Egan v Willis

[1997] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S198 of 1996

B e t w e e n -

MICHAEL EGAN

Applicant

and

MAX WILLIS

First Respondent

WARREN CAMERON CAHILL

Second Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 JUNE 1997, AT 9.33 AM

Copyright in the High Court of Australia

MR L. KATZ, SC, Acting Solicitor-General for New South Wales:   If your Honours please, I appear for the applicant.  (instructed by the 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 KATZ:   If the Court pleases, the basis of this application is that there is a question of law of public importance involved and obviously, as well, that there is sufficient doubt as to the correctness of the answer to the question of public importance given by the Court of Appeal.  The question of law is one which concerns the Constitution Act of New South Wales and the question is whether or not the Legislative Council constituted by that Act and having functions conferred on it by that Act has an implied power to require persons to produce documents to it in aid of the performance of those functions.

GAUDRON J:   You say “a person” but the decision is, in fact, restricted to the applicant.  The declarations made are restricted in that regard.

MR KATZ:   Yes, but the ratio of the case extends far beyond that.  Could I ask your Honours to go first of all to page 65 in the application book.  These are the reasons of his Honour Justice Mahoney.  Having first approached the matter on the basis that the question is whether or not there is a power to require production of documents from any member of the Legislative Council, his Honour then goes on to deal with the question whether or not Ministers who are members are excluded from that general entitlement.

GAUDRON J:   Persons who are members of the Legislative Council.  That is a fairly confined class.

MR KATZ:   May I say this, that I have framed the question on the basis of persons so as not to limit it to members who are ministers.  The question goes certainly beyond that narrower class.  I should perhaps mention also that at page 88, I believe it is, Justice Priestley again frames the question not in terms of members who are ministers but members, and then says:

I can see no basis for denying the existence of the power in the case of a member who is also a -

Minister.  Justice Mahoney expressly reserved the position of persons who were not members.

McHUGH J:   So did Justice Gleeson, did he not?

MR KATZ:   With respect, not.  Although Justices Mahoney and Priestley did not travel beyond members of the Council, the formulation of the matter by the Chief Justice necessarily involves a power as against many persons who are not members of the Council.  It is probably convenient to remind your Honours first of the definition which his Honour gave of “State papers” which appears in the application book at page 11, at line 21.  His Honour there defines “State papers” as:

papers which are created or acquired by Ministers, office-holders, and public servants -

and then holds that there is a power in the Council to require the production of State papers.  It necessarily follows from his Honour’s definition of “State papers” that potential recipients of commands by the Council will include not only members of the Council but also office holders and public servants.  It appears also from some matter which his Honour discusses at page 29 in the application book that his Honour contemplates the availability of the power against ministers who are not members of the Legislative Council, so that at page 29, admittedly in the context of a discussion concerning the federal Parliament, his Honour asked at line 15:

What if, in the case of an order of the Australian Senate, the recalcitrant person were a member of the House of Representatives?  What if the person were a Prime Minister?

And of course his Honour’s definition of “State papers” necessarily contemplates the availability of the power which he held to exist as against persons who are ministers in the lower House.

GUMMOW J:   I am not sure, Mr Katz, whether you are seeking to upset the order that was made by the Court of Appeal......plaintiff who is a member.

MR KATZ:   Yes, certainly, your Honour, but I thought Justice Gaudron asked me about the extent to which the ratio of the case - - -

GUMMOW J:   Suppose one was satisfied that at least to that extent the decision was correct?

MR KATZ:   In that case, obviously, special leave would not be granted but, in my submission, so far as concerns even that narrower class, there is sufficient doubt as to the correctness of the decision.

GUMMOW J:   That is a decision of the Court of Appeal.

MR KATZ:   But perhaps I brought this on myself by framing the question in terms of “persons”.  I did so deliberately because, as I say, the ratio of the case was not confined to persons specifically in a class of the plaintiff, that is to say, members of the upper House who were ministers.

May I say something about the public importance of the question which is involved, because my learned friends do submit that there is no question of public importance within the ordinary acceptation of that term in the present case.  It is not said against me that this is not a matter of public importance to the public of New South Wales but what is complained is that it is of no importance to the public of any other part of Australia than New South Wales.  May I quickly make a number of points in response to that.

First, so far as I can tell, there has never been a case in which this Court has refused special leave on a question of State constitutional law on the basis that the question was one only involving one particular State.  Secondly, I apprehend my learned friends cannot find any such case because they have not mentioned one.  Thirdly, the special leave jurisdiction of this Court was borrowed from that of the Privy Council and not only that but the discretion has been exercised from the outset of the operation of this Court in the same way as it has been exercised by the Privy Council.  One can find no suggestion in the Privy Council’s practice ever that special leave to appeal in constitutional matters will not be granted because the question of constitutional law involved concerns one law area only.  Certainly, say, for 75 years in Canada such a requirement was never imposed.

GUMMOW J:   To the great dissatisfaction of Canadians.

MR KATZ:   That may be, but nonetheless it does not affect the force of the point which I am seeking to make now.  The next point is this, that so far as I can tell not that long ago, speaking only about 20 years ago, your Honours will remember Western Australia v Wilsmore.  That was a case in which this Court granted special leave to appeal on a decision purely of Western Australian constitutional law. The question was whether or not the second sentence of section 73 of the Western Australian Constitution Act 1889 was an independent enactment or a qualification of the first sentence of the provision. It had no implications beyond Western Australia. Special leave was nonetheless granted.

McHUGH J:   But one problem with this case is that the procedures are somewhat unsatisfactory.  The judge stated certain questions; the parties did not want the questions answered; the court ultimately made a declaration.  I would think that the case is an authority for no more than the proposition that the Legislative Council can call on one of its own members, certainly if he is a minister, to produce documents.

MR KATZ:   I think I did say, your Honour, that the ratio of the case extends to all members, not only ministers, but I concede the ratio does not extent beyond that.  Nonetheless though, the logic of the situation would seem to compel a view beyond that.

McHUGH J:   Not necessarily.  There may be serious questions as to whether they can call for a minister or a member of the Legislative Assembly to produce documents; still less whether they can demand private citizens to produce documents, but here the Council is asking one of its own members who is a minister to produce documents.

MR KATZ:   Your Honour, I am content to have the matter dealt with on the basis of the ratio but I cannot forbear from saying that the logic of their Honours’ position must surely extend beyond that.  If I may simply answer, at least in this sense:  the House of Commons has a power to compel the production of documents from any person, whether a member or not.

McHUGH J:   Maybe.  Does not Erskine May say that orders to various tribunals have been disregarded and not enforced.  Maybe there is a question.

MR KATZ:   There appears to be no question as to the power, whether in its practical working out there has been a retreat, but the point I seek to make by drawing in a reference to the House of Commons is this:  that is a power which, in my submission, has been thought to extend to every manner of person.  To some extent, their Honours rely on the existence of the power in the House of Commons and suggest that nonetheless though that power is formally supported for different reasons, underlying it is an element of necessity.  Well, of course, that is the same underlying element which led their Honours here to conclude that the power extends at least to the case of members.  But, as I say, I am content to have the matter dealt with on the basis that the ratio extends to members, whether ministers or not.

GAUDRON J:   What about confining it to members who are ministers, which is the effect of the decision?

MR KATZ:   With respect, not.

GAUDRON J:   Well, it is the effect of the declaration.

MR KATZ:   Yes.  Your Honour, in my submission, the ratio of the case extends beyond that and it is appropriate for me to seek to establish error in the underlying ratio.  If this Court does not consider the matter, it will necessarily follow within New South Wales that the next step will be, for instance, in the Legislative Assembly the government will procure the production of documents from opposition members in reliance on the ratio.

GUMMOW J:   That will be another case, I suppose.

MR KATZ:   Yes, it will be.  There was one last matter, if I may, before I conclude this aspect concerning a matter of public importance.  May I just put it in this way:  it is not self-evident that the decision of the Court of Appeal in this matter does not have application beyond New South Wales.  For instance, an important feature of their Honours’ reasoning, that is to say, all three of their Honours, was the effect of the passage of the Australia Acts on the powers of legislative chambers.  That reasoning would be equally applicable to the powers of legislative chambers in other States of Australia.  I have made my initial points on the basis that the matter does not extend beyond the public of New South Wales and I merely say it is not necessarily the case that it does not extend beyond them.

May I turn then to the matters which, in my submission, combine to cast sufficient doubt on the correctness of the decision of the Court of Appeal.  The first matter I rely on is this:  the failure by the Court of Appeal to have regard to the treatment both in the Privy Council and in this Court of the ability of a royal commission to compel people to engage in testimonial activity, including the production of documents, in the absence of an express statutory conferral of power.  All of their Honours in the Court of Appeal identified legislating as a function in aid of which the Legislative Council might wish to have access to documents and they held that in aid of that function the Council had an implied power to compel the production of those documents.

Legislating is, of course, a function which is shared with the Crown and it is one in aid of which a royal commission created by the Crown in the exercise of its prerogative might equally wish to have access to documents.  Indeed, the function of advising the Crown as to proposed legislation is one of the major functions of royal commissions but it has been held authoritatively, both in the Privy Council and in this Court, that royal commissions can have no power to compel people to engage in testimonial activity, including the production of documents, unless there is express statutory authority.

Their Honours in the Court of Appeal made no attempt to explain why there should be a difference in approach as between the Crown, as one arm of the legislature on the one hand, and the legislative chambers on the other.

McHUGH J:   That would be a powerful argument if you were addressing the Court of Kings Bench in the 18th century but in the respective roles of the Legislative Council and the Legislative Assembly and the Crown, it varied even in the last 100 years.  The Crown does not play the same role in legislation in this country or in England as it once did.

MR KATZ:   Your Honour, could I amend my usage of “the Crown” to “the executive”?  In my submission, once that happens, the point - - -

McHUGH J:   Yes, that is a better way of putting it.

MR KATZ:   Yes, I have used the language of “the Crown” in a formal sense but, in truth, what I refer to is the Executive Government and in aid of its - - -

GAUDRON J:   Which is also responsible to the Parliament under our system.

MR KATZ:   Well, your Honour says, “to Parliament”.  A question arises as to whether or not the doctrine means that the ministry is responsible to the lower House or to both Houses of Parliament.  That is a matter which his Honour the Chief Justice said we ought not to get into and, with respect, I am content to obey his injunction to that extent.  When one focuses on “the executive” and considers the question whether or not the executive has compulsory powers with respect to testimonial activity, one has an answer which, with respect, although it has been given for a long time now, is hardly likely to be altered and the question is - and, in my submission, there is no satisfactory answer to it, unless the cases about royal commissions are wrong - why should the executive be treated differently in this respect than the legislative chambers?

May I turn to the next of the points which I say, in combination, leads to the existence of a sufficient doubt.  The Court of Appeal thought it appropriate to construe the Constitution Act by reference to the Australia Acts.  At the same time, it apparently thought it inappropriate to construe the Constitution Act by reference to the Parliamentary Evidence Act. There was a conscious reading of the Constitution by reference to one statute or set of statutes and in eschewing of reading it by reference to another statute. My submission is the Australia Acts had nothing to do with the question and the Parliamentary Evidence Act had everything to do with it.

McHUGH J:   I think, in fairness to the Court, did they not use the Australia Acts as showing that the Legislative Assembly and the Legislative Council had moved closer to the House of Commons’ model rather than the view that was taken of assemblies in colonial days?

MR KATZ:   If that is the view which their Honours took, and I must confess I do not find it easy to discern at the end of the day precisely what the use of the Australia Acts was - if that was the view which was taken, in my respectful submission, it was erroneous.  Your Honours, I see the lights.

McHUGH J:   You have got a quarter of your time left.

MR KATZ:   Do I, but I have not got half of my points.  May I refer to the rest of the points and come back and deal with so many as I can.  I have mentioned the taking into account of the Australia Acts and I will seek to develop it, if I have any time, the reason why that is irrelevant, and the failure to take into account the Parliamentary Evidence Act.

The next of the matters on which I rely is this:  in my submission, it is permissible in statutory construction to consider the consequences of alternative suggested interpretations of the statute and the inconvenient consequences if one construction were to be preferred to another.  The Court of Appeal in this case gave no weight whatever to the inconvenient consequences which would flow from the construction which it gave.  In fact, Chief Justice Gleeson seems, with all respect, to trumpet the inconvenient consequences which flow from his holding that there exists such a power and then says at application book 31 that the problems which he has identified:

do not tend against a conclusion that the Legislative Council has the power it asserts.  They are problems inherent in the nature of the power.

With respect, the second sentence is demonstrably wrong.  The problems which he has identified are by no means inherent in the nature of the power, especially when one is confronted, as he was there, with a discussion about statutory powers.  All one has to do is pass a proper statute and that puts an end to these problems which he identifies.

GAUDRON J:   The same might be said in the context in which you speak:  pass a proper statute and you will not have to trouble the courts with these issues.

MR KATZ:   Could not agree more, your Honour, but what has happened in this case is that a conscious decision having been made within the New South Wales polity not to pass an appropriate statute, the Houses seem to have got a leg up for some other reason.

May I mention the last of the points and then try to come back as quickly as I can to the other points.  The last of these points is that the Court of Appeal relied on a function in the Council of scrutinising the executive as a source of the implied power.  The Constitution Act does not expressly repose in the Council a function of scrutinising the executive.  In my submission, such a function is not implied by the terms of the Constitution Act.  It is not implied by the structure of the Constitution Act.

McHUGH J:   But it may be implied by what was said in Cooper v Stuart as the implied operation of silent constitutional principle.

MR KATZ:   May I say about that we are here concerned, your Honour, with a non-rigid Constitution and, in my respectful submission, it is, if not inappropriate, then far less appropriate than it is in the case of a rigid Constitution such as the Commonwealth Constitution to focus on those sorts of matters. One here is truly seeking to divine the legislative intention, recognising that it can be altered by legislation. I see the time has evaporated. If your Honours please.

GAUDRON J:   Thank you, Mr Katz.  Yes, Mr Walker.

MR WALKER:   May it please your Honours.  Your Honours, we, of course, do not say that the extent of the powers in the way in which they were sought to be enforced in this case are not transcendently important for the legislature of New South Wales and that therefore it follows, we concede, there is, in one sense, general public importance, if one takes a view of New South Wales in the Federation, which my clients do.

However, in our submission, in terms of this Court’s taking of the case pursuant to special leave, it is of overwhelming importance to concentrate on what the decision in this case was and therefore what the decision by this Court upon an appeal might be in terms of contributing to the relevant jurisprudence.  It is in that area that we do say, however briefly, that at least this much is clear from the issues in the case and therefore the ratio decidendi, that it will be a peculiarly New South Wales result.

Whatever may be generalisable from a decision about the particular facts of this case and the particular way the conflict between executive and Council was raised in this case - - -

GAUDRON J:   We have taken on the New South Wales Stamp Duty Act in similar circumstances, Mr Walker.

MR WALKER:   Your Honour, I do not wish to repeat my opening concession which is that there is an obvious general public importance and there is no point in me seeking to persuade your Honours to the contrary of that.  However, in our submission, it is of significance that the limited ratio on the facts and issues of this case does march hand in hand also with the limited territorial application.

Can I come to the limited ratio?  On no view of any of their three sets of reasons can it be said that the findings and, most importantly, the reasoning travels beyond the position of a person who has a dual status.  First, a member of the very chamber in question, that can be seen to be critical, bearing in mind what all three of their Honours say in relation to Armstrong v Budd and the importance of that authority in terms of the House’s protective capacity with respect to its own integrity.

McHUGH J:   What is the source of the power?

MR WALKER:   The source of the power is the nature of the Parliament as a Parliament which pre-exists the mere statute, the Constitution Act, to which my learned friend last referred.

McHUGH J:   This is a separate House?

MR WALKER:   This is a separate House of the Parliament.  Now, it is the nature as a House of the Parliament and it is the nature of the Parliament of which it is a constituent part which is ultimately the source of the power.

McHUGH J:   That is easily said but why?  How does it get this power?

MR WALKER:   It gets the power by reason of the reasonable necessity.

McHUGH J:   I notice the Chief Justice said that.  That cannot be the test, “reasonable necessity” can it?

MR WALKER:   “Reasonable necessity” is both the language and, as it presently stands in New South Wales, the authority for the way in which all powers, not expressly bestowed by the Constitution Act or by other statute, are enjoyed by the Houses of Parliament in this State.  “Reasonable necessity” is the expression.

McHUGH J:   These may be public documents in one sense, but you want to interfere with a private right.

MR WALKER:   No, there is no private right involved unless your Honour is talking about this as a case of civil assault.

McHUGH J:   No, I am talking about possession of the documents.  I mean, they are not the House’s documents.

MR WALKER:   Nor are they or were they Mr Egan’s, as a private individual.

McHUGH J:   Well, if you had an action for trespass, if they were taken, he would be the person, would he not, who would launch the action?

MR WALKER:   Not necessarily.

McHUGH J:   It may be the Crown.

MR WALKER:   He may or may not be, depending upon the particular nature of the documents.  One thing is clear, he holds those documents and uses them pursuant to his sworn public duty and not otherwise.  They are not his private documents.  They are not bits of paper which he can dispose of, destroy, deface, as he chooses.

McHUGH J:   But where does this power end if your submission is right?  What is there to stop the Legislative Council calling on any member of its own House to produce documents or, for that matter, any private citizen to produce documents?

MR WALKER:   In terms of the special leave issues, the first thing that can be said negatively is that this authority, this case, does not provide warrant for Black Rod breaking down private householders’ doors and rifling through their papers.  That is the first thing.  It may be that in some future case, if this is undisturbed, the reasoning in it will provide the first step to aid an elucidation of whether or not there is such an extraordinary power.  But, in our submission, the reasoning in this case, and the issues posed by it, cannot possibly be said to raise the spectre of its being used as an authority to travel beyond control of a member in that chamber.

McHUGH J:   The reasoning would certainly seem to indicate that the House could call on any minister.

MR WALKER:   No, it does not.

McHUGH J:   Apart from Justice Gleeson.

MR WALKER:   Neither of the others strays one whit away from an express limitation of the finding to “member” and not member of Parliament but member of that House.  The references are - I do not need to take your Honours to them but Mr Justice Mahoney, at 65; Mr Justice Priestly, at 88, and it is clear that they are talking about “member” and that there is no possibility - bearing in mind the care with which their Honours, all three of them, noted issues which were not raised and could not be settled by this controversy - of reading that language at any future time as authorising an interference by the upper House with the duty of the member of the lower House, for example, to attend the lower House.  I think the Chief Justice referred to “convention and courtesies between the two chambers”.  That is soft language for what would be a far harsher constitutional conflict but, clearly enough, the Court of Appeal in this case were very sensitive to and it is for those reasons that my friend cannot point to nor could anyone in future, using this decision as authority, nor could they point to anything in it which would give comfort to either of the chambers seeking to reach into the membership of the other chamber simply on the basis that, as well as being a member of the other chamber, the individual in question also was commissioned as a minister of the Crown.

McHUGH J:   How do they get the power to reach into their own members?

MR WALKER:   The implication, as your Honour will recall from the reasoning, first comes from the fact that this is a chamber of a legislature, that is, it has legislative functions.  That is undoubted.  The second is that legislative functions import a reasonable necessity - - -

McHUGH J:   It is an attractive phrase from an advocate’s point of view but it does not really lead you very far to say “it has legislative functions”.

MR WALKER:   No, that is only the foundation.  It does not lead anywhere ultimately but without it we are lost.  If we did not have legislative functions we would not be called the Legislative Council, we would not be part of a Parliament and would no doubt be arrogating very serious powers which we would not have.  It is therefore of the essence, however trite, that we are legislative.  That is the first thing.  The second thing is that legislation involves the making of law.  The third thing is that the rule of law requires and involves in our system the subordination of the executive to the legislature, that is, the executive must obey the laws and that laws can impinge upon freedom of action otherwise of the executive.

Putting all of those matters together which, descending to political science for a moment, is obviously involved in both responsible and representative parliamentary government, one then has the proposition embraced by each of the three judges, each starting with legislative functions, that the reasonable necessity is imported in terms of civilised making of laws to scrutinise the working of the government.  Justice Priestley is the one who put it most expressly at page 87 where he referred to what he called “the imperative need”, which is clearly adapted for a finding of reasonable necessity, that both chambers:

have access (and ready access) to all facts and information which may be of help to them in considering three subjects:  the way in which existing laws are operating; possible changes to existing laws; and the possible making of new laws.

McHUGH J:   If you apply that literally, then it would mean that the Houses of Parliament can access facts and information from any citizen.

MR WALKER:   But your Honour anticipates the next points I have to make which is to return where I started.  The ratio of this case, of which that is part of the reasoning, also requires attendance to the issue and the issue was whether a member could be suspended.  Now, of its nature, that is something that can only happen to a member.  Certainly, the immediate legal issue was civil assault which, of course, could happen to any private individual but the facts show that it comes from a suspension and a reasonable enforcement by gentle laying on of hands of that suspension.

McHUGH J:   Yes, but there is an anterior question.  At back of the suspension is the question as to whether the member has done anything.

MR WALKER:   Quite.  The power is not bottomed on answering the questioning, “Has the member done anything wrong?”, it is bottomed on whether or not the chamber has the power to compel that member to do something by means, stopping short of punishment, which can obviously involve suspension.  Now, that is the only issue that was raised by this case.  It leaves undetermined, but clearly evokes, some fairly anxious thought about expulsion.  Armstrong v Budd already stands as authority that expulsion powers may exist by implication, notwithstanding the circumstances do not fall within the express heads of “expulsion” under the Constitution Act, that much is established and is clear law in New South Wales.  That is not challenged.  Armstrong v Budd has not been described as being wrong by any part of the argument below or adumbrated to your Honours today.

McHUGH J:   If your argument is right, why cannot a majority of the House pass a resolution requiring all the members of the Opposition to produce all their papers regarding their policies in relation to a particular subject matter under investigation in the House?

MR WALKER:   The first answer to that, your Honour, is that it would be a thin reed, indeed, to rely on the reasoning of this decision to justify that extraordinary act.  That is because this decision is about somebody with a dual status.  They are not only a member but they are a minister and therefore the papers are State papers in the sense described by all three of the judges below. 

McHUGH J:   But ministers ordinarily answer to the House where governments are formed, which is the lower House.

MR WALKER:   With great respect, the ministry may, ultimately, in terms of stand or fall, but it is not true in either the literal or the extended sense that ministers answers only for the lower House.  The records of upper Houses all round this country show ministers literally and figuratively answering to other Houses.  So, to the extent that my learned - - -

McHUGH J:   Perhaps you are using “answer to” in a different sense.

MR WALKER:   Both literally and figuratively:  they may answer to also in the sense that they can stand censured by an upper House as surely as they can by a lower House.

McHUGH J:   Yes, but if they are a member of the House, that is one thing.

MR WALKER:   Yes.  I am now talking about people who are members of the House and are also ministers.  I am not talking about the case which is undetermined and may not be the next case but may be a future case, namely, a non-member who is a minister.  That is a very different issue and it involves, obviously, conventions such as ministers being members of a House, none of which has been looked at by the Court of Appeal which makes this a most inapt vehicle for those very important issues of potential constitutional conflict being raised.

McHUGH J:   But is that not the problem with the decision below, that the reasoning is, at first blush, so wide that it could be a foundation for arguments going well and truly beyond the facts of this particular case?

MR WALKER:   Your Honour, that is to raise the spectre of this Court taking on a case in order that, by its own comments on issues not raised on the facts before the Court, it may comment on matters of principle which are themselves, it is said, too generally expressed for the facts and issues before the Court of Appeal and, in my submission, it is no useful function of this Court, query whether it is within the power of this Court, to take on a case simply in order to comment obiter on obiter.  So, to the extent that your Honour is, with great respect, correct in suggesting that expressions of principle such as one finds at the top of 87 by Justice Priestley which clearly, in isolation, travel far beyond the issues of this case, to the extent that it is said that because they travel beyond, they raise a spectre of future cases being determined according to those statements then, in our submission, that is nothing more nor less than this Court taking on a case in order to comment on obiter.

McHUGH J:   It goes beyond that because it does throw up questions as to what is the ratio of this case and the case may be as arguably decided on a principle which transcends the particular facts and, if so, then it is more in relation to that principle.

MR WALKER:   No.  The better view of that aspect of this decision and the reasoning for it is that “reasonable necessity” being the phrase to which their Honours were directed by authority and being a phrase which is not alien to any common law approach to implication, constitutional or otherwise in any event - - -

McHUGH J:   But that is another problem, is it not?

MR WALKER:   If I could just finish that part of the answer.

McHUGH J:   Can I just put this to you, the common law implies powers when they are necessary, not when they are reasonably necessary.

MR WALKER:   But in this area, for the reasons that are spelled out by Justice Mahoney in particular, one cannot interpret “necessity” as meaning the bare sine qua non or the existence because that would be to deny the high importance of the institution - in this case, a parliamentary chamber - of operating effectively.

McHUGH J:   That seems to me to be a circular argument.

MR WALKER:   Most implication arguments which invoke necessity have a circularity, your Honour, because to describe something as “necessary” which is, of course, sufficient to make it something that ought to be implied, is normally not much more than saying that it ought to be implied because it is necessary.

McHUGH J:   Well, it is necessary to make it function but this qualification is, “Oh, it’s reasonably necessary to make it function”, which suggests it is not absolutely necessary to make it function, if you have degrees of “necessary”.

MR WALKER:   That is, with great respect, a juristic issue which could have been raised in this case but was not.  There was no debate below that this was a choice between absolute necessity.  To put that would have been contrary to authority as it stands in New South Wales at the moment.  There was no debate that this was a choice between absolute necessity on the one hand and reasonable necessity on the other.  There was no debate saying that so long as the members could meet in some weatherproof shed, that was all the parliamentary chamber needed, that everything else was, as it were, a luxury, not necessary in the relevant legal sense. 

Justice Mahoney does go to some trouble to deal with that chivalric and does so, with respect, but he was not answering an argument that was raised below.  It has not been debated below.  It is not an issue therefore presented by this decision.  If it is going to be raised, in our submission, it ought to be raised by facts which really do enable a distinction to be discerned between attributes of a chamber which might be said, on the one hand, to be absolutely necessary, and freedom of assembly would be one of those, and those which might be simply reasonably necessary such as the ability to have proceedings printed for ease of reference later.

Nowadays, in our submission, it would be very difficult, in the abstract, that is, if this case were taken by special leave to debate that kind of issue, to determining anything which would be a useful decision of this Court in the area.  One needs facts and there are not in this case facts which enable the distinction for an absolute and reasonable necessity to be discerned.

Finally, in our submission, there is a real issue as to whether or not, in this case there is any reason to doubt the correctness of the decision however much one may question the generality of the way some of the reasons have been expressed.  Once one does confine to the facts and issues before the Court of Appeal, one has a minister, undoubtedly with State papers, with no claim for any answer apart from lack of power to the apparently regular request and order for them to be produced.  He is a member of the House.  The House’s business includes debate on matters of public importance falling within the undoubtedly wide scope of its legislative function. 

On any view, therefore, the reasoning which may, taken in isolation, appear relatively wide, a fortiorari, renders correct the more narrow question, can a member, who is a minister with no excuse other than a defiance of the existence of the power, be suspended in order to compel obedience to the House’s requirement that public papers, on a matter properly before it and comfortably, and obviously within its legislative competence, be produced for its scrutiny?  Understood that way, which is the correct way to read the decision.......there is not sufficient doubt attending the correctness of the decision to justify this Court entertaining an appeal.

Furthermore, in our respectful submission, it emerges from the way in which my learned friend has put the case that it really is a pre-emptive strike that he seeks to administer by an appeal pursuant to special leave in these proceedings against proceedings which may or may not present themselves in the near or not so near future on facts which will assuredly be at least different than the facts of this case.

McHUGH J:   How do you resile the decision in this case with the accepted law that the third part of the legislature, namely the Crown, has no power to compel the production of documents?

MR WALKER:   The third part of the legislature bears no comparison with the other two parts of the legislature so far as its entire lack of representative capacity.  That is the first.  Second, it is not a - - -

McHUGH J:   So, in New South Wales, when did this power arise?  After the - - -?

MR WALKER:   Responsible government.

McHUGH J:   Even when the Legislative Council’s members were appointed?

MR WALKER:   Yes.

McHUGH J:   By the government, by the Crown?

MR WALKER:   Nonetheless, representative.

McHUGH J:   By the Governor?

MR WALKER:   I did not say balloted or democratically representative, simply representative.

McHUGH J:   The Governor used to appoint them.

MR WALKER:   Yes.  That does not mean they are not representative.  They may be representative in a way which one regards as alien to modern notions but they are still representatives.  So, in our submission, it is quite clear that of the three organs of Parliament, two are debating chambers, one is not.  A debating chamber is something that is calculated to have requirements, that is necessities, in relation to information and the stuff od debate.  The Crown does not and so, in our submission, my friend’s claim that it should be all or nothing for the three organs of Parliament is one which fails by a false analogy.

GAUDRON J:   Yes, Mr Katz.

MR KATZ:   Could I ask your Honours to go to page 51 in the application book at line 25.  Here Justice Mahoney sets out the issues to be determined in this case as the proceeding has been conducted, and your Honours see the first two points which his Honour identifies as issues to be determined in this case as it has been conducted.  The first is:

whether the Legislative Council has power to require a Member.....to produce -

documents and, secondly:

(if it has) whether it has power to require -

“a Minister” to do so.  It is not right for my learned friend to say that this case revolves around - - -

GUMMOW J:   No, it means a minister who is a member.

MR KATZ:   Yes, but my learned friend insisted to your Honours more than once that we are only concerned here with a member who had a dual capacity.  With respect, the ratio of the case - I have directed your Honours’ attention before to pages 65 and 88 - is that there is a power with respect to members generally.  Then the question is whether or not there should be some special immunity for ministers who are members.  Held:  no, they fall into the pot with the rest of them.  So that, in my respectful submission, it is simply not possible for my learned friend to seek to reduce this case to a case about ministers.

GAUDRON J:   That is what the declaration ultimately relates to.

MR KATZ:   I accept that, your Honour, but the case has a ratio.

GAUDRON J:   It may be, but if ultimately the declaration is confined to members who are ministers, it is in that area that you must demonstrate error or sufficiently arguable error to attract the grant of special leave.

MR KATZ:   May I say to your Honour I have identified, for instance, the difference between the position of a royal commission, on the one hand, and the legislative chambers on the other so far as this Court of Appeal decision is concerned.  I may remind your Honour that the question could just as easily arise as to whether or not a royal commission could use compulsive powers to require ministers to engage in testimonial activity.  It is not possible to shear off the radically different view with respect to the executive in the way - - -

GAUDRON J:   Do they have question time in the upper House?

MR KATZ:   Yes, they do.

GAUDRON J:   What is the difference between question time and asking for the production of papers?

McHUGH J:   It is a question as to whether they can order.  That is the real question.

MR KATZ:   Yes.  I must say, of course, that it would be possible - I know this is the wrong thing for me to do - in reliance on the terms of the Parliamentary Evidence Act for ministers, for instance, to be required to answer questions in a way entirely differently than they presently do and so I cannot say to your Honour the distinction your Honour has just made is necessarily accurate, but be that as it may. 

I want to draw attention first of all to the fact that his Honour Justice Mahoney says expressly that as the issues have been presented, the first issue is whether or not it applies to members and then only, secondly, to ministers.  Your Honour Justice McHugh made some reference to the private rights involved.  My learned friend wants to treat this case as though Mr Egan is merely a cipher and the real demand is upon the executive.  With respect, it is personal to Mr Egan.  It is Mr Egan who is suspended, it is not the executive, it is not the Crown which is the subject of coercive powers.  On this question of coercive powers, may I remind your Honours that Chief Justice Gleeson, at page 38, said that:

the Legislative Council has such coercive powers as are reasonably necessary to compel compliance with an order for production of State papers -

If one is to analogise to other situations in which there are powers to compel the production of documents, it seems impossible to isolate, for instance, the power to imprison in order to enforce the sanction.  Justice Mahoney referred specifically, at page 65, to the possibility of search and seizure if there is non-compliance.  I am at the bottom of the page in the last paragraph.  I admit immediately that his Honour says, “it is not necessary to pursue the matter” but he puts the matter in this way, that:

The ordinary bystander might think that it follows that the House has the power to do whatever is necessary to achieve the tabling of papers in compliance with its order.  Thus, he might think that the power to compel involves the power to seize the papers if the person ordered to table them refused to do so.

So, one has the spectre then of the officers of the legislative chamber breaking down the doors of the Treasury, presumably, in order to obtain access to the documents which Mr Egan contumaciously refuses to - - -

GUMMOW J:   Perhaps we should wait until that happens, I think.

MR KATZ:   Yes.  We have sufficient work to do with this one, your Honour, I concede that.  If your Honours please.

GAUDRON J:   Thank you, Mr Katz.  Yes, there will be a grant of special leave in this case.

MR KATZ:   If the Court pleases.

AT 10.23 AM THE MATTER WAS CONCLUDED