Egan v Willis

[1998] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S75 of 1997

B e t w e e n -

MICHAEL EGAN

Appellant

and

MAX WILLIS

First Respondent

WARREN CAMERON CAHILL

Second Respondent

GAUDRON J

McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 18 JUNE 1998, AT 9.34 AM

(Continued from 17/6/98)

Copyright in the High Court of Australia

MR WALKER:   May it please, your Honours.  Your Honours, yesterday as I was addressing just before the adjournment, your Honour Justice McHugh raised in relation to the American case law and the principles established by it a question whether or not they really meant there was no power to punish for contempt in the United States, whereby some of the submissions I was putting would lack a foundation.  In our submission, the American jurisprudence is of some importance in comparing with the position in this country, particularly if there is a thought to moving away from Barton v Taylor or Willis v Christie and Perry.

In short, my submission is that there is, in fact, a power to punish for contempt in the United States, there being no delicacy in the United States about using the word “punishment” and indeed, including things which could be scarcely described otherwise, nor is there any coyness about describing it as “punishment for contempt”.  Where, however, the appearance rather than reality of great differences between American jurisprudence and ours on the point emerges, is where one notes that for the Americans the power to punish for contempt is limited to those cases where, by punishing, they prevent interference with proceedings or the exercise of functions or they punish for the obstruction of the performance of the House’s functions.

That language, of course, is very, very close to the language of Baron Parke adopted and approved by Mr Justice Isaacs in Willis v Christie and Perry which I relied upon yesterday and, in particular, those parts of that well‑known passage where his Lordship said that:

we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding.

We, of course, have already observed that protecting oneself from impediments will include a number of things which are surely not just passive and we would emphasise the words “due course of proceeding”.  The next sentence is important as well:

To the full extent of every measure which it may be really necessary to adopt -

an important phrase -

to secure the free exercise -

and we emphasise that as well, that is unhindered and it means unhindered in every case -

they are justified in acting by the principle of the common law -

which is the principle that has now been dubbed in English one of reasonable necessity.  So that the American case law cannot be seen simply as saying no power to punish for contempt.  More properly it is no power to punish for contempt unless the contempt can be seen as one which is comprising the interference with proceedings or the exercise of functions or the obstruction of performance.

The matter is complicated however by decisions such as Jurney v MacCracken which is noted in Professor Campbell’s memorandum 294 US 124 where, as your Honours will recall, the contempt in question was first a failure to produce and then, worse, the destruction of documents sought for because of their inquiries by a committee. That was, of course, held to be a contempt and the argument was put that it was, by its nature, that is destruction, completed contempt, unlike perhaps non‑production, which is our case, where there can be a locus paenitentiae, a moment for reflection by suspension and then repentance and compliance.

But there it was argued in Jurney v MacCracken that it was all over and that, therefore, this was the kind of punishment which could not be designed or could not be calculated to remove interference with proceedings or obstruction to performance of function.  The Supreme Court rejected that in relatively short compass pointing out, in effect, and these are my words not theirs, that it was essential for the securing of the due performance of the House’s functions that such actions not go with impunity.  When one then considers the decisions in America which were considered and three or four of them usefully paraphrased and interpreted in McGrain v Daugherty, in the passage to which I drew your Honours’ attention yesterday, it is clear that there was, in the United States, and is in the United States, a power which does bear close comparison with the power asserted in this case and in cases which might depend on the principle in this case.

Thus, in Anderson v Dunn, a case which has suffered some strictures at the hands of my learned friend, there was a bribery attempt so it appears from the description of that case in McGrain v Daugherty, and it was established, very firmly, that there was a power to punish for contempt a non‑member for attempting to bribe a member.  It was posited on exactly the same basis which was later vindicated in Jurney v MacCracken and McGrain v Daugherty, it is not doubted, and in Anderson v Dunn itself the power is described as one which will include, and I am quoting from the United States Reports at page 229:

the power to suppress rudeness, or repel insult -

that such an assembly should not possess that power was described by Mr Justice Johnson speaking for the Marshal Court as -

a supposition too wild to be suggested.

In our submission, there are clues there that the power to punish, while said to be protective in the sense which also, we would say, Mr Justice Isaacs adopts, also includes the notion that there can be exemplary cases in order to ensure that there not be repetition.  So that, in America, in our submission, it is not completely correct to say, without qualification, no power to punish for contempt.  What is important and stands in contrast, is that in our law, a power to punish for contempt, fine or prison in particular, is said to belong to the House of Commons by reason of lex et consuetudo parliamenti and thus not to be part of the common law by implication.  In America the reverse is the case.  It is said, and it is said of the House of Commons in certain places as well in the United States, that the power comes by implication.  In the United States the power to punish for contempt in the American sense I have described, overtly is justified as coming by necessary implication, that is, by the principle of reasonable necessity.

McHUGH J:   How do you seek to distinguish the rule for which you contend in this case, having regard to its facts, and the ratio of Willis, having regard particularly to what Justice Isaacs said at 600 about the facts of that case?

MR WALKER:   Your Honour asked me how do I seek to distinguish?

McHUGH J:   Yes.  In Willis, Justice Isaacs set out, that although:

the plaintiff was guilty of very disorderly conduct while in the chamber -

once he stepped outside the chamber, there was no justification for arresting him, outside the chamber.

MR WALKER:   Yes.  Rather than seeking to - - -

McHUGH J:   He does tend to indicate, or undermine, the argument you put about this suspension being protective of the House’s function.

MR WALKER:   No, and may I explain why.  There was action which is pleaded as the offending action in the chamber, of course, in Willis.  And Mr Justice Barton describes it as a failure:

to take off his hat and to make an obeisance to the chair and.....in other respects -

so that there was what Mr Justice Isaacs describes as “very disorderly conduct while in the chamber” and “very disrespectful conduct in leaving it”.  One assumes that is the failure to uncover as one passes the chair.

The Act for which he sued, however, was an arrest outside the chamber and as Mr Justice Isaacs describes it:

at all events in a place where he was not in a position to interfere with the legislative functions within the chamber -

Now this case, of course, is a case where the man is suspended which prevents him from being in the chamber because in the chamber he is preventing performance of the functions by refusing to produce in the chamber.  So there is no distinction necessary, your Honour, and in our submission ‑ ‑ ‑

McHUGH J:   But you go - I suppose we cannot take judicial notice of the geography of the - - -

MR WALKER:   I would not discourage your Honour from taking judicial notice of the fact that there is a chamber which is an enclosed room.

McHUGH J:   Yes, I know, but there is quite a distance from the Legislative Council chamber to get to the footpath.  You have to go down hallways and ‑ ‑ ‑

MR WALKER:   We lost the footpath point, your Honour.  We committed a trespass.

McHUGH J:   But it is not merely the footpath point; it is from the door of the chamber to the footpath.

MR WALKER:   What I will call the precinct point has not been taken against us.  It is not an issue for this Court and it does not affect the principle, with respect.  It may well be that Willis may have justified that point being taken, with great respect to those who did not take the point.  We doubt it because there is, from recollection - and this is pure memory, I am sorry, your Honour - an expression, “the chamber and the room set aside for the Members of the Council”.  So there is more than just the chamber.  There is no distinguishing necessary at all.  Of course, the American jurisprudence which I have just referred to does not sit entirely on all fours with the approach taken in Willis but, if one concentrates on the particular tort, that is the laying on of hands for the arrest, which is clearly not a punishment, then it may well be that the American approach would be precisely the same.

Your Honours, there is another respect in which, germane to questions which were directed to me yesterday, the American jurisprudence is worthy of comparative note, particularly if there is some thought to departing from the authorities which govern at the moment.  As my learned friend has pointed out, one finds in the reports an expression of what might be called a contemplated legislation test.  I have now moved off a power to punish to the question of a function, an inquiry function.  As I pointed out yesterday, that has to be read according to how it is actually applied to understand what the test means.  The way in which that has been applied shows that the test means that the subject matter of the inquiry is one which is apt for legislative attention.

That comes in particular from the passage in McGrain v Daugherty to which I drew your Honours’ attention yesterday where their Honours made it plain that, while it might be desirable perhaps to ease the judicial task for there to be an avowal in the particular resolution or warrant of the possibility of legislation, it is certainly not necessary to have a particular Bill in mind or any particular putative legislation at all.

McHUGH J:   Could I ask whether you place any reliance on notions of reciprocity?  It may be arguable that there are at least implied obligations on each of these Houses and the Crown to co‑operate in the legislative process or for the purpose of legislating, and therefore there may be some - although they are in one sense separate entities, nevertheless there are some reciprocal obligations and there may be some duty on the part of the Crown, for example, to furnish relevant information to the Houses.  You have not mentioned anything like that but I just ‑ ‑ ‑

MR WALKER:   No, I have not because the problem with using the word “duty”, your Honour, is that immediately, particularly after what I have been asked about justiciability, there is raised the question, where is this enforceable; at whose instance and by what sanction?  For example, could an order in the nature of mandamus be ‑ ‑ ‑

McHUGH J:   Well, it may be, to use an equity expression, a duty of imperfect obligation.

MR WALKER:   Yes, and in this area, of course, we are still smarting from the admonition uttered by Chief Justice Gleeson, and accepted by us, that the mere assembly of political science, some of which will be descriptive, much of which will be normative or Utopian, will not necessarily be the right way to proceed in establishing rights and obligations which must ultimately be adjudicated as matters of laws when, for example, the question of civil torts arise, as in this case.

In light of all that, what we would say, your Honour, with great respect, is that there is in a sense, probably not justiciable, but that must be left for another day, a duty of co‑operation but that that may be only a political statement to be making.  What matters in this case is that there is a power to suspend a Member for failing, if one likes, to act in accordance with what the system of our legislature requires, namely subjection of the executive to an inquisitorial function of a House which is seized of the power, function and, we would submit, in a civic sense, the duty to legislate with respect to the administration of the State, that is with respect to good government.

HAYNE J:   But the political statement you refer to can have content if, and only if, there is a relevant function.

MR WALKER:   Yes, your Honour.  The function I have just referred to is the section 5 function, that is to legislate for peace, order and good government, and the ancillary or auxiliary function, which I have pinned on rule of law, accountability in the very general sense and responsible government only in a most diffuse sense, is one which is also called in aid, but the legislative function overtly in section 5 is our main one.

While on responsible government I am reminded, your Honour, it came to me this morning, that there is discussion in Victoria, of course, I think in Musgrove v Toy, in relation to responsible government, an authority with which I was and am familiar, but which escaped me when your Honour asked me that question yesterday.  It does not, with respect, add anything, I believe, to what I have already said about that question.

HAYNE J:   What is the reference?

MR WALKER: The reference is 14 VLR 349. I think leave was dismissed in the Privy Council; I will get the Privy Council reference.

GUMMOW J:   I thought one of the Toy Cases came here.

McHUGH J:   Yes, I am sure it did.

MR WALKER:   Yes, it did, but I do not think it added anything; I think it was in the Victorian Court where there was discussion about responsible government, I think in the sense that your Honour was recalling as well.

May I simply give in deference then to my answer to Justice McHugh about the American case law, a reference that we have found in the library of this Court, I am not sure whether you would like copies.  It is a long article.  It was written while McGrain v Daugherty was pending in the Supreme Court.  It is by Potts, it is called Power of Legislative Bodies to Punish for Contempt.  It is found in volume 74 of the University of Pennsylvania Law Review 691 and it is a useful location of an alternative American view, which holds that the power to punish for contempt comes by implication, that is, from reasonable necessity.

Your Honours, may I then finally on that matter and in relation to the test that we propose, draw your attention to the passage from Story’s Commentaries, which I handed up yesterday.  That is at page 613, where his Honour, extracurially, of course, goes directly to this question of power to punish for contempt, and uses language which we would call in aid in relation to a proper understanding of the reasonable necessity principle,. About halfway down the passage on 613, his Honour refers to:

another maxim.....that where the end is required the means are, by implication, given.  Congress are required to exercise the powers of legislation and deliberation.

Et cetera, et cetera, and then he refers to the:

many qualifications and modifications in their application -

or rules of interpretation -

to the actual business of human life and human laws?.....Such instruments -

that is, Constitutions -

must be construed reasonably and fairly, according to the scope of their purposes, and to give them effect and operation, not to cripple and destroy them.

We would contrast that approach, which continued, then calls in aid:

common sense.....and in furtherance of the fundamental objects -

I contrast that with what my learned friend gets from The Trolly, Draymen and Carters Union Case, Mr Justice O’Connor’s adoption of Chief Justice Fleming in Fenton v Hampton, which really is a strict necessity case and describes as a casus omissus that which is lacking, if you simply apply the test, can the body exist?  Can the thing be done at all?  It is not enough that it simply be not done as effectively and, in our submission, what Justice Story is saying and what the American cases show, is that reasonable necessity does not depend upon the ability to show that nothing at all can be done ever, without the desired power.  It is quite different.

That comes then from the Australian cases which presently bind us and that is that in Gipps v McElhone that necessity is called in aid for the privilege against defamation action.  It cannot be said that one cannot deliberate and cannot legislate at all in any case without such a privilege.  It can be done; it was done before such a privilege was successfully asserted.  It was done in a way which is unreasonably ineffectual or dangerous or inappropriate, and so strict necessity is not the test at all.       The same is true of expulsion of an unworthy member - Armstrong v Budd.  It cannot possibly be said that one cannot deliberate or legislate if there is the potentially polluting presence of such a person.  That cannot be right.  It is not strict necessity.  It is a matter of reasonable necessity.

May I then turn to the question of exceptions, just exceptions or otherwise, not dealt with by this case.  Cabinet secrecy has been raised as one example.  One can also refer, of course, to commercial‑in‑confidence matters where privatisation and public works tendering is in question.  One could also refer in times of civil or war emergency.  Even in a State Parliament there will be matters of great sensitivity.

Our position is relatively simple on that.  First, that this case provides no adequate vehicle to test the limits of such exceptions or their application and that in this area above all, the Court should proceed according to concrete cases.  Second ‑ ‑ ‑

GUMMOW J:   It might be that one or other of these exceptions could be availed of here.

MR WALKER:   Yes.  Indeed, the Court of Appeal has already observed that expressly and made it plain that Mr Egan had not claimed any such matter.  Now, there is no estoppel preventing him if this goes back to the chamber from saying, “Now, having raised the question of principle and lost”, if that were the result, “I now have in relation to a particular document another reason”.  That comes to my second point and that is that, of course, there will first be political accommodation.

There will be, as volume 2 already records in the past statements by people asked to produce saying, in effect, “Spare me, you don’t want to know this or you don’t want this public for reasons upon which I ask you to trust me.  Come and have a look at the paper privately rather than go through the parliamentary exposure”.  Now, that may not be a matter of legally enforceable delineation but it is a very practical matter which has to be borne in mind when considering the question of an argument from inconvenience.

KIRBY J:   But do you contemplate that there would be exceptions for cases of executive privilege or some other such basis and, if so, are courts just to make it up?  I mean, given that you have not cited any authority along these lines, is that not itself somewhat indicative of the absence of law in this area and the need to proceed with caution in making it all up?

MR WALKER:   I am not asking the Court to make anything up about any exception at all, your Honour.  My first point was that, as the Court of Appeal did, the question ought to be noted and reserved, as your Honour yourself drew attention to the way Mr Justice Mahoney had done that.  Chief Justice Gleeson does that as well.  That is, there may be another case.

KIRBY J:   But one of the attacks on your proposition is that we are in a realm here where you cannot point to authority that indicates the scope of the exceptions and that that should make you cautious about establishing the rule.

MR WALKER:   No, with great respect, your Honour.  I have pointed to authorities in relation to the function and the implied power carried in its train of inquiry.

KIRBY J:   But what about executive privilege and the secrecy of cabinet?

MR WALKER:   I have not pointed to any authorities on executive privilege, nor has the other side, because the case has never arisen where there has been a conflict between the majority in a House ordering a man’s suspension because he asserted that he need not deliver a document because it was covered by executive privilege.  That has not yet arisen.  One of the reasons it has not arisen ‑ ‑ ‑

KIRBY J:   Is that not rather indicative in 800 years of Parliament and in the many clashes that have existed over that 800 years between the Crown and the executive and the legislators that it has never arisen?

MR WALKER:   No, the very reverse is the case, your Honour.  Eight hundred years for a start is irrelevant.  This is a 16th and 17th century phenomenon at its earliest.

KIRBY J:   All right, let it be 300 years.  We just settle for ‑ ‑ ‑

MR WALKER:   Well, it is not even 300.  Really it is the 19th century, your Honour.  That is the first thing.

KIRBY J:   All right, let us settle for 150 years then.

MR WALKER:   Yes.  Second, we have in volume 2 and a finding that for the whole life of our Parliament there has been production.  In short, the precedent of conduct and history is that executive privilege is not claimed.  Now, that is what is significant in the absence of judicial authority.  That is the first thing.

The second thing is there is no judicial authority which has ever upheld the right - called executive privilege or public interest immunity or Crown privilege or whatever else - to resist the lawfulness of a suspension from a chamber because no one has ever claimed to be entitled not to produce because of the quality of that document.  I stress “entitled”.  What one does find is what I referred to secondly, that there is political accommodation by debate in the House, and that is something that has to be borne in mind.

This, I would remind your Honours again, is an exceptional case which is a milestone in history, not in the way that your Honour Justice Kirby has raised against me but for me.  This is a case where cabinet has said by its resolution, “We don’t care what the document is.  We don’t care whether it’s our bus tickets to a country cabinet meeting.  We don’t care whether it’s secret, whether it records policy deliberations, whether it’s mere history.  We’re not going to produce anything”.  Now, that is why this case is unprecedented because there has been brought on deliberately a clash between the executive and a legislative chamber of a kind that has never occurred before.

McHUGH J:   Well, that is not right unless you are talking about the Legislative Council, of which there is full history I am naturally unaware, but it certainly happened in the House of Representatives in 1975.  The Whitlam Government directed all its officers called before the Senate that they were not to answer questions about the loans affair and those officers, at least the Solicitor‑General, refused to do so and the matter was eventually referred to the Committee of Privileges, which, dividing I think on party lines, found that there had been no breach of privilege.

MR WALKER:   Yes, but, your Honour, that is well‑known history and Professor Campbell has referred to a deal of material in relation to that in the article which we have copied for your Honours.  My point is in answer to Justice Kirby’s question about what does precedent and practice say about my argument.  Precedent and practice says that there has been an uninterrupted course of deference to orders of the chamber in question in this case - we are not now talking about the summoning of public servants to the Bar or the House to be examined, your Honour, let alone about policy advice.  That is another of the exceptions, supposedly, or another of the matters which may not lie within the power which is not raised by this case.

KIRBY J:   One other possibility of an interpretation of “Let it be 150 years” is that no other chamber has arrested a Minister and removed him from its precincts for this sort of thing.  It is just accepted that it cannot have the documents.

MR WALKER:   Your Honour, there is no material to suggest this acquiescence by chambers in the face of the executive refusing to deliver.  All the material you have, the evidence you have, is acquiescence by the executive in the chamber’s request and it would be quite wrong to speculate that somewhere there is history which was germane to this case, not assembled by Mr Egan below and not pointed to here, which ‑ ‑ ‑

KIRBY J:   You say that if there had been cases of such acquiescence that one could have expected Mr Egan in his position and Mr Katz in his to have brought it to our notice in the light of the examples you have given?

MR WALKER:   And the former Mr Mason in his, yes, and instead all the material is to the contrary effect.  May I hand up, without taking your Honours to it at all, the copy of that article by Professor Campbell referred to in her memorandum.

McHUGH J:   When Senator Gorton was a Minister in the Senate there was a problem over the production of aircraft manifests and I thought that one of the Ministers, perhaps the Minister in the Lower House, refused to produce those manifests.  Eventually they were produced, I think, by Senator Gorton in the Senate, but is that mentioned anywhere in any of the discussion?

MR WALKER:   I do not think that is in Professor Campbell’s article, no.

CALLINAN J:   I think it was Mr Howson was it not, who was the Minister for Air, who appears to produce - - -

McHUGH J:   Yes.

KIRBY J:   It is described in Gerard Henderson’s book “Menzies Child”, the history of the Liberal Party.

MR WALKER:   Your Honours, there is no doubt that certainly in the Australian Parliament, and not only the Australian Parliament, there have been many conflicts.  Practically all of them, politically concluded, by which I mean either the defiance has succeeded or a compromise has been worked out in relation to limited access to the papers.  That is extra parliamentary access.  None of that goes anywhere to demonstrating in relation to a chamber whose history shows this consistent compliance with what are called orders, none of that goes to show that where there does come, not a political solution but a solution that ends up in a tort case that, in law, the House does not have the power it asserted to suspend, or more to the point, to enforce by physical touching the suspension.  None of that political history has ever come to that point and that is the key to the difference between this case being unique and therefore to be frowned upon, and unique and therefore to be seen as, for the first time, the mere political compromise not having sufficed.

McHUGH J:   But the difficulty in your way so far as I am concerned is this, that your agent has committed a trespass against the appellant and to my mind you have to justify that by pointing to some legal authority to do it.  You cannot point to any express rule either contained in statute regulation or a reported decision.  You are forced to rely on a principle of necessity.

MR WALKER:   No, I can point and have pointed to reported decisions.  I have pointed to reported decisions where the House suspended and was held to be justified thus in directing its officers to commit what would otherwise be a trespass to remove.  That is the first set of reported cases to which I have referred.  There is no doubt - - -

McHUGH J:   But purely to protect itself and in terms where - - -

MR WALKER:   Bearing, your Honour, the time and the position, I do not wish to repeat what I have said but the sense in which protection is used is one which your Honour has raised with me and I put everything I can put to justify what I say is protection meaning effectuation by removal of impediment to due course of functions.  Those are the reported cases upon which I rely.  They are reported cases.  There are no reported cases on the other side, none at all.  There are reported cases about the inquisitorial function.  No reported cases on the other side at all.  The most they come up with is the American limitation which has never been accepted here but which, when properly understood, would not have affected the outcome here.

So, for those reasons, in our submission, we have made good that upon which we bore the onus proving the justification.  The fact that for the first time an executive decided, pursuant to the political cabinet decision, to push it rather than to deal with it as had been for the past 150 years, that is the fact which makes this case unprecedented.  It does not rebound our case.  It simply shows that, for the first time, the courts have been forced to decide such a case.

Finally, in relation to cabinet secrecy can we say this:  the courts, with whatever deference to the executive’s high role, the courts preserve a function in relation to the administration of justice, their peculiar sphere, to determine for themselves whether or not the balancing exercise involved should uphold or reject a claim for cabinet secrecy, public interest immunity, Northern Lands Council.  The courts have that.  That is for the administration of justice and the courts themselves declare that they lack the broad scope of policy material, they are bound by rules of evidence and issues brought to them by parties, not decided by the court itself.  Parliament and a parliamentary chamber stands in an utterly different position.  It can take an overall policy view.  It is unlimited in the nature of the material it can rely upon.  It can set its own issues.

How could it be supposed that a parliamentary chamber would have less control over a determination of the proper balance between the public interest asserted by an executive unwilling to produce and the public interest asserted by a parliamentary chamber eager to see?  Why would one give to a parliamentary chamber with its superiority to judge the public interest over a court, less power.

KIRBY J:   There is still the common issue which faces a court and the Parliament and that is that there is a strong public interest in a candour and confidentiality in the discussion within cabinet.

MR WALKER:   Well, one can exaggerate that as members of this Court have observed.  That can be an exaggerated concern.  It is not, with great respect, for a court to say to a parliamentary chamber, “We, the court, better know the public interest than the parliamentary chamber does”.

KIRBY J:   No, but here you have a clash between the legislative chamber and the executive.

MR WALKER:   But the relation between the legislative chamber and the executive, your Honour, is closer than the relation between the court and the executive ‑ ‑ ‑

KIRBY J:   I take that point, but there is still the common phenomenon which, as it were, affects the court’s approach to these matters and ought to affect the parliamentary approach to it.

MR WALKER:   What your Honours are raising by this question is this:  the prospect that one day a man or woman will claim, as a Minister and a Member, to resist a call for orders on the basis that it is a cabinet secret, and the majority of the House rejects that.  These are people, all of whom aspire to be Ministers themselves, no doubt.  That is how close their relation is.  They reject that, and when ‑ ‑ ‑

KIRBY J:   Let us get real, Mr Walker, we have a government and an opposition and an opposition in control of one chamber.

MR WALKER:   That is real and that is not a cause for any cynicism, your Honour, this is politics in its proper sense.

KIRBY J:   Yes, but even in its proper sense, there has to be a place where the Ministers can have debate and discussion in candour without worrying whether or not everything that is said, and every document produced, will turn up in the public forum.

MR WALKER:   Your Honour, they already have to worry because this Court has said that this Court and other courts can rule against such claims.  They already have to worry in courts.  In Parliament there can be no law, particularly pronounced by this Court, that the opposition does not represent a view of the public interest.  Leave aside opposition.  What about a collection of independents ad hoc voting alliances?  In our submission, it cannot be said that the government has some claim to the public interest, nor can it be said that the word of the executive is law.  That is a return, in our submission, to Stuart times.  It is the parliamentary chamber who is better fit.

Finally, one would come up with a prospect of a court ruling that the majority in a parliamentary chamber saying “It’s in the public interest we see this document”, the recalcitrant Minister saying “It’s in the public interest you don’t see this document”, is a court really going to set itself up as paramount to both to say, “No, we unelected are going to say that it was wrong of the majority in that parliamentary chamber to locate the public interest where they did”.  That, in my submission, is a true Article 9 point of transcended importance and it shows that these are matters which ought to be left, as all the cases show, to be determined on the basis that legislators will not abuse their powers.

Finally, in our submission, if there is to be any change to the test at all, the protective element in the sense that has been described in America and sought to be explained by me is one which ought to be preserved.  That is, the power ought to be limited by being required to be focused on the removal of impediments to the due course of the Houses proceeding.  How, if it has to be avoided, is punishment to be avoided?  In our submission, by the expedience of fine and imprisonment which are classically those things which are punishments visited by the courts of law, not being available in relation to a Member where the power ought to be restricted to depriving the Member of those privileges or forms of free conduct which are peculiar to him or her as a Member, taking place in the chamber, speaking, voting, et cetera.  By that means it could be assured that on the face of such resolutions or warrants, if it came to warrants, that there could be an avoidance of punishment.

In short, there ought to be, in the principle of reasonable necessity, the express notion of reticence, that is no more than is necessary to secure removal of impediment to due functioning.  Your Honours, you have asked for the passages from Dr Melbourne’s book on Early Constitutional Development in Australia.  If I can hand that up.

Finally, could I hand up the copy of the resolutions to which I made reference and about which your Honour Justice Gummow made inquiry yesterday.  I make it plain I am not handing this up as evidence in this case, that is evidence going to any issues in this case; they are simply evidence that what is before this Court is before this Court by the permission of and with the approval of the Legislative Council.

KIRBY J:   Perhaps when we receive it we can reserve whether it is by permission of the Council.

MR WALKER:   Yes, that is not a necessary issue in this case.  We accept, and my learned friend, I think, would assert that this is supererogatory.

KIRBY J:   I speak only for myself but I would not want it to be thought that necessarily I take the view that permission is necessary.

MR WALKER:   I understand that and I certainly do not, by handing it up, for a moment suggest that there is any acceptance by this Court that the House’s custom is required by law and I am certainly not suggesting that that is an issue before this Court.

GAUDRON J:   In relation to the documents you have handed up, Mr Walker, could we trouble you for the whole of Dr Campbell’s article in Parliament and Bureaucracy.  We have only got the last pages and could we also trouble you - there is no need to do it at this stage - for the end notes. 

MR WALKER:   Yes, of course you could, your Honour.

GAUDRON J:   It looks as though they may have them.

MR WALKER:   Yes, yes.

GAUDRON J:   Thank you.

MR WALKER:   They are a casus omissus, your Honour.

KIRBY J:   And any other cartoons.

GAUDRON J:   Mr Solicitor.

MR KATZ:   If your Honours please.  We were able overnight to reduce to writing what we want to say in reply about some minor aspects of the matter, matters which are able to be dealt with within a short compass, but it is plain that it will be necessary for us to seek to develop in some detail at least some aspects of a reply and I gather then that the only alternative is to produce a further document in writing.

GAUDRON J:   Yes.  Well, Mr Solicitor, it is a reply, so we trust it will not be too discursive.

MR KATZ:   No more discursive than my usual documents, your Honour. 

GUMMOW J:   That may provoke the observation.

MR KATZ:   We will seek to be as brief as we can.  I would ask the Court’s leave to supply the document by 1 July.

GAUDRON J:   Yes, very well.  Given that we are waiting to see if any further matter ‑ ‑ ‑

MR KATZ:   Further interventions, yes.

GAUDRON J:   ‑ ‑ ‑ should arise out of the 78B notices, that would seem appropriate if you would put your further written reply in by that time and, subject to that and subject to the outcome of the 78B notices, the Court will adjourn and reserve its decision.  The fate of the 78B notices will necessitate the matter being listed before a single Judge in Sydney at some time appropriate to counsel in the near future.

MR KATZ:   If the Court pleases.

GAUDRON J:   Yes, but on that basis the Court will now adjourn.

AT 10.18 AM THE MATTER WAS ADJOURNED