Egan v Willis

[1998] HCATrans 211

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 TUESDAY, 16 JUNE 1998, AT 10.19 AM

Copyright in the High Court of Australia

MR L.S. KATZ, SC, Solicitor-General for New South Wales:  If your Honours please, I appear with my learned friend, MR M.J. LEEMING, for the appellant.  (instructed by I.V. Knight, Crown Solicitor for New South Wales)

MR B.W. WALKER, SC:   May it please your Honours, I appear with my learned friend, MR P.T. TAYLOR, for the respondents.  (instructed by Mallesons Stephen Jaques)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia:   May it please your Honours, I appear with my learned friend, MR G.J. PARKER, for the Attorney‑General for South Australia.  (instructed by the Crown Solicitor for South Australia).  Your Honours, we would say that we are entitled to intervene pursuant to section 78A of the Judiciary Act.  In the alternative, we would seek leave to intervene and refer to and rely upon the affidavit of Lucinda Byers filed herein on 2 June 1998.

GAUDRON J:   Were notices given under 78B?

MR SELWAY:   Yes, your Honour.

GAUDRON J:   We will see what the parties say, Mr Solicitor.

MR SELWAY:   If it please your Honour.

GAUDRON J:   What do you say, Mr Solicitor for New South Wales?

MR KATZ:   If leave is required, we do not oppose the grant of leave, your Honour.

MR WALKER:   That is also our position, your Honour.

GAUDRON J:   Thank you, Mr Walker.  If leave is required, Mr Solicitor for South Australia, I think you have it.  Yes, Mr Solicitor for New South Wales.

MR KATZ:   If the Court pleases.  Your Honours, the issue which arises for a consideration in this appeal is one relating to the powers of the Legislative Council of New South Wales, and in particular the question whether or not that Council has a power to compel the production of documents to it.  It is accepted on all sides, I think I am able to say, that the Council ‑ ‑ ‑

GAUDRON J:   Well, is that the right question?  Perhaps we ought to start right there, should we?  Is that the right question, the power to compel production of documents.

MR KATZ:   Yes, in my respectful submission, it is.

GAUDRON J:   Why is it not formulated simply as a power to request its Member to produce documents or demand its Member to produce documents and in the event that documents are not then produced, to take action?

MR KATZ:   I am sorry, I did not hear how your Honour began what you just said.

GAUDRON J:   Well, a question to request or even demand of one of its members to produce public documents and thereafter, if the documents are not produced, to require his suspension.

MR KATZ:   Yes.  I have framed the question in the general way in which I have simply by way of introduction and, in truth, later in my own written submissions I deal with such questions as those persons against whom such power may be exercised on the assumption it exists and as well those documents in respect of which the power may be exercised on the assumption that it exists. 

Those are matters that are dealt with in paragraphs 48 and following of the written submission but ultimately, as your Honours will see, I am content to deal with the matter on the basis in which it was dealt with by the majority of the Court of Appeal and that is to say - I am now directing attention to paragraph 52 of the written submissions - content to deal with the matter on the basis that the question is whether there exists an implied power in the Council to compel the production of documents only from its own Members and we would submit that even if the power were to be hypothetically confined in that way, nonetheless it would not be appropriate to infer the existence of such a power in the circumstances.  So it is not a question which I will not deal with, your Honour, if I can put it that way.

GAUDRON J:   Yes, but my question was also directed really to the question why is it not simply a question of power to suspend a person who does not comply with a request or demand?

MR KATZ:   Yes.  I think this is the way in which my learned friend, the Solicitor‑General for South Australia, wants to put the justiciability question.  One answer which I may give now in anticipation of what I, no doubt, will have to say in response to his justiciability submissions is this:  that the Legislative Council is not a court, not a body with court‑like functions; certainly, in no way to be equated to a superior court of unlimited jurisdiction.  If one were concerned with orders made by a superior court of unlimited jurisdiction then there would be no scope for someone to refuse to obey the order and attack its effectiveness or lawfulness, or validity - whatever word one wants to choose - afterwards.

But certainly, where one is concerned with a body like the Legislative Council, one could not lawfully be suspended from the Council for disobedience to an order which itself had not been lawfully made.  So, in order to determine the lawfulness of a suspension on the basis of disobedience to an order, one must first determine whether or not that anterior order was itself lawfully made.  That is the way in which the matter was treated by the parties below, and treated as well by the Court of Appeal, and in my respectful submission, properly so.

KIRBY J:   Mr Solicitor, I should have put on the record at the beginning of the proceedings that I know the first respondent and have been his guest at the Parliament.  I do not feel in any way embarrassed and I certainly intend to continue to sit but I think that I should say that.

MR KATZ:   Thank you, your Honour. If I may then, simply by way of introduction, continue to treat the question on the basis as I began to do, that is globally, as asking simply the question whether or not there is a power to compel the production of documents, I was saying that it is not suggested, as I understand it on any hand, that there is any express power conferred on the Legislative Council to compel the production of documents to it, whether under the New South Wales Constitution Act or under any other statute, and so the question is to be dealt with on the basis of the drawing of an inference as to the existence of such a power.

In paragraph 4 of our written submissions we state what we understand to have been the position for the last 150 years both in decisions, first of the Judicial Committee of the Privy Council and then latterly, of this Court.  The position is this, that when one is concerned with the question of implied powers of a legislative chamber, leaving on one side the British Houses of Parliament, one asks oneself the question whether the existence of this power which is put forward as an implied power is reasonably necessary for the proper exercise by the chamber of the functions conferred on it by its constitutive instrument and if the existence of the power is determined to be reasonably necessary for the proper exercise of those constitutional functions, then it is held that the power exists by implication.

GUMMOW J:   Is there anything in the New South Wales Constitution Act which requires Ministers to be Members of either House?

MR KATZ:   No, there is not, your Honour.

GUMMOW J:   There is nothing that approximates section 64 of the Constitution?

MR KATZ:   No, your Honour.

KIRBY J:   But the New South Wales Parliament is provided for, and contemplated by, the federal Constitution and it must be such a Parliament as can perform the functions including those that relate to the filling of the Senate vacancies, and it is therefore part of a great scheme of the Constitution arrangement and a lot of the law that preceded the establishment of the States, and of the Parliaments of the States, may need careful re-examination in the light of the fact that the Parliament of New South Wales, like the Parliament of every other State, must take its place in the scheme of the Australian Constitution.

MR KATZ:   I accept that entirely, but my submission is that that does not have a material impact on the question with which we are here concerned, that is to say an implied power to require the production of documents.

KIRBY J:   Well, it may.One of the matters that was worrying me was that old law about calling into question the proceedings in the Parliament. Now, that may be appropriate to a legislature like that of the United Kingdom which is sovereign, but may not be appropriate to the legislature of a State of the Australian Commonwealth which must work within, and subject to, the justiciability that is provided by our Constitution, because a preliminary question rises as to whether we should be, in a sense, getting into the issue at all of what Parliament has done.

MR KATZ:   Yes.  Again, in the same way that I had to answer Justice Gaudron a moment ago by saying I wanted to anticipate something I was to say in response to my learned friend, Mr Selway’s, submissions on justiciability, I would have to anticipate what I wanted to say about that in responding to what your Honour just said about Article 9 of the Bill of Rights.  But certainly our primary submission on that aspect of the matter is that accepting the rule, which, as I say, has been accepted for the past 150 years, that to determine whether or not there exists an implied power in a body like the Legislative Council, one is required to examine the reasonable necessity for the existence of such a power, one is inevitably drawn into, in determining such questions, an examination of speech and debates, or proceedings in Parliament, to quote the words from Article 9.

KIRBY J:   I assume you would be the proper person to raise any objection on the part of the Parliament - or, would you be ‑ ‑ ‑

MR KATZ:   I do not think, in this guise, I would be, your Honour, as I am representing a Member of the Executive Government. 

KIRBY J:   No, that would be Mr Walker.

MR KATZ:    I suppose it would fall to my learned friend, Mr Walker, more appropriately.

KIRBY J:   I do not see, in his submissions, any objection to the Court proceeding, in so far as doing so may call into question proceedings in the chamber.

MR KATZ:   I can certainly answer that question at the level at which it is expressly put, no there is nothing in his submissions on that point; whether he wishes to say something later ‑ ‑ ‑

KIRBY J:   You positively want us to have a look at what happened in the ‑ ‑ ‑

MR KATZ:   Well, my impression was that he did, but obviously I cannot ‑ ‑ ‑

KIRBY J: My only point was that I think a lot of the law of the 19th century or the previous law on parliaments just has to be reconsidered in the Australian context in the light of the fact that the State Parliament is a part of the federal Constitution.

MR KATZ:   Well, if I may repeat my position about that, I accept that as a proposition in its generality, but deny its applicability ‑ ‑ ‑

GUMMOW J:   It has a specific application here.  What is the Executive Government referred to in section 119 of the Constitution?  Is that an Executive Government of a State involving the doctrine of responsible government, whereby the Minister is responsible to the legislature, such as your client?

MR KATZ:   I think the unexpressed assumption in ‑ ‑ ‑

GUMMOW J:   The reason why I mention it at this stage, Mr Katz, is that what was going on in the Bahamas in 1944 is, in a way, not entirely apposite, because that is not the legislature involving responsible government, as we understand it.  It was a colonial body of some sort.

MR KATZ:   I have to defer to your Honour’s superior knowledge about the position in the Bahamas in 1944.  I attempted to discover whether or not responsible government was in force in the Bahamas at that time and was quite unable to do so.

KIRBY J:   Is that where the imperial authorities sent the Duke of Windsor to be the governor?

MR KATZ:   Yes it is, and indeed, in the materials ‑ ‑ ‑

KIRBY J: Sounds though it was not fully responsible, in our sense, of our Constitution.

MR KATZ:   When I came to refer to the law officer’s advice about the Bahamas, I was to say to your Honours that I had not been able to discover whether or not responsible government was in operation in the Bahamas at the relevant time.

GUMMOW J: All I think that is being said to you is, when you say the last 150 years of imperial administration, that is not the full picture, as the full picture has to involve the evolution, and perhaps the maintenance, as an imperative of a system of responsible government, consistent with the structure of the Constitution as a whole in the States.

MR KATZ:   Yes.  Could I remind your Honour of the cases upon which I rely from the 19th and 20th century and, in particular, of the dates at which they were decided.  It is true that the foundation case, Kielley v Carson, was decided before responsible government was part of the general system of government in all of the British colonies, but all of the subsequent cases, Fenton v Hampton, 1858, Doyle v Falconer 1866, Barton v Taylor, about New South Wales itself, 1886, this Court’s decision in Willis v Perry 1912, the Supreme Court in Equity in New South Wales 1969 ‑ ‑ ‑

GUMMOW J:   I realise all of that, but you said 150 and you start off with the Supreme Court of Van Diemen’s Land, that is all I am putting to you.

MR KATZ:   No, in fact I start off with the Judicial Committee of the Privy Council, your Honour, on appeal from Newfoundland.  As to the question of Executive Government referred to in section 119, I was beginning to say to your Honour that there might well be an unexpressed assumption there that the Executive Government being referred to is not the Crown representative in his or her own person, but rather the Crown representative with the advice of the Executive Council, in particular of New South Wales.

GUMMOW J:   And no more?  Just the Executive Council?

MR KATZ:   At a formal level, no; of course, we all know that the Executive Council merely is a cipher for the decisions made by the cabinet, made by the ministry, and so, in truth, it would be assumed when section 119 refers to the Executive Government that we were speaking of the ministry’s request.

KIRBY J:   “Cipher” is not entirely correct.  The Crown or the Crown’s representative still has the traditional powers to advise, encourage and warn.

MR KATZ:   Yes, I accept that.

KIRBY J: But I think the point that is being made to you is that a lot of the cases that you have referred to are cases in colonial times or even in Australian courts before a full appreciation of the implications from our Constitution of the fact that the State Parliaments are there as part and parcel of a democratic polity of Australia and they have to be construed, and the powers they have and their relationship with their executive governments have to be construed as part of a system of government for the Australian people, federal and State, which includes democratic accountability and a lot of the old law has to be very carefully reconsidered, even in ways that perhaps did not happen 20 years ago as the implications from the Constitution require.

MR KATZ:   Your Honour, for a third time I accept that.

KIRBY J:   As long as you do.

MR KATZ: Yes, I do with the qualification that I have given on the first two occasions. Now, your Honours, I was asked and I am sorry I do not recall which one of your Honours it was precisely who did ask me this question - it might have been your Honour Justice Gummow - the question about the necessity for Ministers to be Members of Parliament as occurs in the Commonwealth Constitution. In the appeal book at page 43 his Honour the Chief Justice makes explicit reference to the fact at line 19 that the Constitution Act does not refer to the conventional requirement that Ministers be chosen from amongst the Members of one or other of the Houses of Parliament.

GUMMOW J: I stop at the word “conventional” that is all. It may be more than that. It is in the structure of the Constitution..... as a whole.

MR KATZ:   I am sorry, I did not hear what your Honour said.

GUMMOW J:   It may be more than conventional.  It may have to be more than conventional.

MR KATZ:   If it is to be more than conventional, one must find in the terms of the Constitution Act some provision which requires it, either in terms or by implication.  If it is not so found - and in my submission it is not - then the requirement must be a conventional one.

GAUDRON J: Might a convention existing at 1901 have been transformed by section 106 of the Constitution?

MR KATZ: I am sorry, your Honour, I am obliged to say I did not bring a Commonwealth Constitution with me since this was only a case about the New South Wales Constitution but ‑ ‑ ‑

KIRBY J:   Yes.  Well, that was the point I was trying to make to you.

MR KATZ:   Yes, I understand that, your Honour.

KIRBY J:   You have approached the matter in that way.

MR KATZ: But, your Honour, if I may say to your Honour the presiding Judge, section 106 is preserving the State Constitution. Admittedly I say subject to this ‑ ‑ ‑

GUMMOW J:   No.  There were no States.

MR KATZ: I am sorry, it is expressed in a proleptic way. I will just turn up a copy of section 106, if I may, just for a moment.

GAUDRON J:   My question is, if it were a constitutional convention in 1901, has it been hardened into something more by 106?

MR KATZ:   Well, certainly my submission would be that the terms of 106 are to the contrary.  I do have a copy of it now, and as I have said, it does refer proleptically to the State Constitution.  It says:

The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth -

well, of course, there were no State Constitutions at the establishment of the Commonwealth, and so it must plainly be referring to the colonial constitutions. But, one is told is that the State Constitution is to continue, subject, of course, to the Commonwealth Constitution, and it would therefore be necessary to find something in the Commonwealth Constitution itself, which imposed upon the State and its Constitution ‑ ‑ ‑

GUMMOW J:   Why do you assume the State Constitution referred to in 106 is to be found solely in writing?

MR KATZ:   I do that because this Court has done that, for instance, in McCauley’s Case, and there rejected the notion that the Constitution of the State of Queensland included anything else other than the 1859 Order in Council, and the provisions of the document described as the Constitution Act of Queensland, and specifically excluded from the notion the Constitution of the State of Queensland for the purposes of 106, The Supreme Court Act of Queensland.

Chief Justice Griffith did that, in terms, in McCauley’s Case. One other of their Honours, I think it may have been Justice Barton, did so as well. And in the Privy Council, although the decision was reversed, their Lordships said that they - I am sorry, I may be going too far in what I am saying now, but my recollection is that they referred with approval to the approach taken by Chief Justice Griffith, the section 106. It is really for that reason, not only the reason of authority, but recognising that the very document in which the section appears is creating, itself, a capital “C” Constitution, that one naturally infers that the reference to the Constitution of a State is a reference to the various Acts which were the relevant Acts. The New South Wales Constitution Statute containing the Constitution ‑ ‑ ‑

KIRBY J: I suppose an argument in favour of that is that otherwise there would be a nebulous collection of principles and common law and prerogative which would not be easily defined, which do not fit comfortably into the Constitution, and which yet would be provided for until altered. It would be hard to know exactly what it was.

MR KATZ:   Yes, and of course the effect of 106 is to require that to be continued, at least until altered in accordance with the Constitution of the State.  There seems to be some sort of implication that these are rules which are capable of discernment in a simple fashion, that is, by looking at a statute.

I had referred to the approach which has been taken to the question of the implication of a power on behalf of the Legislative Chamber, the test of reasonable necessity for the proper exercise of the functions conferred on the body by its constitutive instrument, and we mention in paragraph 5 of our submissions that the foundation cases, Kielley v Carson, which was decided by the Judicial Committee of the Privy Council in 1843.  May I take your Honours, just for a few moments, to the advice of the Privy Council. 

One was here concerned with the Legislative Chamber which had been created by the exercise of the prerogative rather than by the enactment of a statute.  Baron Parke, your Honours will see - if I may give your Honours the English Report page references rather than the nominative report references for now.  Your Honours will see towards the bottom of page 232 that it was Baron Parke who gave the advice on behalf of the members of the Judicial Committee, and all of the members being referred to are set out at the bottom of page 225 in that report.  There were, in fact, 11 of them.  I may mention, as well as the fact that Baron Parke was responsible for the advice that among the judges who participated was Lord Chief Justice Denman.  That has significance in another aspect of the case.

First of all, if I could ask your Honours to go to page 234 towards the bottom, where it is said about a dozen lines up:

The whole question then is reduced to this; - whether by law, the power of committing for a contempt, not in the presence of the Assembly, is incident to every local Legislature.

The Statute Law on this subject being silent, the Common Law is to govern it; and what is the Common Law, depends upon principle and precedent.

Their Lordships see no reason to think, that in the principle of the Common Law, any other powers are given them -

that is to say the Assembly -

than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute.  These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it was competent for the Crown to perform.  This is the principle which governs all legal incidents.

Then his Lordship refers to a Latin tag which states the proposition which has just been set out.  Could I ask your Honours also, to go to page 236 in the penultimate paragraph where it is said, beginning in the middle of the fourth line:

the House of Assembly have not the power contended for.  They are a local Legislature, with every power reasonably necessary for the proper exercise of their functions and duties, but they have not what they have erroneously supposed themselves to possess - the same exclusive privileges which the ancient Law of England has annexed to the House of Parliament.

So there is the reference to the reasonable necessity test in terms.

McHUGH J:   His Lordship changed his terminology from the statement of principle earlier in the judgment.

MR KATZ:   Yes, I accept that that is so.

McHUGH J:   On the special leave application in this case I indicated my scepticism about such a test as a reasonable necessity.

MR KATZ:   I remember that, your Honour.

McHUGH J:   It is almost a contradiction in terms.

MR KATZ:   Yes.

McHUGH J:   Which is the principle which you expound:  that which is set out at page 234 of the report or that which is set out at page 236 of the report?

MR KATZ:   I accept that the proper way to formulate the test is one of reasonable necessity.

McHUGH J:   Then “necessity” must have some special meaning.  Does it mean something that tends towards efficiency or practicality?  I mean, something is either necessary or it is not necessary.  I do not understand.

MR KATZ:   I do not myself wish to be heard to suggest that - I am sorry, may I go back to page 234.  Your Honour sees at page 234 that there is a reference to “necessary to the existence of such a body”.  That is one possibility.  Another possibility is necessary to “the proper exercise of the functions which it is intended to execute”.  I certainly do not suggest that the test is only necessity “to the existence of such a body”, so that if the body itself simply could not exist in the absence of the implied power, one infers it and not otherwise.  I am content to accept that there is a further type of necessity on which reliance may be placed, namely, necessity for “the proper exercise of the functions which it is intended to execute”, I say ‑ ‑ ‑

McHUGH J:   Well, the term is often used in a diluted fashion, for example, in section 51 of the Income Tax Act when we talk about outgoings necessary for the production of assessable income.

MR KATZ:   I do not suggest that we are talking here ‑ ‑ ‑

McHUGH J:   It means conducive.

MR KATZ:   I am not suggesting here that we are talking about a logical necessity.  I am content to proceed on the basis that we are speaking of a practical necessity.

McHUGH J:   Is it reasonably conducive?

MR KATZ:   Yes, I would accept that as well, but at the same time relying on what we have to say at length later about how reasonable necessity must be measured against adverse effects upon the liberties and interests of others and upon the fundamental rights, freedoms and immunities of others.  It will be necessary to come back to this aspect of the matter and deal with it at some length.  It is true what your Honour says that at page 234 the word “reasonable” does not appear and at page 236 the word “reasonable” does appear.  I am content to proceed on the basis that the qualifying epithet “reasonable” is appropriate from the outset and in fact in later decisions of the Privy Council the matter is expressed that way in terms - that is to say in terms of a reasonable necessity.

GAUDRON J:   We are dealing with the common law, Mr Solicitor, are we not, here?

MR KATZ:   We are dealing with that aspect of the common law which relates to the construction of instruments.

GAUDRON J:   Are we?

MR KATZ:   Yes, in my submission.

GAUDRON J:   The common law apparently was a question of necessity or reasonable conduciveness but my question is why do we look to - when we talk about the common law and matters of implication, surely we must be looking at least, of New South Wales, as to the proper exercise of their functions and duties as a constituent element of the Commonwealth of Australia.

MR KATZ:   I do not quibble at that, your Honour.

GAUDRON J:   In which there is, at least, some notion of representative democracy; a base principle of representative democracy.

McHUGH J:   I notice your hesitation.  Justice Gaudron’s questions are starting to unsettle me a little.  It may be that the Attorney-General for the Commonwealth should be aware of the direction the argument is starting to take.

MR KATZ:   Of course they are, your Honour.

McHUGH J:   These sorts of issues have not been flagged either in the 78A notice, have they, or in the courts below?

MR KATZ:   I must confess the 78B notice was drafted on the basis that a question under the New South Wales Constitution arose. That might involve a question under the Commonwealth Constitution and it therefore is appropriate to give the notice but there was not any more information given, I suppose, and I think, in fact, Egan v Willis had been reported at that stage and a reference was made to the reasons. I would answer Justice Gaudron in the same way in which I have answered Justice Kirby on a number of occasions now. Of course New South Wales is part of the Commonwealth but I ask rhetorically, “Tell me what function it is which New South Wales performs under the Commonwealth Constitution which has an impact on the question whether or not one of its legislative chambers should have an implied power to compel the production of documents to it?”. Until I hear that from the respondents, I ‑ ‑ ‑

McHUGH J: What about section 15 of the Constitution or section 7 in terms of representation in the Senate? If you are going to judge this question of reasonable necessity against the background of the federal Constitution, questions may arise as to whether a House of Parliament could compel production of documents by a Commonwealth department, for example.

HAYNE J:   Or the example earlier given at section 119 and calling on the military in aid of the civil power.

MR KATZ:   Perhaps if I deal first with the question of whether the power would extend to requiring production of documents by some Commonwealth emanation.  I have, at the end of the day, been prepared to concede that as difficult as I find it to accept the logic of it, the case is appropriate to be dealt with on the basis upon which it was dealt with by the majority of the Court of Appeal.  That is to say we ask ourselves the question as to whether or not there should be an implied power to compel members of the Council to deal with it.  I accept immediately that Chief Justice Gleeson’s approach was radically different from that and his approach would, perhaps, leave open the possibility of making such demands against the Commonwealth.  Then it would appear that all sorts of other considerations would come into play.  It would not, with all respect, appear to me to be necessary to introduce those into the question.

McHUGH J:   I am not sure about that, Mr Solicitor, because it depends at what level you formulate the governing principle and, if you formulate it at a particular level, it may be so wide that it would encompass private citizens’ documents, documents of other States, and of the Commonwealth.

MR KATZ: I must confess, I had not given a moment’s thought to emanations of the Commonwealth as possible subject to this power; it was rather foolish of me not to. I might as well get some benefit out of the Commonwealth Constitution for a change.

KIRBY J:   You were present, were you not, during the argument in Levy?

MR KATZ:   Yes, I was.

KIRBY J:   And you know that a lot of these things were debated in Levy.  I mean, that was one of the main points that Mr Levy was making, that certain things could not be done by the Victorian legislature because the Victorian legislature was part of the system set up by the federal Constitution. So, it is discussed in the decisions in that case. Everybody is on notice of it.

MR KATZ:   May I simply expose my approach to the matter and, perhaps, then, attempt to move on, if your Honours are disposed to permit me to do so.  If one were to consider the question as though New South Wales were not part of the Federation one would, in my view, come to an answer adverse to the powers of the Legislative Council.

GAUDRON J:   Why?  If one proceeds on that basis for the moment, you must identify some function, I suggest, which is critical to the existence of this power.  So, we are really talking backwards.  What functions do you acknowledge are possessed by the Upper House in New South Wales?

MR KATZ: Your Honour, that is dealt with in paragraphs 11 to 23 of our submissions. Presently I am struggling to get to paragraph 5. Clearly I have to deal with this question, and I will do so. But may I, perhaps, finish what I was suggesting about the significance of the Commonwealth Constitution? My approach is to say that, if one were to examine the matter in the absence of any influence of the Commonwealth Constitution, one would come to a view adverse to the existence of this implied power, and then it would be open to my learned friend, if he cared to do so, to draw attention to some aspect of the Commonwealth Constitution which leads to a different answer than would be given if this were a matter examining the State Constitution alone.

If he can persuade your Honours that there is some function which a legislative chamber of New South Wales is required to perform under the Commonwealth Constitution - that is, expanded the powers it would otherwise have - then I will deal with that argument on its merits if and when it arises. But presently, and I confess this is a failing, I had really focused on this as a question of New South Wales law, myself unable to see any specific function for a chamber in New South Wales under the Commonwealth Constitution, which would lead to a different answer than would otherwise be given.

McHUGH J:   Well, to take section 15 of the Constitution to which I referred, supposing that the question arose about a vacancy and the Parliament of the State was required to exercise the function conferred by section 15. If we take it for granted that the States will know which party the retiring or deceased Member....., but there may be other issues involved. Parliament may - State House may want to get extra information.

MR KATZ:   Well, I have identified, in focusing again on paragraphs 11 to 23 of these submissions, an acknowledged function of the Legislative Council, the participation in the enactment of statutes.  There is a debate as to the existence of some further function, what Chief Justice Gleeson referred to as a constitutional function of scrutinising the workings of the Executive.  If I can anticipate our position on that matter, we deny the existence of such a function, but ultimately say that whether the Council have one function, that is to say, legislating, or two functions, legislating and scrutinising the Executive, still a proper application of the reasonable necessity test leads to a conclusion adverse to the existence of this implied power.  If your Honour Justice McHugh wishes to add to the collection of functions, additional functions, my submission remains the same ultimately, and that is to say, if there is some further function of that sort, still the application of the reasonable necessity test leads to an outcome adverse to the position of the Legislative Council.

Your Honours, I had mentioned Kielley v Carson as the foundation case in these matters, and in paragraph 6 of our submissions we mention a series of other cases which have taken the same approach - a number of others in the Privy Council during the 19th century and one in this Court in the 20th century.  If I may, I would like to draw attention, specifically, to two of the cases for this reason, that is to say Barton v Taylor, referred to in paragraph 6, an 1886 decision the Judicial Committee, and Willis v Perry, a 1912 decision of this Court, and I seek to draw attention to these cases in particular, because as I think I said earlier, these were cases involving directly one of the New South Wales legislative chambers, the Assembly, and first the Judicial Committee and then afterwards the High Court explicitly applied to one of the New South Wales legislative chambers, and in my submission there would be no reason to treat them differentially in this respect, applied to one of the New South Wales legislative chambers this reasonable necessity test.

In paragraph 8 we spend some time focusing on the particular constitutive of instrument, which was being construed in Barton v Taylor, and, with respect, I think it is important to remind your Honours about the circumstances which were applicable in Barton’s Case.  In 1886, the New South Wales Constitution was contained as a schedule to an imperial statute.  The circumstances under which the New South Wales Constitution came to find itself as a schedule to an imperial statute are these:  one had, first of all, the Australian Constitutions Act 1850, which authorised the legislative bodies of the then Australian colonies to develop their own constitutions.  I am speaking now about section 32 of the Australian Constitutions Act 1850, and New South Wales, taking up the invitation in section 32 of the Australian Constitutions Act 1850, passed a bill which was then reserved for the royal assent.

We mention in paragraph 8 that the reserve bill can be found in the New South Wales statute books with a designation as if it were actually a statute.  It is not easy to understand why New South Wales has followed that practice, but ‑ ‑ ‑

GUMMOW J:   But it is treated as repealed, is it not, in the first schedule of the Constitution Act 1902? It lists a number of statutes that are repealed and that is simply one of them.

MR KATZ:   Well, with respect, the fact is it was not ever a statute.  What one had was a reserved New South Wales bill and then one had an imperial statute following that, which scheduled the reserved bill with certain omissions and authorised the sovereign to assent to the bill in the schedule with various omissions and so, in truth, the thing called “17 Vic No 41” was never a statute of New South Wales, never became one.  I will come, if I may in a moment, to what Sir Owen Dixon had to say in Clayton v Heffron about the 1902 Act, and perhaps, if I may, then I will come back to that point, but all I am seeking to establish now is that the New South Wales Constitution, in 1855, was, in terms, part of an imperial statute, but the circumstances under which it came to find in itself an imperial statute were these, that the local Council had prepared a bill and that bill, with minor modifications ‑ ‑ ‑

GUMMOW J:   But, the local Council was not a fully representative body, was it?

MR KATZ:   No, it was not, and the whole point of the Australian Constitutions Act of 1850 was to permit the change from partly representative to fully representative bodies. But the Constitution, that is to say, the schedule to the Imperial Act of 1855, was in truth a New South Wales creation and, with minor modifications, it found itself as part of an imperial statute and, in that sense, it may be equated, for instance, to the Commonwealth Constitution, which was developed within Australia ‑ ‑ ‑

GUMMOW J:   Yes, but with popular participation.

MR KATZ:   Yes, that is so, and there was popular participation as well in the development of the New South Wales Constitution Bill.

GUMMOW J:   Limited.

MR KATZ:   Yes, certainly not constitutional conventions, if that is the distinction which your Honour is drawing, accepted immediately. But if I may just remind your Honours of some of the matters which we refer to in paragraph 8 of our submissions, first of all there is the description of the New South Wales Constitution by the Colonial Secretary. His Lordship there described the Constitution in the imperial statute as being a measure:

the responsibility for the introduction -

of which -

will rest, as it ought to do, with the Members of the Council, by whom it was, in all substantial points, prepared and discussed.

We refer also to what acting Chief Justice Barton had to say in Williams Case, about how it was:

the people

of New South Wales -

themselves, through their legislature -

who -

framed a Constitution...

GUMMOW J:    That is just not right.

MR KATZ:   Well, it may be said that it is ‑ ‑ ‑

GUMMOW J:   It is gilding the lily with about three layers of paint.

MR KATZ:   Your Honours, the modifications which were made to the locally‑produced Bill were minor in their character and have no relevance for present purposes.

GUMMOW J:   It was not through the representatives of the people.  It was not a body acting as representatives of the people.  That was the whole point:  to achieve a situation where that would be so in the future.

MR KATZ: Your Honour will recall that the body which formulated that Constitution had a majority of representative members.

GUMMOW J:   But with what sort of franchise?

MR KATZ:   The typical franchise of 1850, your Honour, no question about that, in the same way that the constitutional conventions in 1890 in Australia were selected by a radically limited electorate.

GUMMOW J:   Yes, but there was a referendum eventually.

MR KATZ:   Yes, and we know as well the size of the electorate for the referendum.

KIRBY J:   And women only voting in Western Australia and South Australia.

MR KATZ:   My recollection was only South Australia but I could be wrong about that, your Honour.  Certainly there were property qualifications and Aboriginals were excluded and all sorts of other qualifications.

GAUDRON J:   But in any event they were talking about colonial legislatures in these cases.

MR KATZ:   Yes.  Well, certainly in Barton, yes.

GAUDRON J:   Yes, which were said, if you look at page 203 of Barton v Taylor, that they were to be equated with bodies - that they were:

(although of inferior importance and dignity to bodies constituted for purposes of public legislation), than from the British Parliament -

Why do we continue to apply those notions now?  On no view are the State Parliaments colonial legislatures.  It may be that these notions have prevented them from developing usages such as have developed in the British Parliament, but why do these notions have any relevance?

MR KATZ:   They have relevance for this reason, your Honour.  One is concerned with a statute which has - and I am speaking now of the present day New South Wales statute of 1902 - one has a statute which has express provisions in it.  An attempt is made to tease out from that statute implied powers.  One must have some rule of construction for determining whether or not the powers are to be inferred irrespective of the circumstances in which the rule of construction was first applied, that is to say, for instance, to a prerogative legislative chamber as it was in Kielley v Carson, irrespective of the fact that it was afterwards applied to statutory legislative chambers which had that relatively limited character, still the rule of statutory construction is an entirely appropriate rule to be using irrespective of the character of the present day legislative chambers in New South Wales, that is to ask oneself whether the existence of the implied power is reasonably necessary for the proper exercise of the functions which it is required to perform under its constitutive Act.

GAUDRON J:   Well, I wonder why, in a body such as the Legislative Council, it should not have an implied power to require its Members to behave, providing it is in accordance with law, in any manner directed by a majority of that body.

MR KATZ:   I will come to the reasons for which we submit it should not have such power later in my submissions.  First, I may say we seek, ourselves, to derive analogical support from decisions taken with respect to the powers of legislative chambers.  We seek to rely, as your Honours will see later in our submissions, about the position of Royal Commissions, we seek to rely specifically on the view taken by the New South Wales Parliament as to the existence of these relevant powers in its own constitutive chambers.  Finally, we rely generally on what we say is the appropriate principle of statutory construction; one which has been applied in this Court in other contexts in recent times, including, most prominently, by your Honour.

Now, the position which appears to have obtained in 1886, when the Privy Council was deciding Barton v Taylor, certainly cannot be said to have been the position under which this Court laboured when it decided Willis v Perry in 1912.  I have been speaking specifically about the relevant constitutive instrument at the time of Barton v Taylor.  Can I switch, please, to the ‑ ‑ ‑

GUMMOW J:   Before you do that, Mr Solicitor, the imperial statute of 18 and 19 Vic, is that is still in force, is it?  It has never been repealed?

MR KATZ:   18 and 19, Chapter 54?

GUMMOW J: Yes, to which the New South Wales so‑called Constitution was a schedule.

MR KATZ:   We have the numbered sections of the imperial Act, and we have the relevant schedule.  The schedule has been repealed by the 1902 New South Wales Constitution ‑ ‑ ‑

GUMMOW J:   Yes, but that was in exercise of a power conferred by the imperial Act, was it not, upon the local legislature?

MR KATZ:   Well, it is a question - and I was going to come to that - Chief Justice Dixon talks about it in Clayton v Heffron.

GUMMOW J:   All right.

MR KATZ:   But if your Honour is asking me whether the numbered sections which preceded the schedule were ever repealed, I must confess I do not know the answer to that question.  It could not have happened before 1902.  Whether it has happened since, I am sorry, I simply cannot say.  But I was turning now, if I might, to Willis v Perry, decided in this Court in 1912, at a time when the New South Wales Constitution was no longer a schedule to an imperial statute, but was rather a locally‑enacted statute and, in Willis v Perry, the question was one of an implied power or otherwise in a presiding officer of a legislative chamber of the New South Wales legislature and it was, in truth, the 1902 Constitution Act which was being construed.

Chief Justice Griffith, at 597 in the report, about seven or eight lines down, discusses Barton v Taylor and, with citations from Barton v Taylor and from Doyle v Falconer, concludes, at page 598, about 10 lines down:

I think that this judgment authoritatively expresses the law applicable to the present case -

Justice Barton was of the same opinion, and Justice Isaacs likewise, and Justice Isaacs specifically referred, at page 600, to the Kielley v Carson test which was laid down by Baron Parke. So, this was a time when this Court was, in truth, construing a New South Wales statute. It was post the federal Constitution, obviously. May I say something about the circumstances under which New South Wales came to have a Constitution of its own making, rather than a Constitution which appears in an imperial statute?

McHUGH J:   Before you do that, can I ask you what you say about this.  I have to say in your favour that for a long time I perhaps have laboured under the delusion that the Houses of the Parliament only had such implied powers as were protective and self‑defensive and that they had no aggressive powers at all.  I think any reading of the various cases to which you rely on support that view.  The Earl of Selborne made it very plain in Barton v Taylor that what was necessary in a reasonable sense were only those powers that were protective and self‑defensive.  The same view was taken up in Chief Justice Griffith’s judgment in Willis.

But may not the question be whether, having regard to the change that has come over the State Houses of Parliament this century, that we really have to look at that whole matter very differently and that these cases really have little to do with the situation, the choice being:  do you simply apply these cases, in which case arguably you win, or do we really have to look at the whole matter afresh and in effect jettison these cases as dealing with another problem?  Most of them arising in a trespass forum.

MR KATZ:   As does this one.

McHUGH J:   Yes.

GAUDRON J:   That is the legal ‑ ‑ ‑

MR KATZ:   Pigeon-hole.

GAUDRON J:   - - - pin on which the argument is hung, as it were.  If you look at, for example, McGinty, I think in all of the judgments in McGinty there is this acknowledgment of the development of democracy over this century.  Is that not something that is to be taken into account when you are considering what are the powers, albeit implied powers, of a parliamentary chamber?

McHUGH J:   It may be, if I could just add, that the balance is not between what is reasonably necessary and what is not so much as to whether or not, having regard to the rule of law, one House of Parliament can have an implied power of a coercive nature either against citizens generally or against its own Members.

MR KATZ:   Your Honour, that is the position which we seek ultimately to develop by reliance on the principles which have been applied in this context and in others.  But I think I must go back to what your Honour was saying earlier about the Houses having only a self‑protective power.  I know I am going to give the impression that I am swimming away from the life raft here, but I must say that it does appear to me that those statements were uttered in the context of the facts which were relevant in those cases.

While it is accepted that there can be no punitive powers, I do not myself see the dichotomy as being punitive on the one hand and protective on the other and that is it.  If it were not for the adverse impact on the liberties and interests of others or on their fundamental rights, freedoms and immunities, to use the language which this Court has used in relatively recent times, there would be no reason not to grant this indulgence to the Council.  It is the adverse impact on the liberties and interests of others that make it impossible to draw the inference which is sought to be drawn.

HAYNE J:   Who are the “others” in that proposition that you have just advanced?

MR KATZ:   For present purposes, accepting the matter as the majority in the court below approached it, it is all of the Members of the House concerned so in the case of the Council it is every Member of the Council and in the case of the Assembly, because as Justice Priestley recognised, there is not going to be one rule for the goose and one for the gander, every Member of the Assembly as well if the power exists for the Assembly as well as no doubt it does if it exists for the Council.  Your Honour, I think I have said before our position is that the approach taken by their Honours in the court below was illogical in the attempt to confine it in the way in which it was done but accepting that against ourselves, those are the “others”, your Honour.

If I may return.  Your Honour, I do not seek to say they cannot have this power because we do not call that protective or self-defensive or whatever other epithet was being used in those cases.

McHUGH J:   But does not that really mean that you have to abandon these cases because they limited the power in that way?

MR KATZ:   No, the context in which they arose made it appropriate to draw that particular distinction but in theory one may ask this question about any suggested power of a legislative chamber:  “Is the existence of any power which is suggested to be present by implication one which is reasonably necessary for the proper exercise of the performance of the functions constitutionally conferred upon it?”.  If the answer to that question is yes, then I do not care what the nature of the power is.  If it satisfies that test, so be it.

McHUGH J:   I know, but you are using very vague terms and you have got to give them content.  Are you talking about “reasonably necessary” in the sense that one would ask whether a power is incidental to the Commonwealth legislative power, for example?

MR KATZ:   No, I am not doing that because I am trying to draw in the approach which all of your Honours have taken to the question of implied powers which require focusing on the adverse impact if such implied powers exist on the personal rights of other people.  That sort of approach does not appear to have been prominent in ‑ ‑ ‑

KIRBY J:   But this is not just an ordinary ‑ ‑ ‑

MR KATZ:    ‑ ‑ ‑ cases dealing with the incidental power, starting say with Burton v Honan, to take an example.  I mean, the fact that the person was entirely innocent does not stop a law which forfeits their car but it seems to me that the question of legislative power is to be dealt with differently than this question of an implied power.  It is difficult to know how to characterise this power since it is a legislative body which is using it but in truth it is an administrative power which is sought to be assumed by a legislative body.

KIRBY J:   My difficulty with those references to the principles that are defensive of civil liberties is that we are here talking about a problem that arose in the operation of a parliamentary chamber in relation to the Executive Government so we are in the realm of the political responsibilities and interaction of one to the other and so it seems to me that the starting point of the inquiry is the one that Justice Gummow and I raised at the beginning and that is that you have got to look to the nature and character of that political organ.

The principles laid down in colonial times by the Privy Council and even, perhaps, by this Court before a full examination of the issues that have now come up in McGinty, perhaps Kable and in Levy may not really be appropriate. The problem is that you start from a different point and particularly where you are working out the relationship of the Executive Government to the chamber of an Australian State Parliament which is recognised as part of the polity of the Commonwealth set up by the Constitution so that when you start with these earlier cases I think you are really starting at the wrong point.

GAUDRON J:   And in that same context my concern is this:  subject to proscriptive law, why should State legislative chambers not be able to develop their own usages and customs as happened with the British Parliament?

GUMMOW J:   Particularly since the Australia Acts?  You see, the decisions you refer us to keep saying these colonial people and they are inferior, these chambers, they are not like Westminster, but one can understand the context in which that was said, but it is a context that does not operate any more after the Australia Acts, does it?

MR KATZ:   Your Honour, may I say these are matters we have dealt with in our written submissions and I will ultimately, I suppose, seek to develop them in a logical way.  One must start the argument somewhere.  It seemed a not inappropriate place to start the argument with what courts have been doing for the last 150 years when confronted with these problems.

GUMMOW J:   Yes, but the ground has been moving underneath them.

MR KATZ:   Yes, and my submissions is - and if it is wrong, that is an end of it - that the rule of statutory construction which was applied in 1843 is an equally appropriate rule of statutory construction ‑ ‑ ‑

GUMMOW J:   In 1843 it was construction of Crown grant actually.  It was construction of a prerogative instrument and one can readily see that one would not construe it as involving the Crown giving too much away.

MR KATZ:   Your Honour, it was afterwards transmuted into a principle dealing with statutes.  It was afterwards applied specifically in the context of a body which was part of the Australian Federation and my submission is that it is just as ‑ ‑ ‑

GUMMOW J:   But you stop there, you see.

MR KATZ:   I am sorry?

GUMMOW J:   You stop there.

MR KATZ:   No, I do not.  My submission is that it is just as good a principle now as it was then, that if one is trying to determine whether or not a body has an implied power, one asks oneself is the existence of such an implied power reasonably necessary for the proper performance of the functions which it has to perform under the instrument, whether it be prerogative, statutory, local, imperial or whatever.

GAUDRON J:   Why not ask whether it is a power that is forbidden to it when you are talking in the context of a constitution?

MR KATZ:   Well, I mean, your Honour, I am bearing the burden of persuasion in this case in any event.  I am trying to succeed in overturning the decision of the Court of Appeal.  I accept that I am behind presently but my submission is that I will be able to persuade your Honours by the application, first of all, of analogies from other areas and, secondly, by decisions relating to the construction of statutes and questions of implied powers more generally.

KIRBY J:   If I can just explain it.  The problem that I have is that if you start within the realm of discourse of rights of subjects and necessities of colonial legislatures, you get to one point.  But if you start from the point that we are looking at, what is implied in a State legislature which itself is part of a Commonwealth with a system of government which is founded on notions of accountability of elected government to the people, then you have to formulate a different rule, you have to formulate a different principle.  You might well end up with the same answer that you are urging on the Court, but it is not going to be formulated in the terms that you have been urging on the Court and, therefore, I have a conceptual problem with the foundation of your argument.

You can go ahead and present your argument and, in fairness to you, Mr Walker seems to have approach it in the same way, and it may be understandable in the way the authority is developed, but I just have a difficulty myself that what may be implied in what a State Parliament of the Commonwealth of Australia under the Constitution of Australia can do, may well be quite a different thing and require different rules and different principles, and different exposition for future cases than what you are trying to urge upon us from the colonial past.

MR KATZ:   Yes, I understand that, your Honour.

McHUGH J:   But do you not have to say, in answer to Justice Kirby, that it is an error to look at it in terms of a State Legislature? State Legislatures have powers to do what they want to do, subject to the Commonwealth Constitution. What we are dealing with here is not a State Legislature, but one body which, combined with another body, and combining the Crown, is the legislature. So, the question is, does the House, itself, have a power to coerce? Not whether a legislature has the power, but whether ‑ ‑ ‑

MR KATZ:   Yes, your Honour, that conflation of the Houses with the Parliament is so pervasive in the reasons of the court below that it almost recedes from view, I must confess, but the truth is, again, and again, and again, at every point, that conflation appears and it is a matter which we do seek to ‑ ‑ ‑

McHUGH J:   That is what you have to keep emphasising, is it not, to get your argument up, that it is the power of a House, not a power of the Parliament - a State Parliament - that is vital in this particular case.  Now, it may be that you have to look at the wider sphere because of the very fact that it is an element in the parliamentary process.

MR KATZ:   Your Honour, the place in which we tried to develop this argument as best we can is our response to the reliance by the judges below on the passage of the Australia Acts.  In our respectful submission, that was a radical error on their Honours part, and a large part of the error flows from the conflation of one legislative chamber with the entire Parliament.  It is a matter to which I will come at the end of my written document, if I may. 

Well, I was trying to set the scene for the earlier decisions and, in particular, the decision of this very Court in Willis v Perry, by referring to the fact that the constitutive instrument there concerned was not as it was properly said to be in Barton v Taylor, an imperial statute, but rather a local statute and can I take your Honours for a moment to the decision of this Court in Clayton v Heffron 105 CLR 214, and direct your Honours’ attention, if I may - perhaps, it is appropriate to begin on page 251 just above halfway, where Chief Justice Dixon is referring to section 5 of the Constitution Act 1902. That is, of course, the general law-making power, and his Honour there says that:

Section 5 was of course enacted by the Legislature of New South Wales. But it was enacted in the exercise of the State’s constituent legislative power and that in turn depended upon an existing source of authority.

Then his Honour explains the history to which I have referred your Honours earlier.  He says:

That existing source of authority consisted in the Imperial Act, commonly called the Constitution Statute 1855, and the Act of the Colony as amended which forms the schedule of that statute, otherwise 17 Vict No 41, commonly called the Constitution Act.

Then his Honour says, perhaps half a dozen lines down:

Now, could I turn to the statutory exposition argument, as we wish to describe it.  I am now at paragraph 36 in our written submissions.  This depends upon the enactment, in 1881, of the Parliament Evidence Act by the New South Wales legislature.  The Parliamentary Evidence Act - and I think your Honours may have a copy of it available - has a long title:

An Act to provide for the summoning attendance and examination of Witnesses before either House of Parliament or any Committee thereof.

And the preamble to the Bill explains the setting in which it was enacted:

Whereas it is expedient that the power of compelling the attendance of Witnesses and of examining them on oath -

so, there are two ideas rolled up there; first, a power to compel their attendance and, secondly, a power to administer an oath to them -

should be possessed - - -

GUMMOW J:   They forgot about documents.  No documents.  It does not talk about producing documents and that is the whole problem.

MR KATZ:   That is our point, yes.  Well, the preamble:

Whereas it is expedient that the power of compelling the attendance of Witnesses and examining them on oath should be possessed by Parliament ‑

and may I pause to draw attention to the fact that section 1 defines Parliament as meaning the Council and the Assembly, so the reference to Parliament is to be understood as expedient that there should be possessed by relevantly the Council and the Assembly a “power of compelling the attendance of witnesses”:

Be it therefore enacted ‑

and then one finds the conferral of powers on the Houses to compel the attendance of witnesses for the purpose of giving oral evidence. The witnesses being referred to may be Members of the House. They may be strangers. At the time this Act was passed the New South Wales Parliament was in control, if I may put it that way, of its own Constitution. It might have done in 1881 what it did in 1902, that is to say to rely on the method referred to by Sir Owen Dixon in Clayton v Heffron of patriating the State Constitution.

So that we have here a body, that is to say, the New South Wales Parliament, which takes a view as to the effect of the 1855 Constitution; it takes the view that the 1855 Constitution does not itself confer the power of compelling the attendance of witnesses and their examination on oath, and it explicitly confers it. Now, your Honours, our submission is that your Honours are entitled to take into account, as persuasive in the matter, the view taken by the New South Wales Parliament of the earlier statute, the fate of which it was in complete control of; it could repeal it, it could amend it in any way, as it ultimately did.

In paragraph 38 we refer to some authorities on the use of a later statute as a statutory exposition of the earlier statute.  It may be sufficient if I simply read a few lines from the reasons of Justices Dixon, Evatt and McTiernan in Deputy Federal Commissioner of Taxes (SA), v Elder’s Trustee and Executor (1936) 57 CLR 610 and at page 626 there is a quotation from Lord Sterndale, in an English case, Cape Brandy Syndicate v Inland Revenue Commissioners, and Lord Sterndale said, obviously with the subsequent approval of the Justices of the High Court:

“I quite agree that subsequent legislation, if it proceed upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier.”

In Bennion, Statutory Interpretation, if I may draw attention specifically to page 542 in the topic headed “Mistake by Parliament” to the following material.  Bennion points out that:

except when legislating, Parliament has no power authoritatively to interpret the law.  That function belongs to the judiciary alone.

He then says, two sentences later:

However the view taken by Parliament as to the legal meaning of a doubtful enactment may be treated as of persuasive, though not binding, authority.

And there refers to the Cape Brandy Syndicate. Our respectful submission is that it could not be plainer than that the New South Wales Parliament believed in 1881 that the 1855 Constitution had not conferred on the Houses a power to compel people to engage in testimonial activity, and it was therefore necessary to enact this legislation.

McHUGH J:   What about the contrary proposition?  Suppose, against yourself, there is an implied power in the Parliament to compel the production of evidence, do you rely on the principle in Attorney‑General v De Keyser of a Parliament, now having legislated in respect of that area of privilege, any residue of the privilege is no longer maintainable?

MR KATZ:   I do not think I can, because that is a principle that is restricted to the prerogative and it is not suggested here that it would be appropriate to describe the implied powers of the ‑ ‑ ‑

McHUGH J:   It has been used in other areas.  For example, it was one of the grounds for holding that there was no offence against - that Mr Brereton
committed no common law offence because Parliament, in the Local Government Act, had legislated upon the question of bribery.

MR KATZ:   I can understand that in the context of the criminal law.  Your Honour, I do not feel ‑ ‑ ‑

McHUGH J:   No, I understand ‑ ‑ ‑

MR KATZ:   I do not feel able to make such a submission.  Certainly, the De Keyser’s Royal Hotel I do not think assists, for present purposes, and, well, I have said what I want to say. Paragraph 39, just one final point about this statutory exposition, and that is that the respondents did not argue below that the Parliamentary Evidence Act had anything to do with the production of documents and our submission is that that was a very proper position for them to take because such an argument would necessarily have failed.  Well, your Honours, I see the time ‑ ‑ ‑

GAUDRON J:   Yes, will you be much longer, Mr Solicitor?

MR KATZ:   Well, I must - what was the name of the man who went out into the wilderness in the Antarctica, I think I may be some little time, your Honour.  I could not say to your Honour that I would be finished in a quarter of an hour.

GAUDRON J:   Mr Solicitor for South Australia, do you propose to add to your written submissions in any way?

MR SELWAY:   I was proposing to take about 15 minutes, your Honour, but it may be, if time is running out, and your Honours have our written submissions, that we may be able to avoid it.  But I propose to take about 15 minutes.

GAUDRON J:   Mr Walker, what is your position?

MR WALKER:   Your Honours, I think it is likely that I would need about three hours, but that is subject to the usual inexactness of counsel’s estimates, I suspect.

GAUDRON J:   A differently constituted Court has to sit at 9.30 tomorrow, so there will be no prospect of earlier sitting.  There may be a necessity to abridge the luncheon adjournment or something of that nature.  But before we adjourn, Justice Kirby has a question that he would like to alert you to.

KIRBY J:   Mr Solicitor, you will recall that earlier in the day when a question was announced by Justice Gaudron and I indicated that I might at a later stage wish to suggest for consideration a slightly different exposition of the question and one additional issue.  The formulation - and I will leave a document with the parties and with the intervener - that I have in mind is something along these lines:  whether the text and structure of the Constitution of the Commonwealth or of the Australia Acts 1986 relevant to the Parliament of the State of New South Wales give rise or are relevant to, one, the power of the Legislative Council of the Parliament of New South Wales to require the appellant to produce to the Council the documents required by the resolutions of the Council of 23 April 1996 and 1 May 1996 and, two, the justiciability of disputed questions arising in relation to any purported exercises by the Council of such power, the latter question being relevant to what you have repeatedly sought to get out of Ex Parte Browne and Fitzpatrick and what seems to me to be an inherent difficulty in the notion of something which is tested by the proposition of reasonable necessity, “reasonable” being itself a disputable notion and thereby prima facie being subject to justiciability.  However, they are the alternative formulations and maybe at some time tomorrow the Court may be assisted on what, if any, of these questions arise out of the matters that have been debated today.

MR KATZ:   Yes, thank you.  I understand we can uplift the - - -

KIRBY J:   Yes.

GAUDRON J:   And it would be appropriate to include that question in any notice sent in accordance with the earlier direction.

MR KATZ:   Yes.  My learned friend, Mr Walker, wishes to hand up some documents I understand.  Would it be convenient to do that before we adjourn?

GAUDRON J:   Yes.  Do we need to be sitting for that purpose?

MR WALKER:   No, if I have your Honours’ leave to give to your associates a bundle of paper, most of which is inspired, I think, by the events of today, one of which is not ‑ ‑ ‑

GAUDRON J:   Yes.  Well, you certainly have that leave and at this stage the Court will adjourn until 9.30 tomorrow, but this matter will not be heard until 10.15.

MR KATZ:   Yes, thank you.

MR WALKER:   Just before your Honour does so, there was one issue on that notice that your Honour was referring to being issued, particularly in light of what has just fallen from Justice Kirby.  It occurred to us to respectfully inquire whether Fitzpatrick and Browne was also the subject of potential, what shall I call it, leave to question its authority.  It is not from our point of view, I hasten to say, but it is because of what fell both from your Honour after the adjournment and from Justice Kirby that we raise the question whether - if a notice is going out, should that be raised as well?

GAUDRON J:   Yes.  Well, it certainly is in Justice Kirby’s question.  I do not think it is in the first question, but I think it would be appropriate if Justice Kirby’s question were included in the notice and, if anything comes of the notice at the end of the day, we will have to see what further argument should take place.

KIRBY J:   You may remember, Mr Walker, that I take the same view as Justice Deane of the Evda authority and, therefore, take the view that leave is not required.  However, the practice of the Court is to seek such leave.

MR WALKER:   Yes.  Leaving aside questions of leave, I was wondering whether the justiciability issue, if I can call it that generally, was raised by the questions and, therefore, should that be the subject of notification, there being more explicit notification required.

GAUDRON J:   Yes.  Well, it is explicit in Justice Kirby’s question.

KIRBY J:   There are two stages here.  The first is the obligation of the Judiciary Act to give notice.  That is all that has been raised by the Court today.  What then happens, in the light of the notice having been given, as to the way in which the parties advance their argument is for the parties.  What the Court privately does in relation to its own authority is its own business.

MR WALKER:   Yes.  May it please your Honour.

GAUDRON J:   Well, the parties know the issues concerning the Court and, if they wish to address them, they will do so, I assume, in the course of today and tomorrow.

MR KATZ:   Thank you, your Honour.

GAUDRON J:   Yes, very well.  The Court will now adjourn until 9.30.

AT 4.22 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 17 JUNE 1998