GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
MICHAEL EGAN APPELLANT
AND
MAX WILLIS FIRST RESPONDENT
WARREN CAMERON CAHILL SECOND RESPONDENT
Egan v Willis [1998] HCA 71 19 November 1998 S75/1997
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
L S Katz SC, Solicitor-General for the State of New South Wales with M J Leeming for the appellant (instructed by Crown Solicitor for the State of New South Wales)
B W Walker SC with P T Taylor for the respondents (instructed by Mallesons Stephen Jaques)
Interveners:
D M J Bennett QC, Solicitor-General for the Commonwealth with H C Burmester QC and G M Aitken (instructed by Australian Government Solicitor)
2.
D Graham QC, Solicitor-General for the State of Victoria with P M Tate (instructed by Victorian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with J C Pritchard (instructed by Crown Solicitor for the State of Western Australia)
B M Selway QC, Solicitor-General for the State of South Australia with G J Parker (instructed by Crown Solicitor for the State of South Australia)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Egan v Willis & Anor
Parliament (NSW) – Legislative Council – Powers – Non-compliance by member of Legislative Council with order for production – Suspension of member for remainder of sitting day – Whether such suspension within power.
Parliament (NSW) – Legislative Council – Functions – Superintendence of executive government.
Parliament (NSW) – Responsible government – Source – Nature.
Justiciability – Powers of Legislative Council – Existence – Occasion for exercise – Manner of exercise.
Relief – Declaration – No other remedy sought – Availability – Discretionary considerations.
Constitution Act 1902 (NSW), s 5. Standing Rules and Orders of the Legislative Council (NSW), Standing Orders 18, 29.
GAUDRON, GUMMOW AND HAYNE JJ. On 1 May 1996, the Legislative Council of New South Wales passed a resolution calling on the appellant, the Leader of the Government in that House and Treasurer, Minister for Energy, Minister for State Development and Minister Assisting the Premier, to table certain papers in the House or deliver them to the Clerk. The appellant did not do so, the Cabinet having earlier agreed that Ministers should decline to comply with any orders from either House of Parliament to table documents.
On 2 May 1996, the Legislative Council passed a resolution adjudging the appellant guilty of a contempt of the House (par 2), suspending him from the service of the House for the remainder of the day's sitting (par 3(a)), and ordering him to attend in his place at the Table of the House on the next sitting day to explain his reasons for not complying with a number of orders of the House to table documents, including the papers mentioned in the resolution of 1 May 1996 (par 3(b)). The appellant did not…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Egan v Willis [1998] HCA 71
Case
[1998] HCA 71
Decision Date
CaseChat Overview and Summary
The case of *Egan v Willis & Anor* involved an appeal to the High Court of Australia concerning the powers of the New South Wales Legislative Council. The dispute arose when the Legislative Council passed resolutions requiring the appellant, a Minister of the Crown and member of the Legislative Council, to table specific government documents relating to a controversial mining proposal. The appellant, acting on advice that such orders were invalid, declined to comply with these resolutions. The Legislative Council subsequently suspended the appellant for the remainder of the sitting day. The appellant sought a declaration that his suspension was unlawful.
The central legal issues before the High Court were whether the Legislative Council possessed the power to compel the production of State papers and, if so, whether the suspension of a member for non-compliance with such an order was a lawful exercise of the Council's powers. The Court was also required to consider the nature of responsible government in New South Wales and the extent to which the courts could intervene in the internal proceedings of Parliament.
The High Court affirmed that the Legislative Council, as part of the legislature, possesses such powers, privileges, and immunities as are reasonably necessary for the proper exercise of its functions. The Court recognised that a key function of the Legislative Council is the superintendence of the executive government, which includes the power to require the production of State papers. While the Court acknowledged the principle of responsible government, it held that the circumstances of the appellant's representation in the Legislative Council and the specific nature of the documents sought did not render the Council's order invalid. Furthermore, the Court determined that the power to suspend a member for a limited period, such as for the remainder of a sitting day, was a power reasonably necessary for the Legislative Council to maintain its order and effectively perform its legislative and oversight functions. The Court found that the appellant's suspension was within the Council's powers.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Part VIII of the Standing Orders is headed "QUESTIONS SEEKING INFORMATION FROM THE GOVERNMENT OR PRIVATE MEMBERS" and comprises Standing Orders 29‑32A. Standing Order 29 deals with Question Time. It states:"Questions may be put to Ministers of the Crown relating to public affairs; and to other Members, relating to any Bill, Motion, or other public matter connected with the business of the House, in which such Members may be concerned, and the Clerk shall enter upon the Minutes of Proceedings the Questions of which formal notice shall have been given, with the answers returned to the same."The facts In the Court of Appeal, the Chief Justice described the circumstances of the dispute giving rise to the present litigation. His Honour said[11]:"During 1995, in respect of a number of politically controversial government proposals, the Legislative Council, under Standing Order 18, resolved that there be tabled, in [that] House, documents relating to various activities of 'the Government'.There was nothing novel about such resolutions. The Court has been given details of many occasions, going back to 1856, when the Legislative Council has passed resolutions requiring the production to the Council of State papers. It appears that, in the great majority of such instances, the requirement has been obeyed without demur. However, on several of the occasions in 1995 mentioned above, the power of the Legislative Council to require the tabling of State papers was disputed.The issue came to a head with respect to a matter concerning a proposal by a mining company in relation to a gold mine at Lake Cowal near West Wyalong. The nature of the political controversy in relation to the proposal is irrelevant. It suffices to say that the Opposition in the Legislative Council moved for the appointment of a Select Committee to inquire into and report upon certain decisions that had been made by a Commission of Inquiry, and advice or information that had been received by the Government about the matter."[11](1996) 40 NSWLR 650 at 654‑655. On 23 April 1996, the Legislative Council resolved that there be tabled "all papers" relating to the consideration by the Government of the report of the Commission of Inquiry and the determination of the consent to the project. The resolution stated that it would be a sufficient compliance "for the Minister to table the documents required by delivering them to the Clerk of the House". It is common ground that the "Minister" referred to was the appellant. On 29 April 1996, Cabinet considered the resolution and made the following decision[12]:"The Cabinet agreed that Ministers should act on advice previously obtained from Crown Law officers and, accordingly, decline to comply with any orders from either House of Parliament to table documents on the grounds that such orders are invalid and beyond power."[12](1996) 40 NSWLR 650 at 655. On 2 May 1995, the appellant had informed the Legislative Council that, in addition to acting in respect to his own portfolios, he would, in the matter of the representation of government responsibilities in the Council, represent the Premier and a number of other named Ministers, including the Minister for Urban Affairs and Planning. Section 38A of the Constitution Act provides for, at any one time, one Minister of the Crown who is a member of the Legislative Assembly to sit in the Legislative Council, with the consent of that body, and for the purpose only of explaining the provisions of any Bill relating to or connected with any Department administered by him; this Minister may take part in any debate or discussion in the Legislative Council on that Bill but shall not vote in the Legislative Council. The provision for "representation" by the appellant, including of the Minister for Urban Affairs and Planning, had no foundation in s 38A. In the Court of Appeal, the Chief Justice observed[13]:"In this context, the concept of representation has a significance based upon convention and parliamentary practice. It has no defined legal or constitutional status. A minister who is a member of one of the two Houses will be represented in the other House; the representative, the Court was informed, undertakes 'the accountability obligations' of the minister being represented 'to the extent permitted by the co‑operation' of the latter."The Chief Justice also noted[14]:"It has been agreed between the parties that the [appellant] had in his custody and control at least four documents which were capable of being regarded as falling within the resolution of 23 April 1996. One of those documents was a report, or a copy of a report, from the Director‑General of Urban Affairs and Planning to the Minister for Urban Affairs and Planning, dated 2 April 1996. The other three documents were described as ministerial briefing notes which had been prepared for the purpose of enabling the [appellant] to answer questions in the Upper House on the subject of the Lake Cowal project. There is no agreement, or evidence, as to whether the [appellant] had, or could obtain, any other documents, or copies of documents, falling within the resolution. The [appellant] has taken his stand, not upon any suggested compliance with the orders of the Council, but upon what he contends is the Council's inability to compel compliance."[13](1996) 40 NSWLR 650 at 654.[14](1996) 40 NSWLR 650 at 655.The role of the courts
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GAUDRON, GUMMOW AND HAYNE JJ
HUGH J
(dissent)
One aspect of responsible government is that Ministers may be members of either House of a bicameral legislature and liable to the scrutiny of that chamber in respect of the conduct of the executive branch of government. Another aspect of responsible government, perhaps the best known, is that the ministry must command the support of the lower House of a bicameral legislature upon confidence motions. The circumstance that Ministers are not members of a chamber in which the fate of administration is determined in this way does not have the consequence that the first aspect of responsible government mentioned above does not apply to them. Nor is it a determinative consideration that the political party or parties, from members of which the administration has been formed, "controls" the lower but not the upper chamber. Rather, there may be much to be said for the view that it is such a state of affairs which assists the attainment of the object of responsible government of which Mill spoke in 1861.Conclusions The arrangements made for New South Wales for the period following 1855 provided the elements of what now should be identified as a system of responsible government. There was an assumption of a measure of examination of the executive by the legislature as well as legislative control over taxation and appropriation of money. The consideration that the government of the day must retain the confidence of the lower House and that it is there that governments are made and unmade does not deny what follows from the assumption in 1856 by the Legislative Council of a measure of superintendence of the conduct of the executive government by the production to it of State papers. It is not necessary to consider for the purposes of this appeal the limits involved in that superintendence. What is presently significant is the immediate interrelation between that superintendence and the law‑making function in which the Legislative Council participates, together with the Legislative Assembly and the Crown. The principle derived from the authorities and not challenged on this appeal is that the Legislative Council has such powers, privileges and immunities as are reasonably necessary for the proper exercise of its functions. As Priestley JA emphasised in the Court of Appeal[69], to decide whether a particular power, here the power of suspension of a member for a limited time from the service of the House, is reasonably necessary for the Legislative Council to perform any constitutional function, it is necessary first to identify that function.[69](1996) 40 NSWLR 650 at 692. The primary function of the Legislative Council is indicated by s 5 of the Constitution Act. This is the exercise by the Legislative Council, as an element of the legislature, of its power, subject to the provisions of the Commonwealth Constitution, to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever. As has been pointed out, subject to restrictions with respect to money Bills, a Bill may originate in the Legislative Council. Further, the Legislative Council has, in general, equal power of disallowance of delegated legislation[70].[70]Interpretation Act, ss 40, 41.