution of the House?

MR BURBIDGE:   The resolution, your Honour, is to be found in material which is before your Honour.  I am reminded.  It is page 6, your Honour, of the judgment. Your Honour would see, towards the foot of that page, that the terms of the resolution were that:

this House resolves under s 33B of the [1983 Act]

Special Commissions of Inquiry Act -

to authorise the Governor to issue a commission under section 4 of the Act authorising or requiring a Commissioner.....to inquire into and report to the Governor and this House on the following matters relating to parliamentary proceedings within or before this House as specified below:

Then follow two references, as it were:

(1)  Claims made by Mrs Arena in the Legislative Council on 17 September 1997 to the effect that:

and then follow what purport to be the effects of statements made by the applicant in the House.  Reference to:

(2)  Whether Mrs Arena had any evidence to support these claims which she made under parliamentary privilege.

That, your Honour, is the effective resolution.  The House in fact did go on to make a declaration of the kind envisaged by 33D(1) and that, too, appears at page 7:

That this House further resolves to declare under section 33D of the Act that parliamentary privilege is waived in relation to any parliamentary proceedings relevant to the conduct of the Special Commission of Inquiry, and in particular in relation to the speech.....to the extent necessary to allow the conduct of the inquiry and the report thereon.

Now, in those circumstances, your Honour, the matter came before - well, in chronological terms, the plaintiff sought injunctive relief and declarations relating to the invalidity of the matter on, I think, 2 October.  On 3 October there was a formal opening of the inquiry with leave to appear and so on and in the course of that the plaintiff indicated that, appearing as a matter of courtesy to advise, the matter was before the Supreme Court in the sense that the application had been made and suggested the appropriate course may be for the Commissioner to await the outcome of those proceedings.

The Commissioner took the view that it was not appropriate to follow that course and that he should proceed unless restrained.  In those circumstances, application was made later on 3 October which was, of course, last Friday, to the Chief Judge in Equity and, after hearing the interlocutory application, his Honour declined to give relief in the terms sought but injuncted the Commission from proceeding until the end of the day on the following Tuesday being, of course, a long weekend.

HIS HONOUR:   Now, you know the general principles which have governed the granting of any relief of the kind that you are now seeking from this Court?

MR BURBIDGE:   Yes, your Honour.

HIS HONOUR:   There is, of course, an application for special leave.  It is not a question simply of an appeal from a decision of the Court of Appeal.  So, there are two matters that you have to address, are there not?

MR BURBIDGE:   Yes, your Honour.

HIS HONOUR:   One is the prospects of being granted special leave and, secondly, there is the question of convenience. 

MR BURBIDGE:   Your Honour, so far as the first matter is concerned, could I indicate that I rely upon the affidavit in support of the summons.  That of Peter Andrew Karp sworn today.  I think I need not trouble your Honour with the first four paragraphs.  Paragraph 5 records:

In my opinion, the Application for Special Leave to appeal has good prospects of success because:

(a)  The matter involves questions of public importance, namely,

(i) Whether Section 106 of the Commonwealth Constitution prevents a provision in a State Constitution from being retrospectively altered - - -

HIS HONOUR:   Just pausing there.  What is the retrospective alteration that you say exists?

MR BURBIDGE:   If your Honour would turn to section 33G of what I will term the new legislation.  It is referred to at page 6 - set out at page 6.  Your Honour would see that the legislation provides that Part 4A:

has effect despite any other Act, any Imperial Act or any other law.

and that:

This Part extends to parliamentary proceedings occurring before the commencement of this Part.

which is subsection (5).  It is not in question, your Honour, that what is intended by the inquiry is to inquire into the statement of the plaintiff made on the 17th, ie, before the Act was passed.  It is - - -

HIS HONOUR:   But the waiver operates only in futuro, does it not?

MR BURBIDGE:   Well, it cannot with - well, not according to the argument as presented, your Honour, no.  We would understand that the proposition - - -

HIS HONOUR:   You had better re-present it.

MR BURBIDGE:   The proposition that is advanced against us, your Honour, is that the effect of 33G(5) is to permit the House to waive that parliamentary privilege which in fact existed, and is conceded to have existed, on 17 September at any time after the passage of the legislation on, I think, 23 or 24 September.

HIS HONOUR:   I see.  So, that is the retrospective nature?

MR BURBIDGE:   That is, yes.  It is that which we seek to resist.  Subparagraph (ii) of paragraph 5:

whether the manner and form provisions in S 7A(1) of the Constitution Act 1902 (NSW) requiring a Referendum before the powers of the Legislative Council are altered, apply only to provisions reducing the legislative power of the Council;

Now, could I just perhaps direct your Honour to the passage in the judgment which deals with that matter.  It is to be found at page 17 of their Honours’ joint judgment in these terms - - -

HIS HONOUR:   Do you have a copy of section 7A there.

MR BURBIDGE:   The previous page, I think, your Honour, sets it out. Perhaps if I could turn back to page 16. Section 7A(1) of the Constitution Act provides:

The Legislative Council shall not be abolished or dissolved, nor shall

(a) its powers be altered;

I should also read (b), your Honour, since that was part of the submissions. 

(b)  section 11A, Division 2 of Part 3 (sections 22G, 22H, 22I and 22J excepted), the Sixth Schedule or this section be expressly or impliedly repealed or amended;
.....
except in the manner provided by this section.

Of course, the section provides that it be dealt with by way of referendum.

The argument on behalf of the plaintiff, your Honour, was that what had occurred was an alteration of the powers of the Legislative Council within the meaning of 7A(1)(a) and the particular matter to which attention was directed was the proposition that the legislation granted to the Legislative Council the power to waive, by resolution, the effect of Article 9 of the Bill of Rights, 1688.  In other words, by resolution, the House was empowered to waive parliamentary privilege.

Now, their Honours dealt with the matter at page 17.  It was not in contest, I should tell your Honour, that that exercise amounted to the grant of a power.  In other words, it was conceded that no such power previously existed.  I read their Honours’ judgment:

As to “powers” it was submitted that the word in its context was directed to the powers of the Legislative Council in its law making function as one of the three parts of the Legislature.  (We note that the Legislature is defined......  We also note that the Legislative Council’s powers also include the power of disallowance under the Interpretation Act.) 

We agree with this submission. Although we think the 1997 Act clearly enlarges the scope of what a House of Parliament may do in dealing with questions of parliamentary privilege, we do not think that this produces any enlargement or alteration to the powers of either House for the purpose of s 7A. In our view, the power spoken of in section 7A(1)(a) are the powers of the Legislative Council as part of the Legislature and which relate to the Legislature’s law making function.

The second principal argument -

These, of course, were those of the learned Solicitor-General -

was that the meaning of “altered” should be approached in the light of the history of s 7A. Section 7A(1) itself clearly shows the purpose of its enactment in 1929: to prevent the abolition or dissolution of the Legislative Council except by the procedure laid down in the section. What the section ruled out was the possibility of the Council abolishing itself by the votes of its members. Hence the primary words of subs (1) that the Council was not to be “abolished or dissolved ... except in the manner provided ...”. Paragraph (a) to (d) of subs (1) introduced safeguards to prevent any whittling away of the functions of the Legislative Council as a member of the Legislature.

In this general context it seems to us that para (a) s 7A(1) should be given a purposive construction as one part of the legislative scheme directed to preventing the lessening of the Legislative Council’s powers except in the manner provided by the section and that it is speaking of an alteration of powers by their diminution or limitation. In our opinion the 1997 Act is not directed to any such end nor does it bring about an alteration of the powers of the Legislative Council in the sense in which “alteration” is used in par (a).

Subsection (iii) of paragraph 5 of the affidavit, your Honour, records:

whether a member of Parliament is entitled to assert, by reason of parliamentary privilege, that her statements made in Parliament may not be questioned in any Court or Tribunal out of Parliament.

That matter is dealt with, your Honour, in their Honours’ judgment at page 18.  Perhaps I can simply read the judgment.  In the centre of the page:

It was submitted for the plaintiff that although a resolution under s 33B and a declaration under subs (1) of s 33D waived parliamentary privilege in connection with a Special Commission, nevertheless, subs (3) of that section had the effect of cancelling this waiver, unless the member chose to give evidence to the Special Commission pursuant to subs 3(b).

If I could stop there for a moment, your Honour.  The essence of the proposition, if your Honour would be kind enough to look at the legislation again, is that “parliamentary privilege” is defined - I do not need to take your Honour to it for the moment - but 33D(1), as your Honour sees, purports to deal with “the power of a House by resolution to waive parliamentary privilege”.  Then one goes to 33D(3):

However, a declaration.....waiving parliamentary privilege:

(a)  does not operate to waive parliamentary privilege to the extent that it can be asserted by a member -

Now, the contention was, your Honour, that “parliamentary privilege” as a concept is a collective idea involving powers, further duties and other obligations and that it was something which was either preserved or was not preserved.  In other words, that the “parliamentary privilege” spoken of in section 33D(1) was no different from the “parliamentary privilege” spoken of in section 33D(3).  The effect of that, so it was contended before their Honours, was that what the legislation envisaged or at least provided, whether envisaged or no, was that whilst it was open to a House to pass a resolution declaring that parliamentary privilege is waived, nonetheless, the legislation further provided that that resolution had no effect unless the Member of Parliament concerned also waived parliamentary privilege.

Now, that idea did not find favour with their Honours who dealt with it thus, at the foot of page 18:

In support of this argument it was said that the parliamentary privilege of a member is (a) quite distinct from that of the parliamentary privilege of a House looked at as an institution and (b) that this separate privilege of the member extended not only to protect the member from proceedings outside the House based on conduct inside the House but enabled the Member to prevent any inquiry into what had been said in the House.

I read that, your Honour, though I must say, with respect, that it does not, we think, entirely reflect the submission that was made in this regard which was rather more along the lines of that which I have just outlined to your Honour in address.  I read on:

The second defendant referred us to the recent Full Court decision in ‑

Parry’s Case - 

In the course of his reasons in that case, Malcolm CJ.....said:

“It is correct.....that the privileges, immunities and powers may be exercised by individual members of the Parliament.  The specific privileges conferred by Article 9.....are conferred upon the institution of Parliament as a whole and not on the individual members.  In my opinion, while it seems to be the case that individual members may invoke the privilege, it is wrong to imply that it is a personal privilege, but rather it is an attribute of their office and of the Parliament as a whole to allow them to perform freely the functions expected of them by the electors:”

That passage, indeed, was one which was relied upon by the applicant, your Honour, and in support of the proposition that privilege is a concept which, whilst it, in a sense, belongs to the institution of Parliament as a whole, that the organic nature of Parliament is such that it may, on occasion, be exercisable by the individual so far as it is necessary, at least, to permit the Parliament as a whole to function freely, which, in turn, invokes the concept of the freedom of speech within the Parliament itself.  Their Honours went on - - -

HIS HONOUR:   I do not think you need read it.  I have read the rest of that.

MR BURBIDGE:   If your Honour pleases.  I return to the affidavit, your Honour.  Paragraph (b) records:

The matter involves differences of opinion of the Court of Appeal of New South Wales, the Supreme Court of Western Australia, and the Privy Council as to the meaning of “Parliamentary Privilege”;

That Privy Council reference, your Honour, is intended to refer one back to Prebble v Television New Zealand Limited (1995) 1 AC 321 and the passage in question is at the foot of page 335. I do not ask your Honour to go to it at the moment.

Paragraph 5(c) of the affidavit records:

It is in the interests of the proper administration of justice that Courts be able to ascertain when Parliamentary Privilege precludes a Court or Tribunal from further inquiring, and by whom that privilege can be raised. 

(d)  The appeal itself has good prospects of success because:

(i) The Court of Appeal decision construes the reference in Section 7A of the Constitution Act 1902 (NSW) viz “its powers be altered” as meaning “legislative powers be reduced”:

They were the two features of the matter relied upon by the learned Solicitor‑General which the court accepted.

ii)The Court of Appeal decision construes “parliamentary privilege” in s 33D(1).....as bearing a different meaning from “parliamentary privilege” in s 33D(3) of the Act;

(iii) The Court of Appeal decision did not address whether s 106 of the Commonwealth Constitution removed the power of a State to alter its Constitution retrospectively.

Could I just read paragraph (7), your Honour:

In the event that the injunction is not continued the Inquiry hearings on Monday 13 October 1997 will proceed, with the result that the Applicant’s statements made in Parliament will be called into question.

Now, your Honour, could I just briefly indicate that that last paragraph sets out the first of the two bases upon which it is submitted to your Honour that it is appropriate in this case to grant an injunction or stay of an appropriate kind.  I have made the point, your Honour, the subject matter is at risk of destruction. 

Now, it has been said at each stage of the matter so far that it is appropriate or relevant or, indeed, obligatory to take into account that the Executive, in setting the terms of reference for this matter, have required the Commissioner to report by 24 October this year.  That, in effect, has been regarded against the wall against which we must all work in terms of time.  We would say, with respect, there has never been any indication as to why that date has any special significance, particularly against the proposition that we are dealing with a concept which has plainly significant implications so far as the conduct of Parliament itself is concerned.  I say no more than that.

HIS HONOUR:   Is there any argument advanced as to whether the character of the Parliament itself is affected by the passage of a law of this kind?

MR BURBIDGE:   Yes, your Honour.  It was put in a manner analogous to the approach adopted by this Court in Kable’s Case,although plainly with a recognition that there were special features of the court system which made it not directly applicable to it, but as least as a matter of analogy, yes, it was submitted that there is a question of institutional integrity.  That matter was dealt with by their Honours at page 12.

HIS HONOUR:   But only on the question of whether or not there was an analogy with Kable’s Case?

MR BURBIDGE:   No, it was put differently from that, your Honour.  The submission was that the concept of freedom of speech in the parliamentary framework - perhaps I could simply read from the submissions which were made to the court below.  They are to be found in the written outline of submissions of the plaintiff to that court, at paragraph 46.

HIS HONOUR:   This is part of the material that you furnished today, I take it?

MR BURBIDGE:   It is, your Honour, yes.  Does your Honour have page 13?

HIS HONOUR:   Yes, I have paragraph 46 here. 

MR BURBIDGE:   Thank you, your Honour.

HIS HONOUR:   Yes, I see.

MR BURBIDGE:   I think, and following, your Honour, if I may.  It should be read, actually, your Honour, with paragraph 27 to be found at page 8 which is the foreshadowing of the wider argument.  So the first basis upon which it is said that it is appropriate that an injunction ought be granted is that it would preserve the subject matter which would otherwise be destroyed, and the obverse, I suppose, of that proposition, that there is no reason why this inquiry need take place before this Court has had an opportunity to pronounce upon the validity of this legislation.

The second reason, your Honour, is equally briefly stated.  It is this:  that if, as the plaintiff contends, the legislation upon which this inquiry is founded is indeed invalid, then should the inquiry proceed and a subsequent declaration of invalidity be made, it may well have the effect of removing the variety of protections which would otherwise attach to the inquiry itself.  Now, it is, of course, notorious that the subject matter which will be brought into public focus by the inquiry involves matters of great sensitivity.  It would be, in our submission, entirely inappropriate that an inquiry should proceed even without the involvement of the plaintiff, for it is not contended that there is any compulsion on the plaintiff to give evidence, but even assuming that it were to proceed, she would, of course, have to make some decision about participation or non-participation and there is at least the risk that the inquiry’s proceedings would be found in due course to lack that protection which would otherwise attach.  Those are the submissions for the applicant, may it please the Court.

BRENNAN CJ:   Yes, thank you, Mr Burbidge.  Mr Solicitor.

MR KATZ:   If the Court pleases.  May I first hand up some notes of argument together with a number of authorities referred to.  Your Honour, we think that the first proposition could hardly be controversial but your Honour began the line of cases dealing with this aspect of the matter perhaps in the Jennings Construction Case but that was in the context of an application for a stay as opposed to positive injunctive relief.  So we have referred in the first paragraph to two cases in which a similar statement was made in the context of positive injunctive relief as opposed to a stay.

In both of the cases to which we have referred in paragraph 1, the Paringa Case  and Smith Kline & French, both of their Honours Justices Toohey and Justice Mason emphasised the fact that the destruction of the subject matter of a proposed appeal was a condition precedent to the exercise of this extraordinary jurisdiction but it by no means ended the Court’s inquiry.  Indeed, it seemed to begin the Court’s inquiry, as your Honour said in the Jennings Construction Case itself.  Among the matters which have been taken into account in deciding whether or not to exercise the extraordinary jurisdiction in the positive injunctive relief case have been the matter which we mentioned specifically in paragraph 3.  his Honour Chief Justice Mason adverted to that matter in the Smith Kline & French Case, 361:

In deciding whether I should exercise the jurisdiction to grant relief in the present case the first point to be made is that the applicants have been unsuccessful all the way along the line -

and that applies here as well.  Your Honour has heard that there was an application for interlocutory injunctive relief before his Honour Justice Hodgson which failed and then the Court of Appeal has unanimously dismissed the plaintiff’s summons earlier today.

The bases upon which the applicant asserts prospects of success on her special leave application include two matters falling within the general rubric of constitutional law. There is an argument based on section 106 of the Commonwealth Constitution which, in turn, is said to implicate the provisions of the State Constitution and then there is, as well, the argument based directly on section 7A of the State Constitution Act.

Your Honour, in paragraph 4 we refer to authorities, both decisions of his Honour Chief Justice Mason in the Court’s original jurisdiction.  In both of those cases when interlocutory relief was sought in anticipation of the exercise of this Court’s original jurisdiction, his Honour the Chief Justice took the view that it was only appropriate to grant interlocutory relief if compelling grounds were shown and that was because of the fact that the proceedings implicated the constitutionality of legislation.

Our submission, as we say in paragraph 5, is that in so far as this case involves, not recourse to the Court’s ancillary jurisdiction in advance of an original hearing, but rather involves an exercise of such jurisdiction in circumstances in which the matter has already been the subject of a determination of the merits adverse to the plaintiff, the considerations that his Honour Chief Justice Mason had in mind in the two cases we mention in paragraph 4 become all the more compelling, that is to say that there must be compelling grounds shown in respect of the constitutional bases upon which it was said there was error in the decision of the Court of Appeal.  In our submission, the applicant has not shown the high degree of probability of success on the two constitutional grounds to which she alludes.  But it is our submission that even if one were to use a lower test and ask merely whether there were significant prospects of success in respect of those two constitutional grounds, she would fail on that aspect as well.

If I may spend a moment dealing with those matters on their substance. Perhaps if I deal first with the section 106 point if I may. Your Honour will recall that section 106 provides that:

The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth.....until altered in accordance with the Constitution of the State.

It was sought by the plaintiff to derive from those words some prohibition against the retrospective alteration of the Constitution of the State. Nonetheless, though, what the section provides is that the Constitution continues until altered in accordance with the Constitution of the State. Of course, if the Constitution of the State provided for retrospective alteration, then in terms section 106 would have no part of a restraining kind to play.

Their Honours dealt with the question of the effect of section 106 at page 15 of their reasons for judgment. We do notice that in the affidavit which my learned friend read to your Honour, paragraph 5(d)(iii) asserts that:

The Court of Appeal decision did not address whether s 106 of the Commonwealth Constitution removed the power of the State to alter its constitution retrospectively.

With respect, we think that that is exactly what the Court of Appeal did on page 15 of its reasons for judgment. Although, on behalf of the second defendant, we put a number of arguments against the plaintiff’s argument based on section 106, their Honours found it necessary to deal only with one of those, as they say at the bottom of page 15. Their Honours say:

At the time of federation the Parliament of New South Wales had legislative power to enact retrospective laws. Since the Colony had power to pass retrospective legislation altering its Constitution immediately before it became a State that power was also part of its Constitution which was continued by s 106.

Their Honours do mention early in their reasons the speed with which they were prepared and the fact that they do not advert to all of the matters which were adverted to during the course of argument.  In support of our proposition that the colonial legislature, in particular of New South Wales, had the power to enact laws, including laws altering the Constitution of New South Wales retrospectively, we relied on what his Honour Justice Higgins had had to say in the Kidman Case back in 1915.  His Honour had expressly adverted to the authority of what his Honour then called “subordinate legislatures in the British Empire” to enact retrospective laws ‑ ‑ ‑

HIS HONOUR:   I do not think I need delay you on this aspect of it, Mr Solicitor, because if special leave were to be granted in this case, it would necessarily be on the footing that there was some matter of general constitutional importance which warrants a grant of special leave.  It would not turn on simply the circumstances of the particular case which might be thought to be appropriate for the Court of Appeal to deal with. 

But there is an aspect of what was put by Mr Burbidge which I would like your assistance on.  It is this: that if there is a provision in this Act, as I gather there is in section B, I think it is, which authorises the Governor to inquire into parliamentary proceedings, is that such a provision as affects the nature of the relationship between the Executive and the Parliament which ought to require the consideration of this Court?

MR KATZ:   Your Honour, the provision which is relevant for present purposes is, I think, section 33B(1), using the numbering as it appears in the new principal Act.  I am sorry, I may have confused your Honour in using that sort of language, but if your Honour has the amending Act, the amending Act purports to insert into the principal Act a new 33B(1).  It is that provision to which I am seeking to take your Honour.

HIS HONOUR:   Yes.

MR KATZ:   Your Honour sees that the Act does not authorise the Executive of its own motion to conduct an inquiry into proceedings in Parliament.  Rather, what the Act does is provide a facility by which a House itself can seek the assistance of the Executive for the appointment of a special commission of inquiry for the purpose of inquiring into proceedings within Parliament.

HIS HONOUR:   Within that House or one of its committees.

MR KATZ:   Yes.  For present purposes, the House is ‑ ‑ ‑

HIS HONOUR:   Now, I understand that.  But say, for example, there was a question as to whether a member had mislead the House.  Now that, ordinarily, would be a matter which would fall for determination by the House itself.

MR KATZ:   Yes.

HIS HONOUR:   If you have a provision such as 33B(1), does that authorise a majority of that House to resolve to have the same issue determined by the Executive inquiry?

MR KATZ:   Section 33F(1), your Honour, requires a majority of “at least two-thirds of the members of House present and voting”.

HIS HONOUR:   Two-thirds, yes, I see.

MR KATZ:   Of course, the authority of the House to the Governor begins the process of the appointment of an inquiry.  The inquirer has no function other than that of inquiring and reporting and your Honour will see from 33B(1) that the report goes to the Governor, as one would except, since the Governor is the appointer, and also to the House itself.  So that what is provided for by this legislation is the creation of an additional facility to the House itself whereby, instead of inquiring internally, it can call upon the assistance of some external experienced ‑ because the appointment of a Commissioner is limited by the qualifications which are set out in the Act ‑ and one may also add, non-partisan inquirer into a matter which arises in the House.

HIS HONOUR:   I see the force of what you are saying.  My inquiry really is whether or not this raises a question of the relationship between the Executive and the Legislature.

MR KATZ:   In a sense it must necessarily do so because it creates an additional mechanism whereby they interact with one another.  But, in my submission, the nature of the relationship is not such as to justify concern at a political level, let alone a legal level, because ‑ ‑ ‑

HIS HONOUR:    It is not such as to affect those privileges of the Parliament which were designed to safeguard against Executive intervention.  That is really the question, is it not?

MR KATZ:   Yes.  Well, your Honour, in my submission, there is no suggestion whatever of that, given the necessity for the House itself to initiate the process, given the fact that the external inquirer has no powers to affect the position of the member vis-a-vis his or her membership in the House.  He or she, the inquirer, is simply providing information upon the basis of which the House will do that which it has always done. 

During the course of argument in the Court of Appeal, Mr Justice Handley referred to another example of a situation in which the Houses of Parliament had themselves externalised certain inquiries which traditionally they themselves performed and he was referring to disputed elections.  With respect, that was, in my submission, an appropriate analogy with the present situation.

I may say it is common ground between us that, of course, the House might inquire into this matter and might exercise such powers as it has with respect to the member.

HIS HONOUR:   That is another matter.  It is not a question of ‑ ‑ ‑

MR KATZ:   So, in my submission, the way in which to characterise the legislation is simply as the creation of an additional facility to the House, if it chooses to avail itself of it.

If your Honour pleases, I should perhaps turn then to section 7A.

HIS HONOUR:   Yes.

MR KATZ:   Your Honour, I think, has been taken to the provisions of section 7A which are set out at the top of page 16 in the Court of Appeal’s reasons for judgment.

Your Honour will see that their Honours adopted a purposive construction of the relevant provision, in particular section 7A(1)(a). Again, as their Honours acknowledged at the outset, their Honours did not advert to all of the materials which were put forward in submission but may I tell your Honours briefly as I may that we relied upon the history preceding the enactment of the original section 7A which is notorious, an attempt by one side of politics to abolish the Legislative Council without a referendum, and the resistance by the other side of politics to that occurring. It was in that context that that side of politics which sought to ensure non-abolition without a referendum procured the introduction of the Bill which introduced section 7A. Among the things to which we took their Honours in the Court of Appeal was the second reading speech by the Attorney‑General of the day.

HIS HONOUR:   Given that, the question is whether or not the construction placed upon 7A is correct.

MR KATZ:   Yes.  In my submission ,an understanding of not only the political history but the legislative history assists in understanding the intent with which the provision was inserted and then, consistent with a purposive approach, one might legitimately construe the reference to “alteration” as their Honours did and, likewise, construe the reference to “powers” as their Honours did.

HIS HONOUR:   By “purposive approach” you mean by divining the mischief which the Act was intended to deal with and reading the Act in the light of that only?

MR KATZ:   I think what I really meant was to adopt the approach to the construction of statutes which his Honour Justice McHugh adopted in a case in the New South Wales Court of Appeal itself, which the High Court itself subsequently approved of.  I am referring to his Honour’s reasons for judgment in Kingston v Keprose, subsequently approved by the High Court in Bropho v Western Australia.  Perhaps it may be convenient if I seek to find in this mass of papers what his Honour had to say in Kingston - - -

HIS HONOUR:   No, I am familiar generally.

MR KATZ:   If your Honour pleases, in my submission, that approach entirely justifies the conclusion which their Honours reached as to the construction of section 7A(1)(a). If I may just take your Honour for one moment to the second reading speech to which I referred earlier. The Attorney-General, Mr Boyce, said in the course of his second reading speech:

We recognise that you can abolish a place and also “white‑ant” it.  There are more ways of killing a cat than choking it.  You may not abolish a House, but you might so alter its constitution or powers as to make it useless.  That is what I meant when I said the House is not to be abolished nor is its constitution or powers altered except as provided in this Bill.

As well as taking their Honours to what, if I might call it, the political history as well as the legislative history, we relied as well, in my submission, as we are entitled to do, on the consequences of construction of the sort contended for by our learned friends which was that increases in the power of the Legislative Council would necessarily have to be preceded by a referendum.  In our submission, the consequences of that construction would be so unusual, to say the least, that one would not willingly reach such a construction.  We adverted, for instance, to many provisions which conferred upon the Legislative Council a power with respect to the removal of officers newly created, like the Auditor-General or the Ombudsman or many other prominent State government officers.  We referred as well - - -

HIS HONOUR:   Let me put that to the test.  Has the Legislative Council got power to deal with money Bills?

MR KATZ:   Yes.

HIS HONOUR:   Can they preclude the passage of a money Bill?

MR KATZ:   Your Honour, section 5A - I do not whether your Honour has a copy of the Constitution Act but section 5A deals with this agreement between the Houses in cases of appropriation for annual services and the House is redefined so as to exclude the Legislative Council in certain circumstances.

HIS HONOUR:   Say you increased the power of the Legislative Council so as to include it, would that then be an alteration of its powers?

MR KATZ:   In our submission, not, consistent with the purpose for the inclusion of the provision which was to prevent someone from white-anting the Council.  To increase the powers of the Council by ordinary legislation is not a matter to be feared.

HIS HONOUR:   Yes, I see.

MR KATZ:   And that was the way in which we put the matter. I was mentioning that we did advert to a number of other provisions merely by way of illustration in which laws had been enacted without a prior referendum increasing the powers of the Legislative Council, all of which, merely treated as hypothetical examples rather than actual examples, would be things which could not be done by the Parliament of New South Wales without a referendum. Your Honour, that was the basis of our submission so far as section 7A is concerned.

The third matter is the question of the proper construction of section 33D(3)(a).

HIS HONOUR:   I do not think I need trouble you on that.

MR KATZ:   If your Honour pleases.  As to the question of balance of convenience, if we might simply address that for one moment.  We do refer in paragraph 6 of the brief document which I have handed to your Honour on matters which were relied upon by his Honour Justice Hodgson last week in refusing interlocutory relief.

HIS HONOUR:   I do not have it.

MR KATZ:   May I hand your Honour a copy of those reasons.

HIS HONOUR:   Pages 7 and 8.

MR KATZ:   Yes.  Your Honour will see at the bottom of page 7 there are references to the question of balance of convenience and his Honour refers to the consequences upon the plaintiff herself of the operation of the legislation as we contend it is properly construed.  She will, in any event, be free to decline to give evidence or produce documents by reason of the operation of the provision to which I just referred your Honour, section 33D(3)

His Honour refers also in the middle of page 8 to a matter which I imagine those to my right who are seeking leave to be heard will deal with before your Honour as well.  His Honour says:

Very serious allegations have been made against a number of people and they have a legitimate concern that the cloud raised by these allegations should be dealt with as quickly as possible but Parliament has indicated a wish that this be done and prima facie the court should respect that wish of the Parliament.

Your Honour, it is our submission that the public interest in the resolution of the accuracy of the allegations has become a matter of greater moment as time has gone by.  Your Honour, I think, has heard that the allegations are made against persons prominent in the government of the State, the Premier and the Leader of the Opposition, both, as well as other citizens, including a judge of the Supreme Court .  If your Honour pleases, those are our submissions.

HIS HONOUR:   Yes, thank you.  You have nothing to add, Mr Adams?

MR ADAMS:   No, nothing to add, your Honour.

HIS HONOUR:   Mr Neil.

MR NEIL:   Your Honour, briefly, this is a New South Wales statute that has been construed by the Court of Appeal.  It deals with specific particular situations and it lasts for six months, as appears from section 33H.

HIS HONOUR:   Is that so?

MR NEIL:   Yes.

HIS HONOUR:   I did not notice that.

MR NEIL:   To deal with this particular proceeding in relation to the speech.

HIS HONOUR:   I see.

MR NEIL:   The speech, your Honour, is the subject matter.  The Parliament has, and by also issuing the terms of reference, required that these proceedings be considered by the use of this particular Act.  There is no Commonwealth law on the point.  There will be no, we respectfully submit, basis for special leave.

The subject matter of the speech I will not go into in great detail.  No doubt your Honour has read it, but it says that there has been massive cover-up; judges, members of Parliament are concerned; my client is one who is said to have participated in this massive cover-up; that the Royal Commission had previously, in cavalier fashion, dismissed the serious allegations which had been made against judicial officers and members of Parliament.  If ever there is a need, your Honour, to have an inquiry go forth expeditiously, it is this situation.  14 October was the first date on which the inquiry was to report.  That has been extended to the 24th because of the various circumstances.  The Parliament commences to sit again next Tuesday, the 14th.

On the assumption that a special leave application would take the usual time, in effect, there would be considerable prejudice to the public good and the common wheel in the public confidence in the institutions of Parliament and the judiciary pending having an inquiry into the matter.  Now, it is clear that the cloud needs to be dealt with as soon as possible.  The Parliament has set a period upon the part of the Act  This part expires at that time.

Now, your Honour, my learned friend said there may be some problem if it is declared to be invalid but nothing has been put to counter the usual law about the de facto officers doctrine and even my learned friend did not put it as more than it may be a problem.  The Court of Appeal judgment makes it plain that the plaintiff, the applicant, at the end of pages 19 and 20, will still have her privilege.  So, she has the privilege that the section makes plain.  It is confirmed by the Court of Appeal.  She has the privilege to not give evidence.  I understand, and I understood it was common ground all round, that it is understood that if she gives evidence then she has to answer the questions but she has the clear statutory right affirmed by the Court of Appeal. 

So there is no utility, we would submit, other than the prejudice to the public good and the question of public confidence.  That is the real concern that we have and my client allies to that his continued submissions to the courts that he wishes the inquiry to proceed as expeditiously as

possible to clear not only his name. but to have the affairs of this State put into proper perspective by a full and free inquiry.  If it please, your Honour.

HIS HONOUR:   Yes, than you, Mr Neil.  Yes, Mr McCarthy.

MR McCARTHY:   Your Honour, in respect to the position of Mr Carr, he, too, has been the subject of the allegations and, in respect of expedition, it is on those matters that I would wish to put brief submissions.

Your Honour, if it should be the case that this Court was minded to have any aspect of these proceedings or what was involved with these proceedings brought before the Court, it would be my submission that that matter should be the subject of the most direct and short expedition that this Court is able to facilitate.  In fact, your Honour, I would submit that the Court would consider a situation arising under section 21(1) of the Judiciary Act whereby a single Judge could hear an application for special leave on that to bring a finality to any of the matters that are left raised by the applicant.  The Court would consider both the position of those that have been involved in the allegations and those that have been affected by them and the public good in New South Wales by directing, if it was minded to do so, that there be a hearing of that sort within, I would submit, your Honour, a matter of days if the Court was minded to hear that.

It is true, as the learned Solicitor has said to your Honour, that there is a connection between the Executive and the Legislature but it takes on a different aspect, at least for a short period of time, in New South Wales.  It is also the case, your Honour, that if the inquiry proceeded it is true, as is stated in paragraph 7 and 8 of the affidavit in support of the application, that the subject matter of these proceedings would be taken away, it would not exist and, indeed, the application for special leave would be futile.  It is in that context - that is not conceded for a moment, the question of ability or the probity or the substance of the arguments that are put forward by the applicant, but simply as a matter of fact it is the case that the application for special leave would be futile if the proceedings continued.

Now, in that context, if this Court was of a view that there are matters that ought to be heard on special leave, then that should be a matter, your Honour, that is heard virtually immediately.  It is the case, as my learned friend, Mr Neil, has pointed out that the Bill has a very short ambit, and a very short ambit not only in terms of its direction but also in terms of its time, and they would be matters that the Court would also wish to take into account on that.

Your Honour, other than that, in respect of the substantive issues, obviously there is an issue of parliamentary privilege that is involved;

Article 9 is something that is of wide significance, but the legislation has a very short period of life and what is involved is statutory interpretation in New South Wales.  Your Honour, other than that, I would support the submissions of the Solicitor-General.

HIS HONOUR:   Yes, thank you, Mr McCarthy.  Mr Walker.

MR WALKER:   May it please your Honour.  Your Honour, in our submission, at this stage where it is both special leave considerations and interlocutory injunction considerations, a proper characterisation from my client’s point of view, a judge serving as a Royal Commissioner about whom allegations have been made of a nefarious agreement not to do his duty, to characterise what in fact the applicant is seeking as an assertion of what is called the Article 9 privilege, which will have the effect designed and direct, so far as my client is concerned, that he will not be able to deny her allegations in the forum that the Parliament has determined. 

The effect, from my client’s point of view, of what she is seeking to delay is to stop my client from speaking, not merely to stop herself from facing the choice whether she will speak or not out of Parliament.  Characterised in that way, the balance of convenience issues, in my submission, your Honour, are peculiarly strong in relation to my client’s invidious position.

In the court below - I should say in the proceedings before Justice Hodgson for the interlocutory injunction, which he rejected, we relied upon an affidavit - and I would seek leave to hand that up to your Honour now - which just sets out the nature of the personal impact upon my client and his wife by reason of the further delay over and above what he has to suffer in any event in the public interest, namely, being called back.  As is notorious, my client devoted a lot of time to the Royal Commission.  He is now on a holiday and that holiday has a timetable, as your Honour sees in that affidavit, and at the moment it includes his wife in Buenos Aires and he in Sydney.

The delay which an interlocutory injunction would add to that is, in my submission, bound to expose him not only to expense but also to further prejudice of a kind which it is very difficult to be compensated.  For those reasons, in our submission, two things ought to follow in your Honour’s exercise of discretion in relation to an interlocutory injunction.  The first is that an undertaking as to damages ought to be given.  It was refused to be offered before Justice Hodgson.  That did not need to be passed upon by the Court of Appeal.  In my submission, that is now an issue for your Honour and it is a very important issue.

The applicant is not offering the ordinary protection which, under the rules of the Supreme Court in New South Wales and, as a matter of ordinary equitable discretion, would be available to somebody who is affected in their pocket or in a way which money can compensate by an interlocutory injunction having affected them and the suit finally failing.  In my submission, no ground has been shown whatever for the usual approach of requiring the undertaking being dispensed with in this case.  One can, in anticipation, canvass some of the possibilities, namely it is a case of interest to the mass media.  That would be rejected as irrelevant to the question.  Second, it is a case of public importance because it has to do with Parliament, it has to do with the powers of Parliament and it has to do with privilege and freedom of speech.  We would add, it also has to do with an inquiry as to the truth of allegations, all of which are matters clearly of transcendent importance as a matter of politics.

In our submission, that is not enough.  There are, in my submissions, no authorities which put the proposition that because litigation is brought bona fide in a context where important issues are canvassed, losers should not bear, as to interlocutory injunctions, the usual consequence of an undertaking as to damage.  In short, undertaking as to damages ought not to be seen as peculiarly confined to private law controversy about property.

The second aspect which, in my submission, my client’s peculiar circumstances would enliven in your Honour’s discretion relates to the balance of convenience and whether the injunction should go at all.  I have already sought to characterise the case in a way somewhat different from the way Mr Burbidge has in terms of the applicant’s aim.  In my submission, your Honour will view this as an interlocutory injunction to restrain the carrying out of legislation and acts apparently authorised under legislation when that legislation has not yet been held to be invalid and, indeed, has survived a challenge to it in the Court of Appeal.  One does not need to add that it survived the interlocutory scrutiny before Justice Hodgson.  What matters is it was rejected in the Court of Appeal and ,in our submission, on clear authority in this Court, Castlemaine Tooheys and the Electoral Advertising Case.

It is a special context in which an interlocutory injunction is sought against the execution of a law not yet held to be invalid, and in both those cases the injunction was in fact refused at the interlocutory level, notwithstanding that some time later in each case the laws suffered some reverse.  In our submission, this case is a fortiori those.  There is, in our submission, nothing like the compelling case for invalidity shown by any of the arguments that Mr Burbidge has canvassed or recanvassed.

Your Honour, there are only two which, in terms of that balance of convenience compelling error point, we would wish to touch on very briefly. The first is as to the section 106 point. In our submission, it is plain from section 33B(1) that it is the particular House which controls the agenda of an inquiry; an inquiry conducted, admittedly, before a person commissioned by the Governor and, admittedly, a report which will be given to the Governor. But the Governor is not given any power to do anything with the report and the Governor, it can be safely supposed as a matter of argument on this level, is not going to use the choice of the Commissioner to interfere with the Parliament. In other words, one should not approach these arguments on the basis that there will be some sinister way in which the actual choice of a particular individual will, itself, constitute an interference of the House. One would suppose the Governor would act bona fide and properly and that the Commissioner would act bona fide and properly, that being the proper foundation to construe statutes.

That being so, there is no possibility of anything which in any substantive sense could be regarded as interference or an over-reaching into the arena of Parliament by the Executive. For those reasons, in our submission, this is a very, very inadequate vehicle for this Court to consider whether there are any doctrines in the Constitution ,or either of the Constitutions in question, which entrench a particular form of relation between Executive and Parliament as it obtained, for example, in 1901. This is a very poor vehicle because it will not raise the question of an interference. There is no interference by section 33B(1).

Clearly, the issue of whether there is such a doctrine and its application in a particular case is not the kind of issue which is very apt for this Court to consider.  That does not involve by me any concession as to special leave in this case, your Honour, as to prospects of special leave, because one can scarcely imagine a worse vehicle to test anything to do with interference when the law in question is simply a report into the truth and back to the Parliament as the learned Solicitor for then the Parliament or the House of Parliament to do with it what it will.  So for those reasons, the 106 point, in our submission, ought not to trouble your Honour in that regard.

The second one I wanted to turn to was the question of section 7A of the New South Wales Constitution. I am not sure that your Honour had drawn to your attention the care with which, in section 33G(4), Parliament made clear that it did not, by these provisions, limit any existing power of waiver and, in our submission, that is of significance to the alteration argument. A very broad analogy, very broad indeed, can be drawn with section 15 of the Constitution Act, your Honour, which empowers the Parliament to regulate its proceedings - I paraphrase loosely - by, amongst other things, standing orders approved by the Governor.  In our submission,

it is not to be suggested that the regulation of its proceedings by an approved standing order amounts to an alteration of power. It is rather a manner and form exercise and, in my submission, what these provisions here are doing ought not to be seen as an alteration of power in the sense used in section 7A but, rather, as a manner and form provision: how you can do it; by whom you can do it and what can you do? You can waive Article 9 privilege in order that there be an inquiry into the truth of an allegation.

It is notorious that each House, from time to time, does so by resolution of an order to permit, for example, the Hansard to be tendered in a court, practically always, of course, with a rider that it is to be used - the waiver only goes to permit proof of what was said in the House but, of course, it is an illustration of the power that they have exercised for a very long time. So, for those reasons, in our submission, there is nothing in the section 7A point either.

With that, your Honour, in my submission, it can be seen that far from there being a compelling case for invalidity, there is a very weak case for invalidity and accordingly, the principles which particularly apply to interlocutory injunctions against the execution of a law not yet held invalid would apply, coupled with the peculiar personal circumstances of my client which, in my submission, are affecting and have been given no recognition at all by the applicant in her refusal to offer an undertaking, the application ought to be dismissed.  If it pleases the Court.

HIS HONOUR:   Mr Burbidge.

MR BURBIDGE:   Very briefly if I may, your Honour.  Perhaps if I could just respond first to my learned friend, Mr Walker, as to the proposition that this is a dubious vehicle for the examination of important questions which arise.  Could I just, your Honour, draw attention to the written submissions which were made by the plaintiff before the Court of Appeal as set out at page 9.  No doubt my learned friend does not have those.  Could I just simply indicate, your Honour, that we would submit that this question which is raised really does go right to the core of the question of the meaning and importance of Article 9 in the context of the parliamentary operation.  I do not wish to elaborate upon that, your Honour, but the arguments or the submissions which we advanced in that area are to be found on page 9.  I do not seek to repeat them.

Your Honour, the only other matter which we would offer is this, that my learned friend, Mr Walker, made reference to the question of an undertaking and my learned friend, the Solicitor-General, dealt with the circumstances in which it may be appropriate for the Court to make an interlocutory injunction.  Could I just say, your Honour, we would draw attention to Polyukhovich v Commonwealth of Australia 95 ALR 502, and it does double duty in this regard. It is a case where, notwithstanding that there must necessarily have been a significant occasioning of expense by reason of the necessity of witnesses to travel vast distances for the purpose of the trial which was being interrupted by the making of the order, it does not seem from the report that there is any question of an undertaking being sought as a condition of the grant which was, in fact, made.

The second aspect of the matter, your Honour, is simply to say to your Honour that certainly that was a case where her Honour Justice Gaudron applied what appears to be something less stringent by way of a test.  It is to be found at page 507 of the report.  It is one line, your Honour, if I may read it:

It is convenient to state, before turning to the right sought to be vindicated by the present application and the damage to the public interest that may be involved if the application is granted, that, in my view, the applicant’s case for constitutional invalidity has some prospect of success.  It is undesirable that that aspect be further elaborated.

Finally, your Honour, could I just return to the question of - - -

HIS HONOUR:   So that I can be quite clear, you offer no undertaking?

MR BURBIDGE:   Your Honour, as I said to his Honour the Chief Judge in Equity, if it were made a condition of a stay or an injunction, then I would seek instructions on it.  It is not offered, your Honour, no.

HIS HONOUR:   I am not quite sure what you intend by that.  My function will be to determine your application.  It will not be to determine it, as it were, conditionally.

MR BURBIDGE:   No, quite, your Honour.  Your Honour, the instructions I have are sufficient to enable me to say, no, your Honour is correct, no undertaking is offered.  If your Honour pleases.

HIS HONOUR:   Yes, very well.

MR BURBIDGE:   Finally, your Honour, on the matter of the extent to which the Executive is involved or may be seen to be involved in the actions required under the legislation, could I just draw attention to 33B(4) of the legislation in question.  Your Honour will see that the provision in that subsection is that:

A resolution under this section authorises but does not require the issue of a commission, as contemplated by the resolution -

et cetera.  The effect of that, so it is submitted, your Honour, is this, that the question of whether or not any person will in fact be appointed is one which falls to the discretion of the Executive.  Equally, the identity of the person to be so appointed and required, et cetera, is again a matter within the discretion of the Executive and, finally, the date by which the report is to be made is a third matter falling within the discretion of the Executive.

I make those points only, your Honour, in support of the proposition that this is not merely a matter of Parliament delegating some function in some way.  There is, with respect, it is submitted, a clear question as to the interaction of the Executive with the proceedings of Parliament in this respect.

Those are the matters in reply, may it please your Honour.

HIS HONOUR:   Yes, thank you, Mr Burbidge. 

As is clear, I think, I have had an opportunity to read but not fully to digest the judgment of the court below and I should like an opportunity to consider it more fully, together with the arguments that have been presented here this afternoon.  I would be prepared to give a decision on this matter on Monday but that raises the question of the commencement of the proceedings on Monday.  Mr Solicitor, are you able to be of any assistance in that regard?

MR KATZ:   I would not oppose an injunction until Monday, your Honour.

HIS HONOUR:   I think, in those circumstances, I will make an order for an injunction, I presume in the same terms as those which have previously been made, until 4 pm on Monday next, and I will adjourn this application in order that I can give you a decision on it at 12 o’clock on Monday next in Canberra.

MR KATZ:   If your Honour pleases.

AT 5.25 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 13 OCTOBER 1997