O'Sullivan v Andrews
[2016] VSC 560
•21 September 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 03385
| LUKE BARTHOLOMEW O'SULLIVAN | Plaintiff |
| v | |
| THE HONOURABLE DANIEL MICHAEL ANDREWS, PREMIER OF VICTORIA | First Defendant |
| STATE OF VICTORIA | Second Defendant |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 September 2016 |
DATE OF JUDGMENT: | 21 September 2016 |
CASE MAY BE CITED AS: | O'Sullivan v Andrews & Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 560 |
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CONSTITUTIONAL LAW – Parliament – Casual vacancy in the Legislative Council – Legislative Assembly declined proposal of Legislative Council for joint sitting – Plaintiff sought declaratory relief and mandamus – Preliminary question as to whether a justiciable controversy exists – Principle of exclusive cognisance – Whether claim for mandamus requiring Premier to advise Governor to summons the Houses of Parliament for a joint sitting a justiciable dispute to which questions concerning the internal proceedings of Parliament are incidental – Constitution Act 1975 (Vic), ss 8, 19, 20, 27A, 87E, Supreme Court (General Civil Procedure) Rules2015 (Vic), r 47.04.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J Williams QC, with Mr J A Silver | Dawes & Vary Riordan Pty Ltd |
| For the Defendant | Mr R M Niall QC, Solicitor General for the State of Victoria, with Ms J D Watson and Mr O M Ciolek | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
When Mr Damian Drum, the member for the Northern Victoria Region of the Legislative Council (the Council) representing the National Party of Australia – Victoria (the Nationals) resigned from the Council to successfully contest the Federal election on 2 July 2016, the Nationals duly nominated the plaintiff to fill the casual vacancy created by his resignation. On 17 August 2016, the Council sent a message to the Legislative Assembly (the Assembly) proposing that there be a joint sitting of the two Houses to fill the casual vacancy, but that same day the Assembly resolved to decline the Council’s proposal. No further step has been taken to fill that vacancy.
By Originating Motion filed 23 August 2016, the plaintiff applied to the court for the following relief.
1.A declaration that where a casual vacancy occurs in a seat in the Legislative Council of Victoria, and subsection (4) of s 27A of the Constitution Act 1975 applies to the filling of that vacancy, the joint sitting of the Legislative Assembly of Victoria and the Legislative Council of Victoria required by that section must be held:
(a) as soon as reasonably practicable after the relevant registered political party nominates a person to fill the vacancy in accordance with subsection (4) thereof;
(b) further or alternatively, not later than the third day upon which either the Legislative Assembly of Victoria and the Legislative Council of Victoria or either of them sits after the relevant registered political party nominates a person to fill the vacancy in accordance with subsection (4) thereof.
2.A declaration that the absence of the Leader of the Government in the Legislative Council does not prevent the convening of, nor the conduct of, a joint sitting of the Legislative Assembly of Victoria and the Legislative Council of Victoria in accordance with s 27A of the Constitution Act 1975.
3.An order in the nature of mandamus requiring the first defendant forthwith to tender advice to the Governor of Victoria, in accordance with s 87E(b) of the Constitution Act 1975, advising the Governor to convene a joint sitting of the Legislative Assembly of Victoria and the Legislative Council of Victoria at 6:15pm on 30 August 2016 (or such other date as the court shall fix) for the purpose of choosing the plaintiff pursuant to s 27A(4) of the Constitution Act 1975 to fill the casual vacancy in the Legislative Council created by the resignation of the Honourable Damian Drum as member for Northern Victorian Region.
Following a directions hearing before Garde J, sitting in the Practice Court, the defendants, by summons filed 31 August 2016, sought an order, pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules2015 (Vic), that the following questions be tried before the trial of the proceeding.
1.Should the court decline to hear the proceeding on the basis that there is no justiciable controversy between the parties?
2.Does the Governor have power to convene a joint sitting of the Houses of Parliament for the purpose of choosing a person to occupy a vacant seat in the Legislative Council of the Parliament under s 27A of the Constitution Act 1975 (Vic) and, if so, can mandamus lie to require the first defendant to advise the Governor to convene a joint sitting of the Houses of Parliament?
That summons has returned before me for determination. Neither party submitted that the procedure under r 47.04 is inappropriate and I was invited to consider the application on its merits.
For the reasons that follow, the questions will be answered:
1. Yes.
2.It is not necessary to answer this question.
Assumed facts
For the purpose of the proceeding, including this application, the parties agreed the following facts:
(a) In the general election of the Parliament of Victoria held on 29 November 2014, Mr Damian Drum was elected as a member of the Legislative Council representing Northern Victoria Region.
(b) At the time that Mr Drum was elected, he was endorsed as a candidate in the election by the National Party Australia – Victoria, a registered political party, the name of which was printed adjacent to Mr Drum’s name on the ballot paper under s 74 of the Electoral Act2002 (Vic).
(c) On about 29 May 2016, Mr Drum, by letter to the Governor, resigned as member for Northern Victoria Region in the Legislative Council.
(d) On about 8 August 2016, the National Party Australia – Victoria nominated the plaintiff, a member of the Nationals, to fill the casual vacancy created by Mr Drum’s resignation.
(e) On 17 August 2016, the Legislative Council passed a resolution in the following terms:
That this House meets the Legislative Assembly for the purpose of sitting and voting together to choose a person to hold the seat in the Legislative Council rendered vacant by the resignation of Mr Damian Drum and proposes that the time and place of such a meeting be the Legislative Assembly on Wednesday, 17 August 2016 at 6:45 pm or, at the latest, Thursday, 18 August 2016 at 4:45 pm.
(f) Later on 17 August 2016, the Legislative Assembly passed a resolution in the following terms:
That this house disagrees with the proposal of the Legislative Council to hold a joint sitting on Wednesday, 17 August 2016 at 6:45 pm or, at the latest, Thursday, 18 August 2016 at 4:45 pm.
The plaintiff invited an inference from the debate in the Assembly that the Assembly will not further act on the Council’s message proposing a joint sitting. I do not consider it appropriate to draw that inference, recalling the old adage that a week is a long time in politics.[1] I have not, in any event, looked at the debate in the Assembly.
[1]A quote made famous by British Prime Minister, Harold Wilson.
The issues
In summary, the defendants submitted that the proceeding gives rise to no justiciable controversy between the parties It is well established that the internal proceedings of Parliament are non-justiciable unless questions concerning those proceedings arise incidentally to a justiciable dispute arising under the general law, or concern the validity of a law passed by Parliament. The plaintiff seeks relief that is directed to achieving judicial intervention in the internal proceedings of Parliament, in the absence of any justiciable dispute. Such a claim is not supported by authority and the plaintiff needs to overturn fundamental and long-settled doctrine to succeed.
If the court concludes that there is a justiciable controversy raised by the Originating Motion, the second question raised by the summons becomes relevant. On that question, the defendants submitted the Governor has no power to convene a joint sitting of the Houses for the purposes of s 27A of the Constitution Act. Even if such a power exists, it does not follow that the first defendant is subject in any circumstances to a legal duty to advise the Governor to convene a joint sitting, and mandamus cannot lie to compel him to do so.
In summary, the plaintiff submitted that the court is not being asked to examine the internal workings of the Parliament. It is not in issue that the plaintiff is qualified to be elected a member of the Council or that the plaintiff was nominated for the vacancy by the relevant registered political party. Further, the parties are agreed that a joint sitting, although required, has not yet been held.
The plaintiff submitted that the court must determine two questions of construction of the Constitution Act. The first question is whether the requirement under s 27A of the Constitution Act that the Parliament of Victoria must meet to fill a casual vacancy in the Legislative Council has any, and if so what, temporal component. The second question is whether, in lieu of the two Houses of the Parliament agreeing so amongst themselves, the Governor of Victoria is empowered, on advice from the Premier, to convene a joint sitting of the Houses of Parliament.
The plaintiff submitted that these questions did not concern what the Parliament must do when it is in session, but, rather, what the Premier must do to fulfil his ministerial duties to ensure that a joint session of the Houses of Parliament is convened. That is because the plaintiff submitted that his claim in the proceeding is for relief under the general law by mandamus requiring the Premier to advise the Governor to convene a joint sitting of the Parliament on such date as the court shall fix for the purpose of choosing the plaintiff to fill the casual vacancy in the Council. Questions concerning the internal proceedings of the Parliament only arise incidentally to that justiciable dispute. Accordingly the proceeding falls outside the limit of the principle of exclusive cognisance.
Relevant statutory provisions
Section 27A of the Constitution Act relevantly states:
Filling of casual vacancies in the Council
(1)Subject to this section, if a casual vacancy occurs in the seat of a member of the Council, a person must be chosen to occupy the vacant seat by a joint sitting of the Council and the Assembly.
...
(3)Subsection (4) applies if a casual vacancy occurs in the seat of a member of the Council who was at the time that the member was elected endorsed as a candidate in the election by a registered political party the name of which was printed adjacent to the name of the candidate on the ballot-paper under section 74 of the Electoral Act 2002 .
(4)If this subsection applies, the joint sitting of the Council and the Assembly must choose a member of the registered political party referred to in subsection (3) nominated by that registered political party if the registered political party nominates a member of the registered political party for the vacancy who would otherwise be qualified to be elected a member of the Council.
…
(6)Subject to subsection (7), the joint sitting of the Council and the Assembly is to be conducted in accordance with the rules adopted by the members present at the joint sitting.
(7)At the joint sitting of the Council and the Assembly—
(a) the members have the same privileges and immunities as the members of the Assembly in relation to proceedings before that House;
(b) a question—
(i)other than a question to which subparagraph (ii) applies, is to be decided by a majority of the votes cast by the members present at the joint sitting;
(ii)for the purpose of subsection (5) …;
(c) in the event of an equality of votes on a question, the question is to be taken to have been determined in the negative.
Section 20 of the Constitution Act states:
Summoning of Parliament
The Governor may by proclamation summon the Council and the Assembly to meet for the despatch of the business of the Parliament on any day not less than six days from the date of such proclamation or in a case of emergency upon such shorter notice as he may think fit.
Section 8 of the Constitution Act states:
Convocation, prorogation and dissolution
(1)The Governor may by proclamation or otherwise fix such places within Victoria and subject to this Act such times for holding every session of the Council and Assembly and may vary and alter the same respectively in such manner as he thinks fit.
(2)Subject to subsection (3) the Governor may if he thinks fit by proclamation or otherwise from time to time—
(a) prorogue the Council the Assembly or both the Council and the Assembly; or
(b)dissolve the Assembly.
Section 19 of the Constitution Act states:
Privileges powers etc. of Council and Assembly
(1)The Council and the Assembly respectively and the committees and members thereof respectively shall hold enjoy and exercise such and the like privileges immunities and powers as at the 21st day of July, 1855 were held enjoyed and exercised by the House of Commons of Great Britain and Ireland and by the committees and members thereof, so far as the same are not inconsistent with any Act of the Parliament of Victoria, whether such privileges immunities or powers were so held possessed or enjoyed by custom statute or otherwise.
(2)The Parliament may by Act legislate for or with respect to the privileges immunities and powers to be held enjoyed and exercised by the Council and the Assembly and by the committees and the members thereof respectively.
Section 87E of the Constitution Act relevantly states:
Advice to Governor
Where the Governor is bound by law or established constitutional convention to act in accordance with advice—
(a)the Executive Council shall advise the Governor on the occasions when the Governor is permitted or required by any statute or other instrument to act in Council; and
(b)the Premier (or, in the absence of the Premier, the Acting Premier) shall tender advice to the Governor in relation to the exercise of the other powers and functions of Governor.
The plaintiff’ submissions
The plaintiff submitted that:
(a)The principle of exclusive cognisance is inapplicable. The relief ultimately sought by the plaintiff is mandamus directed to the Premier, not as a Parliamentarian but as representing the Executive and charged by s 87E(b) with the duty to advise the Governor in relation to the exercise of the Governor’s powers and functions in respect of summoning the Houses of Parliament to meet for the despatch of business (see s 20).
(b)The plaintiff’s application for mandamus to compel the performance of the Premier’s public duty is a justiciable controversy arising under the general law. Because it is arguable that mandamus may be available to the plaintiff, the defendant’s application should be dismissed and the proceeding be permitted to go to trial.
(c)Section 27A of the Constitution Act lays out a mandatory procedure to be followed to fill a casual vacancy in the Legislative Council. An occasion which mandates the exercise of that power has arisen. The procedure, in the present circumstances,[2] requires a joint sitting of both Houses and the plaintiff submitted that the vacancy must be filled in accordance with s 27A.
[2]The plaintiff submitted that the only excuse for a vacancy not being filled where the requirements of s 27A are otherwise met is found in ss 27A(2), namely, where the casual vacancy occurs three months or less before the day on which the seat would have become vacant due to the expiry of the Assembly.
(d)There are only two options to convene a joint sitting of the Houses, which are:
(i)by agreement, as was attempted, or by invitation directly between the Houses; or
(ii)by summons of the Governor on the advice of the Executive Council.
The plaintiff accepts that neither option is referenced in s 27A.
(e)The refusal of the Assembly to agree to the proposal put to it by the Council necessitates the intervention of the Governor on the Premier’s advice to ensure that the Constitution Act is observed. The court is being asked to construe and declare the meaning of s 27A in order to precisely identify the duty to be enforced by mandamus.
(f)The court is not being asked to interfere in the internal workings of Parliament when construing and declaring the meaning of s 27A, specifically, when and how it requires the Parliament to meet. The plaintiff submitted that convening a joint sitting is not of itself an internal procedure of Parliament. The court is not being invited to dictate what the Parliament must decide once both Houses meet or to take any interest in what occurs once the joint sitting is convened.
(g)Section 27A requires that a joint sitting must be held as soon as is reasonably practicable after the relevant registered political party has nominated the person to fill the vacancy or, alternatively, no later than the third day on which either the Council or the Assembly or either of them sits after the nomination date.
(h)Whatever be the proper construction of the temporal limitation on convening a joint sitting – a matter for trial – that time has passed and the Parliament has not met in joint sitting to fill the casual vacancy. There presently subsists non-compliance by the Parliament with s 27A of the Act because the casual vacancy remains unfulfilled. Parliament has failed to follow the s 27A procedure.
(i)The duty of the Governor to summon a joint meeting is enlivened. The Governor has the power to summon the Houses for a joint sitting under s 20 but, by reason of s 87E, exercises the power to summon a meeting of Parliament in accordance with the advice of the Premier, by established constitutional convention.[3] It follows from s 87E that the Premier’s advice is required for the Governor to exercise the power found in s 20 to summon the Council and the Assembly to meet for the dispatch of the business of the Parliament, because that power is not exercised by the Governor in Council.
(j)Filling a casual vacancy in the Council is clearly part of the ‘business of the Parliament’ by virtue of s 27A. Section 20 expressly empowers the Governor to summon the Parliament for ‘dispatch of the business of the Parliament’. The plaintiff disputed that Clayton v Heffron[4] stands for the proposition that an express grant of power is required for the Governor to call a joint sitting of the Houses. Alternatively, the combined effect of ss 20 and 27A is sufficient to empower the Governor to summon the joint sitting.
(k)The Governor’s general power (acting on advice) to convene a joint sitting may be compared to the procedure under s 65F of the Constitution Act which specifically identifies when and how the Premier may advise the Governor in circumstances where the Houses are deadlocked about the passage of legislation.
(l)The Premier’s public duty to ensure that the Constitution is complied with, and accordingly to give such advice to the Governor, arguably arises in the following way. Because the Parliament has not filled the casual vacancy at a joint sitting within the temporal constraints, the public duty falls on the Premier to advise the Governor to summon the Houses of Parliament to meet in joint session for the despatch of business, namely filling the casual vacancy in accordance with s 27A. The obligation to do so has crystallised and the Premier, it must be supposed, has failed to discharge that duty. For that reason the casual vacancy continues to be unfilled and Parliament is, and remains, in default in compliance with s 27A. The Premier is susceptible to mandamus in respect of that unperformed duty. There is no precedent for or against the existence of such a duty in these circumstances and the question of whether it exists is properly seen as justiciable.
(m)The courts should not resist an opportunity to keep the Crown clear of controversy[5] that may arise if the Governor receives no advice from the Premier but receives advice that she is not bound to consider (from for example the Nationals), which puts her in the position of having to consider whether, not having received advice lawfully required to give effect to the Constitution from the Premier, she should exercise reserve power. Mandamus directed at the Premier requiring him to give the Governor advice that a joint sitting must be convened to achieve due observance of the Constitution Act avoids the prospect of the Crown becoming involved in constitutional controversy.
(n)Thus the proceeding is outside the limit of the principle of exclusive cognisance.
(o)Further, the timing of a joint sitting falls outside the exclusive cognisance rule, because when the Parliament sits has never been a privilege of the Parliament. As s 20 now confirms, Parliament has always been susceptible to being summoned by the Crown and the statutory text clearly permits a summon to a joint sitting. Section 8 of the Act confirms the Governor’s powers in this respect.
(p)The veil of exclusive cognisance, suggested by the defendants, is excluded by s 19 of the Constitution Act, because by reason of s 27A the Houses (whether separately or together) do not enjoy any continuing privilege, immunity, or power which would permit the Houses to act in a manner contrary to s 27A. So much is evident from the failure to include such a reservation in the Constitution (Parliamentary Reform) Act 2003 (Vic). The plaintiff asserted an inconsistency between s 27A and the resolution of the Assembly by which the Assembly has acted in a manner that is contrary to s 27A. In other words, according to the submission, the Assembly does not enjoy any privileges, immunities or powers that permit it to decline a joint sitting for the purpose of filling a casual Council vacancy pursuant to s 27A. Further, this inconsistency arises antecedent to, not as a part of, the internal proceedings of Parliament.
[3]The plaintiff did not submit that the Governor should exercise any reserve power, if such a power exists in Victoria.
[4](1960) 105 CLR 214.
[5]This submission was developed by reference to the possible existence of reserve powers in the Governor to refuse illegal or improper advice where the legality of government action could be remitted to the courts that is explored by Taylor G., in The Constitution of Victoria, 2006, The Federation Press, at 135.
The key issue in this dispute is whether the proceeding invokes the internal proceedings of Parliament. In other words what is the limit of the principle of exclusive cognisance and is it inapplicable because the questions identified by the defendants as concerning the internal proceedings of Parliament arose incidentally to a justiciable controversy, a claim to mandamus.
Exclusive cognisance
The plaintiff does not dispute that the internal proceedings of Parliament are non-justiciable. He accepts that the principle is well established,[6] but it is subject to the exception that where questions concerning the internal proceedings of Parliament arise incidentally to a justiciable controversy under the general law, a court may determine the existence of a privilege, immunity, or power; but not the occasion or matter of its exercise.[7]
[6]Stockdale v Hansard (1839) 9 Ad & E 1, 118 (Denman CJ), 233 (Coleridge J); 112 ER 1112, 1157, 1199; Osborne v Commonwealth (1911) 12 CLR 321 , 336 (Griffith CJ), 355 (O'Connor J), 363 (Isaacs J); McDonald v Cain [1953] VLR 411, 419 (Gavan Duffy J), 436 (O'Bryan J); R v Richards; Ex parteFitzpatrick and Browne (1955) 92 CLR 157, 163; Cormack v Cope (1974) 131 CLR 432, 454 (Barwick CJ), 465 (Menzies J); Western Australia v Commonwealth (Native Title Act Case) (1995) 183 CLR 373, 482 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ); Egan v Willis (1998) 195 CLR 424, 438-439 [5].
[7]Bradlaugh v Gossett (1884) 12 QBD 271, 274 (Lord Coleridge CJ); R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157, 163; Egan v Willis (1998) 195 CLR 424, 438-439 [5].
Nonetheless, to properly consider the submissions, it is desirable to set out, from the cases cited in argument, the principle of exclusive cognisance. In some cases, the principle of exclusive cognisance has been invoked in similar circumstances to those of the plaintiff and on each occasion the court has declined to interfere in the internal proceedings of Parliament. The plaintiff has not been able to direct my attention to a single instance where a court has accepted jurisdiction to grant mandamus requiring a Premier to advise the Crown to act to rectify an apparent instance of constitutional non-compliance related to the internal workings of the Parliament.
In Regina v Chaytor,[8] members of the House of Commons had been charged with false accounting in respect of claims for members’ expenses and allowances. They asserted their claims, being for expenses and allowances by which they were enabled to carry out parliamentary business, were protected by parliamentary privilege as part of ‘proceedings in Parliament’ for the purposes of article 9 of the Bill of Rights (1689) and under the exclusive cognisance of Parliament to regulate its own internal affairs. What was at issue was the reach of the phrase ‘proceedings in Parliament’, although the circumstances in which the reach of the phrase was contentious were different to those of the plaintiff.
[8][2011] 1 AC 684.
Lord Phillips of Worth Matravers PSC stated:[9]
[9]Ibid, 712 [63]-[64] (citations omitted).
This phrase describes areas where the courts have ruled that any issues should be left to be resolved by Parliament rather than determined judicially. Exclusive cognisance refers not simply to Parliament, but to the exclusive right of each House to manage its own affairs without interference from the other or from outside Parliament. The boundaries of exclusive cognisance result from accord between the two Houses and the courts as to what falls within the exclusive province of the former. Unlike the absolute privilege imposed by article 9, exclusive cognisance can be waived or relinquished by Parliament. … The areas subject to exclusive cognisance have very significantly changed, in part as a result of primary legislation.
The exclusive cognisance of Parliament was originally based on the premise that the High Court of Parliament had its own peculiar law which was not known to the courts. Blackstone's Commentaries on the Laws of England, observed:
“It will be sufficient to observe, that the whole of the law and custom of Parliament has its original from this one maxim; ‘that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates and not elsewhere’.”
In Stockdale v Hansard, Denman CJ said of all internal proceedings of the House of Commons: “With respect to them, I freely admit that the courts have no right to interfere, nor, perhaps, any regular means of obtaining information.”
In Chaytor, Lord Phillips approved of dicta of Lord Coleridge CJ and Stephen J in Bradlaugh v Gossett,[10] a decision based in somewhat similar circumstances to the present application. Bradlaugh states the proposition that it is for the Houses of Parliament to interpret, apply and enforce the laws relating to the internal proceedings of Parliament and the reach of that phrase extends to the interpretation of statutes that govern the regulation of its own proceedings.
[10](1884) 12 QBD 271, based on Stockdale v Hansard (1939) 9 Ad & E 1.
Bradlaugh had been elected to the House of Commons. He required the Speaker to call him to the table to take the oath and the Speaker declined to do so. The House resolved that the Serjeant at Arms should exclude Bradlaugh from the House. Bradlaugh then sought a declaration that the resolution of the House was beyond the power and jurisdiction of the House and an injunction restraining the Serjeant at Arms from complying with the resolution. The court refused the injunction, because the dispute related to the internal proceedings of the House and the court had no power to intervene.
Lord Coleridge CJ held:
What is said or done within the walls of Parliament cannot be inquired into in a court of law … The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive.
Stephen J similarly held:
I think that the House of Commons is not subject to the control of Her Majesty's courts in its administration of that part of the statute law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable.
Stephen J also stated, in a passage apposite in the present circumstances:
Whatever may be the reasons of the House of Commons for their conduct, it would be impossible for us to do justice without hearing and considering those reasons; but it would be equally impossible for the House, with any regard for its own dignity and independence, to suffer its reasons to be laid before us for that purpose, or to accept our interpretation of the law in preference to its own. It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that interpretation should be erroneous, this court has no power to interfere with it directly or indirectly.
This court applied and endorsed the principle of exclusive cognisance in the context of entitlement to membership of the Legislative Council of the Parliament of Victoria in Ellis v Atkinson.[11] Section 55 of the Constitution Act provides that a member’s seat shall become vacant in defined circumstances that include becoming concerned or interested in any bargain or contract with the Crown or any profit, benefit or emolument arising therefrom. The plaintiffs were electors in the defendant’s seat who sought a declaration that the defendant’s seat was vacated by operation of s 55 in the context of the defendant’s activities allegedly in contravention of that section. The defendant successfully invoked the principle of exclusive cognisance.
[11][1998] 3 VR 175.
Vincent J (as he then was) held that as at 21 July 1855, the House of Commons possessed the exclusive power to determine all questions concerning the qualification of persons to sit and vote as its members.[12] By force of s 19 of the Constitution Act the Houses of the Victorian Parliament also enjoy that exclusive power.
[12]Ibid, 179.
Citing Bradlaugh for the general proposition that it is for Parliament to regulate its own proceedings,[13] Vincent J stated that, subject to statutory modifications where Parliament chose to delegate that power to another body,[14] the situation remained in Australia that the ‘validity of elections, and kindred questions such as that of membership, were … within the exclusive privilege of elective houses of legislature.’[15] The plaintiffs failed to establish that the House of Commons did not have exclusive power with respect to vacancies and the disqualification of its members.
[13]Ibid, 180.
[14]Compare the statutory scheme for the Court of Disputed Returns in Victoria, see Part 8 of the Electoral Act 2002.
[15]Ibid, 181, citing Holmes v Angwin (1906) 4 CLR 297, 307-308 (Barton J).
Pausing for a moment, I did not understand the plaintiff to contend otherwise; his point related to the effect on that power of the subsequent enactment of s 27A. Section 19(2) preserves the power of the Parliament to legislate with respect to parliamentary powers, privileges and immunities. It was not in dispute on this application that the Victorian Parliament by the force of s 19 and s 27A has the privilege and the power to fill a casual vacancy in the Council, which is only constrained by the procedure laid down in s 27A.
Although the plaintiff’s immediate assertion is that he is entitled to a declaration and/or mandamus in respect of the refusal of the Assembly to agree to the Council’s proposal, what the plaintiff ultimately asserts in this proceeding is his immediate right to sit, and to vote, and to collect the entitlements of being a member of Parliament because s 27A(4) mandates that consequence in his circumstances once a joint sitting is convened. The plaintiff’s entitlement to the financial benefits of being a member of the Council cannot confer on the court a power to decide a question that was otherwise beyond its jurisdiction and the fact that the plaintiff is unable to receive any financial benefits or retrospective back pay of such benefits is irrelevant. As Napier J observed in Stott v Palmer,[16] after discussing Bradlaugh:
The reasoning in that case affirms the general principle that while the Courts of law will not interfere with any questions of right exercisable within the House itself or concerning the procedure of the House, they will not allow a claim of privilege to hinder them from hearing and determining any question of fact or law, when a determination is necessary for the purpose of doing justice between party and party. The distinction is between rights to be exercised within the House, and rights to be exercised out of and independently of the House. Whenever any question arises with respect to a right to be exercised within the House, and in particular the right to sit and vote, it must be heard and determined by the House, but any question with respect to a right to be exercised out of and independently of the House must be determined by the Courts independently of the House. The judgments in that case give a conclusive answer to the argument that the House of Assembly cannot alter the law, or determine the question of the vacancy otherwise than according to law.
…
If the question of jurisdiction had to be determined without recourse to sec 43 of the Constitution, I should regard the point as one of difficulty and doubt, but I think that the Statute settles the matter. It seems to me that to speak of the plaintiff's right to sit and vote as a question which arises incidentally upon this claim for the statutory salary attaching to the office is to put the cart before the horse.
[16][1939] SASR 98, 104.
In Egan v Willis,[17] the High Court of Australia considered the doctrine of exclusive cognisance in circumstances that differed from those of the present plaintiff. Egan was a member of the New South Wales Legislative Council. He was also the Leader of the Government in that House, and, as a minister, a member (Deputy President) of the Executive Council. The Council adjudged Egan to be in contempt of it for failing to produce documents that it had requested. Egan preferred to observe a Cabinet decision not to produce such documents to the Parliament. The Council suspended Egan from the service of the House and ordered his removal by being escorted by the Usher of the Black Rod from the chamber and the Parliamentary precincts. Egan sought a declaration that the Council resolution was invalid and that his removal from the House constituted a trespass. The declaration was refused and on appeal to the High Court the only question before it was whether there was any justification for the trespass by reason of Egan’s removal from the chamber to the limit of the Parliamentary precinct.
[17](1998) 195 CLR 424.
The plurality, Gaudron, Gummow and Hayne JJ, emphasised at the outset that the powers and privileges of a legislative chamber should not be examined in the absence of a justiciable controversy. Their Honours stated:[18]
We emphasise that, even if an application for a bare declaration of the nature we have described would have been justiciable (as to which we express no concluded opinion), at least as a matter of discretion, a suit constituted solely to obtain such relief ordinarily ought not be entertained. Questions respecting the existence of the powers and privileges of a legislative chamber may present justiciable issues when they are elements in a controversy arising in the courts under the general law but they should not be entertained in the abstract and apart from a justiciable controversy. Declaratory relief should be directed to the determination of legal controversies concerning rights, liabilities and interests of a kind which are protected or enforced in the courts. This is so even though in the area of public law the ground of equitable intervention has not been limited to the protection of any particular proprietary or legal entitlement of the plaintiff.
[18]Ibid, 438-439 [5].
The plurality described the limit on the extent to which courts will examine what occurred in a House of Parliament as identified in R v Richards; Ex parte Fitzpatrick and Browne[19] where Dixon CJ, speaking for the Court, said that:
It is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise.
[19](1955) 92 CLR 157, 162.
The plurality observed of that dicta that:[20]
Although this was said in a case arising from action taken by one of the Houses of the Commonwealth Parliament, it has equal application to the present case. The corollary is, to adopt what McLachlin J said with respect to the privileges of the Nova Scotia House of Assembly, that for the courts to examine the content of particular exercises of valid privilege "would trump the exclusive jurisdiction of the legislative body" and that intervention by the courts is only "at the initial jurisdictional level".
[20](1998) 195 CLR 424, 445-446 [25]-[27] .
McHugh J emphasised the principle of exclusive cognisance. He stated:
Common law courts will not examine the administration of the law - including statute law - within the walls of Parliament when the matters involved relate only to the internal procedure of a House of Parliament. What is said or done within the walls of a Parliamentary chamber cannot be examined in a court of law.
McHugh J characterised the issue that arose in Egan as concerning only the relationship between the House and one of its members and the internal administration of the business of the House and concluded that it was for the Council, and the Council alone, to determine the facts of the case and whether they fell within the privilege or power to suspend for obstruction. Because the Council has the power to suspend a member for obstruction of its business, the validity of its resolution could not be impeached in the Supreme Court or elsewhere.
For present purposes, Egan emphasises the principle that it is inappropriate for a court to make a bare declaration as to the internal proceedings of Parliament and that an independent controversy arising under the general law is necessary in order for a court to entertain a question as to the existence and scope of the powers and privileges of a legislative chamber.
Mandamus and the Premier
In oral submissions, the plaintiff developed the contention that his entitlement to mandamus as set out above is justiciable as an independent controversy arising under the general law that put the proceeding beyond the limit of the principle of exclusive cognisance.
Generally stated, mandamus may be granted to a plaintiff with standing on proof that the defendant has actually or constructively failed to perform a duty of a public nature.
The plaintiff’s submission proceeds on a misconception, which is that the duty of a public nature reposing in the Houses of Parliament by force of s 27A can be transposed into an executive duty that is possibly amenable to mandamus and beyond the limit of exclusive cognisance. In that transposition, the occasion and manner of exercise of the Parliament’s undoubted privilege to fill a casual vacancy in the Council ceases to be a matter of public duty for the Parliament, becoming a matter of public duty for the Premier.
For present purposes, I will assume without deciding two matters in the plaintiff’s favour. The first is that the Premier may be subject to a public duty enforceable by mandamus to advise the Governor in relation to the exercise of powers and functions where the Governor is bound by law or established constitutional convention to act in accordance with advice. The second matter is that by the combined force of ss 20, 27A and 87E(b), the Governor is empowered on the advice of the Premier, but not otherwise, to convene a joint sitting of the Houses of Parliament for the dispatch of the business of filling a casual vacancy in the Council.[21] As the second question posed on this application reveals, the defendants reject this proposition but it is unnecessary to resolve that controversy.
[21]On this question, differing submissions were put as to the principles emerging from Clayton v Heffron (1960) 105 CLR 214 that I need not resolve.
Each premise identified by the plaintiff for the enforceable duty of the Premier to give to the Governor the advice suggested by the plaintiff[22] is founded in the notion of dereliction of duty by the Parliament in not having presently convened a joint sitting of the Houses. The plaintiff would submit at a trial that the Parliament has not complied with s 27A, or that its duty under s 27A remains unperformed, or that more generally, there is an unconstitutional vacancy in the Council. What must be established is a dereliction of duty by the Parliament in one or more of these senses that underpins a public duty on the Premier. A critical issue in that inquiry would be the temporal question that was not explicitly addressed when s 27A was enacted. That inquiry is quintessentially an inquiry into the administration of the law, including statute law, concerning the internal procedures of the Houses in respect of a joint sitting. Whether the two houses of the Parliament sit in a joint sitting and when and how that sitting occurs, as well as what business is conducted at that sitting are matters of the administration of Parliament, its own internal proceedings.
[22]As appears from paragraph 3 of the Originating Motion set out above at [2].
It cannot be said that the court would be construing the Act or investigating the internal processes of the Parliament incidentally to the resolution of an independent controversy under the general law. The initial inquiry necessary to establish any entitlement to relief by mandamus must address questions about the occasion and manner of exercise by the Parliament of the privilege and power that it undoubtedly possesses to fill a casual vacancy. Such questions are central to establishing not only the existence of a duty in the Premier to advise the Governor to remedy circumstances in respect of which Parliament is said by the plaintiff to have been derelict, but also whether such duty has become immediately exercisable.
The Assembly might consider that Parliament has a continuing obligation to fill the vacancy that need not be immediately satisfied because it does not construe s 27A to require a joint sitting of the Parliament to fill a casual vacancy to be an absolute priority. The Assembly may have a different view of the temporal requirements of the section. It may, for example, consider that the section contemplates a joint sitting within a reasonable time and that a reasonable time has not yet expired.
The court would be required, in order to determine when the Premier has actually or constructively failed to perform the public duty alleged by the plaintiff, to examine the conduct of the Assembly, including whether its interpretation of the Constitution Act is correct. The absolute and exclusive right of the Parliament to interpret the law in respect of, and to administer, its proceedings would of necessity be compromised. The assumed power in the Governor to summon a joint sitting on advice would be solely concerned with rights to be exercised in the Houses and would not be concerned with rights to be exercised out of and independently of the Houses.
The assumed facts do not go so far as to establish that the procedures under s 27A have failed. There is no impediment to a future invitation issued from the Assembly to the Council to attend upon it for a joint sitting, nor is there any impediment to a renewed request from the Council to the Assembly for such an invitation. For the court to adjudicate on a claim to mandamus in the terms sought by the plaintiff such impediments must be assumed, or proved, yet none is agreed or alleged for obvious reason. The court would need to find that it was no longer open to the Houses to convene a joint sitting at a future time, when as I noted, given the vagaries of politics, circumstances can readily change.
The nature of the relief sought by the plaintiff is also instructive. The plaintiff does not require an order that the Premier perform his duty to advise the Governor as he considers appropriate. The plaintiff seeks an order that the Premier must forthwith give the Governor the advice that the plaintiff considers proper to achieve his appointment as soon as practicable as the member for Northern Victorian Region. The order would mandate the time, place and business of the joint sitting and reduce the role of the Parliament in exercising its undoubted privilege to fill a casual vacancy to that of rubber stamping the will of the court.
The essential inquiry remains focussed on the absence of an explicit temporal requirement in s 27A for a joint sitting of the Houses. I am satisfied that the court is bound to accept that the time and place for, and business of, a joint sitting of the Houses is not a matter for this court. It is a matter for the Parliament as the principle of exclusive cognisance makes clear. If it be found wanting in the discharge of its duty, it is accountable not in a court but before the electorate. In my view, that proposition is fundamental.
I accept the defendant’s submission that the nature of the relief sought by the plaintiff in this proceeding demonstrates that its subject matter is non-justiciable. The plaintiff neither challenges the validity of any law passed by Parliament nor raises any claim under the general law in which questions respecting the existence of the powers and privileges of the Parliament are properly elements in a controversy that is otherwise justiciable before the court. The relief sought only concerns the internal proceedings of the Houses of Parliament, being the time, place, and circumstances in which both Houses must sit, and the business which they are to dispatch, when a casual vacancy has occurred in a seat in the Council and s 27A(4) of the Constitution Act applies.
Accordingly, I reject the plaintiff’s submission that its claim to relief by paragraph 3 of the Originating Motion renders the principle of exclusive cognisance inapplicable.
Exclusive cognisance generally
Having concluded that this proceeding is within the limits of the principle of exclusive cognisance, there are at least two grounds for concluding that accepting the existence of, or otherwise exercising, jurisdiction in this proceeding will infringe the principle of exclusive cognisance. First, s 27A is silent about the mechanism for convening a joint sitting of the Houses and no temporal limit for a joint sitting is explicitly specified. Resolution of the issue involves construction of the relevant provisions of the Constitution Act in respect of an internal procedure, namely convening a joint sitting, which is to prefer the construction of the court to the construction of the Assembly. Secondly, for the reasons already given, to act judicially in granting any relief, whether declaration or mandamus, the court must investigate and pronounce upon the conduct, or the reasons for it, of the Assembly, which is to inquire into what is said or done within the walls of a Parliamentary chamber.
The plaintiff submitted that the primary construction question was when and how s 27A requires the Parliament to meet, but the enquiry cannot be limited to simply determining what, as a matter of law, is the proper construction of s 27A. In order to raise any question before the court, I must necessarily assume that the conduct of the Assembly in declining to agree to the particular request of the Council for a joint sitting is not consistent with the Constitution Act. The failure of the Act to provide a specific mechanism with temporal limits does not provide any warrant for the court to read in or imply provisions to that effect because the construction of legislation in relation to the internal proceedings of the Parliament is a matter for the Parliament. The mechanism for convening a joint sitting, including whatever temporal limit applies – whether that be a reasonable time, as soon as is practicable or some other constraint – is left by the Constitution Act to the Parliament of the day as a matter of Parliamentary procedure or administration. Quintessentially, ‘when’ and ‘how’ are questions reserved for the Houses of Parliament and not for the Courts or the Executive.
The statutory text shows the Parliament intended this to be so when it enacted s 27A in 2003.[23] That reform came a mere five years after Vincent J commented, albeit in a different context, in Ellis v Atkinson:[24]
As I suggested earlier, it is, to put it mildly, unfortunate that the entitlement of a member of the Legislature of this State to sit and vote on matters of great public importance cannot be determined through some independent and impartial process, and may ultimately depend upon the balance of political power within the House itself.
[23]Constitution (Parliamentary Reform) Act 2003 (Vic).
[24][1998] 3 VR 175, 186.
Accepting the plaintiff’s invitation that the court determine these questions necessarily creates, at the instance of a person who is not a member, an irreconcilable conflict between the courts and the Parliament, in this case with the Assembly. The plaintiff will, at trial, invite the court to conclude that on its proper construction, s 27A requires the Assembly to act in respect of the casual vacancy as soon as practicable or not later than the third day upon which either the Assembly and the Council or either of them sits after the relevant registered political party nominates a person to fill the vacancy and to conclude that the Assembly’s resolution demonstrates that, contrary to its obligation under s 27A, it will not do so. Whatever be the apparent basis for its resolution, the court could not exercise judicially the discretion whether to grant mandamus to require a joint sitting to be convened contrary to this resolution without hearing and considering evidence about the reasons for the Assembly’s resolution. The enquiry would extend, quite plainly, into an examination of the internal proceedings of the Assembly and require that its deliberations in respect of the resolution be laid bare for the court’s assessment. That inquiry would be in plain breach of the principle of exclusive cognisance.
I do not accept as valid the plaintiff’s distinction between the task of ascertaining and declaring the meaning of s 27A and that of examining the conduct of either or both of the Council and the Assembly once a casual vacancy has occurred. I am satisfied that the conduct of each of the Council and the Assembly when acting in respect of a casual vacancy in the Council invokes the exclusive privileges and powers of the Parliament that it possesses by virtue of ss 19 and 27A of the Constitution Act to determine all questions concerning a vacancy in the Council. How the Parliament interprets and applies s 27A is a matter for it and its deliberations and its conclusions, including its construction of the applicable legislation, are immune from review by the Supreme Court. The doctrine of exclusive cognisance applies with the consequence that the relief which the plaintiff seeks in this proceeding is not justiciable before this court.[25]
[25]I accept the defendant's submission that it is unnecessary in this proceeding to resolve whether justice ability is a question of jurisdiction or discretion. See Geoffrey Lindell, ‘The Justiciability of Political Questions: Recent Developments’ in HP Lee, George Winterton (eds), Australian Constitutional Perspectives (Law Book Co., 1992) 180, 183; Cheryl A Saunders ‘The Concept of Non-Justiciability in Australian Constitutional Law’ in D J Galligan (ed), Essays in Legal Theory (Melbourne University Press, 1984) 29-30.
The first preliminary question raised by the defendants summons 31 August 2016 will be answered in the affirmative.
It is unnecessary to consider any other question or submission made by the parties.
The Originating Motion will be dismissed and I will hear counsel on the question of costs.
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