No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
In Egan v Willis, the High Court declared that the New South Wales Legislative Council had a common law power to call for state papers from Ministers in the House. The case's greatest constitutional significance, however, may be its effect on the relationship between the Parliament and the Court. By making declarations about the relationship between a Minister and the House, the Court appears to have taken on a new role of arbitrating internal parliamentary proceedings independent of any substantive issue outside the House. While such intervention may help secure the rule of law within the legislature, it has traditionally been held that the internal proceedings of the legislature should be subject to the control of the people's elected representatives alone. The need for independence between the legislative, judicial and executive arms of government and their effective operation has, within the British and American constitutional traditions, led to the identification of certain issues as being outside the jurisdiction of the courts or otherwise not justiciable.
The author wishes to thank the referee for the Federal Law Review, Professor Tony Blackshield, Elizabeth McCrone, Tony Davies and Elizabeth Keith for their comments on earlier drafts. The views and errors belong to the author.
1 Egan v Willis (1998) 195 CLR 424; Egan v Willis & Cahill (1996) 40 NSWLR 650.
2 (1884) 12 QBD 271.
3 NSW LC PD, 1 May 1996 at 577.
4 NSW LC, Minutes of the Proceedings of the Legislative Council, 2 May 1996 at 117. Set out in the reasons of Gleeson CJ in the Court of Appeal: (1996) 40 NSWLR 650 at 656.
5 NSW LC, Minutes of the Proceedings of the Legislative Council, 2 May 1996 at 117.
6 Egan v Willis (1998) 195 CLR 424 at 438.
7 Egan v Willis '>' Cahill (1996) 40 NSWLR 650.
8 Standing Order 262, Standing Rules and Orders and Sessional Orders of the Legislative Council, November 1985.
9 (1998) 195 CLR 424 at 439.
10 Ibid at 479-480 per McHugh J.
11 Limon, D and McKay, W R (eds), Erskine May's Treatise of the I.aw, Privilegrs, Proceedings and Usage of Parliament (22nd ed 1997) at 153Google Scholar.
12 For a general summary of the situation in Australia, see Campbell, E, Parliamentary Privilege.' in Australia (1966) ch 6Google Scholar.
13 Lindell, G, “The Justiciability of Political Questions: Recent Developments” in H P Lee and G Winterton (eds), Australian Constitutional Perspectives (1992) at 183Google Scholar.
14 G Lindell, ibid at 183-4; cf Buck v Attorney General [1965] 1 Ch 745 at 759-770; Garthwaite v Garthwaite [1964] P 356 at 387.
15 See also Saunders, C A, “The concept of non-justiciability in Australian constitutional law” in DJ Galligan (ed), Essays in Legal Theory (1984) at 29Google Scholar.
16 (1955) 92 CLR 145 at 162.
17 (1811) 14 East 1 at 150.
18 (1895) 6 QLJ 234.
19 Ibid at 237.
20 R v Richards; Ex parle Fitzpatrick and Browne (1955) 92 CLR 145 at 162.
21 Kirby J questioned whether the Parliament's power of commihnent conflicts with the allocation of judicial power to the courts under the Commonwealth Constitution: Egan (1998) 195 C:LR 424 at 494.
22 The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 at 138;cf Armstrong v Budd and Stevenson[1969] 1 NSWR 649. This fact/law distinction is arguably reflected in the Parliamentary Privileges Act 1987 (Cth) which requires any warrant for commitment to specify the reasons for the commitment. This ensures that any commitment can be reviewed by a court. If such review could not include questioning whether there is evidence capable of supporting a finding (a question of law under the fact/law distinction but not something apparent from the warrant alone), the intent of the Act could be circumvented by the House certifying any acknowledged breach of privilege.
23 Egan (1998) 195 CLR 424 at 466 per McHugh J.
24 Compare Harnett v Crick [1908] AC: 470 at 475-476.
25 (1839) 9 Ad & E 1.
26 (1884) 12 QBD 271 at 278.
27 Ibid at 280-281.
28 Ibid at 277.
29 Ibid at 274.
30 Ibid at 282.
31 The precise scope of what is a purely internal issue, at least in Australia, is not certain. In Armstrong v Budd and Stevenson[1969] 1 NSWR 649, the Court considered whether the New South Wales Legislative Council had an inherent power to expel a member. Although this was arguably a purely internal matter, justiciability was not addressed in the judgment. It is not clear therefore, whether the court: considered that Bradlaugh did not apply to the New South Wales Legislative Council; failed to consider the issue; or considered the right to membership of the House was not a purely internal matter. If the latter, this could arguably be because the power to expel goes to the very make up of the House and not merely how it runs itself.
32 Commonwealth Electoral Act 1918 (Cth), s 376.
33 Constitution, s 47; E Campbell, “Case Note: Ellis v Atkinson”,(1997) 21 MULR 693 at 696-700; Holmes v Angwin (1906) 4 CLR 297; Sue v Hill (1998) 163 ALR 648; cf Ellis v Atkinson[1998] 3 VR 175.
34 Constitution, s 46; E Campbell, above n 12 at 103-104.
35 Sue u Hill (1998) 163 ALR 648 at 717-718 per McHugh J.
36 (1884) 12 QBD 271.
37 Browne v Cowley (1895) 6 QLJ 234 at 236.
38 Ibid at 256.
39 [1946] QSR 87.
40 Ibid at 95.
41 (1981) 48 SAIR 604 at 620.
42 (1935] 1 KB 602.
43 (1981) 48 SAIR 604 at 622.
44 (1839) 9 Ad & E 1.
45 Ellis v Atkinson[1998] 3 VR 175 at 180-181; Constitution Act Amendment Act 1958 (Vic), s 300; see also Stott v Parker [1939] SASR 98.
46 (1998) 195 CLR 424 at 479-480 per McHughJ.
47 For example, Sue v Hill (1998) 163 ALR 648 at 727-728 per Kirby J; Egan <1 Chadwick & Ors [1999] NSWCA 176 at [90]; Browne v Cowley (1895) 6 QLJ 234 at 236; Bradlaugh (1884) 12 QBD 271 at 282; Burdett u Abbot (1811) 14 East I; 3 ER 1289.
48 C Saunders, above n 15 at 29-30.
49 Ibid at 38 and 45.
50 Cf Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR lat 5.
51 R v Murphy (1986) 5 NSWLR 18.
52 Egan (1998) 195 CLR 424 at 490-491 per Kirby J; HA Bachrach Pty Ltd v Queensland (1998) 156 ALR 563 at 566.
53 Parliamentary Privileges Act 1987 (Cth), s 16(5); cf Amann Aviation Pty Ltd u Commonwealth (l988) 19 FCR 223.
54 Comalco (1983) 50 ACTR 1 at 5.
55 Stockdale u Hansard (1839) 9 Ad & E 1; Cormack u Cope (1906) 4 CLR 297 at 452-453; Victoria v Commonwealth and Connor (1975) 134 CLR 81.
56 Prebble v Television New Zealand Ltd[1995] 1 AC 321.
57 (1998) 195 CLR 424 at 445-446 per Gaudron, Gummow and Hayne JJ.
58 (1912) 13 CLR 592.
59 (l998) 195 CLR 424 al 446 per Gaudron, Gummow and Hayne JJ.
60 The case of Willis and Christie D Perry (1912) 13 CLR 592 questioned the House's authority to arrest a member outside the Chamber and did not merely pertain to internal proceedings.
61 The only examples of a court reviewing a House's decision to discipline, rather than the power to apply the disciplinaiy measure taken, other than Egan,which the author could find were Landers v Voodworth (1878) 2 SCR 158 which, as discussed below, predated and was arguably overruled by Bradlaugh, and the more recent case of Sabaroche D Speaker of the House of Assembly[1999] 3 Law Reports of the Commonwealth 584 (Court of Appeal in Dominica). In Egan u Chadwick & Ors[1999] NSWCA 176, the case following Egan v Willis, after giving a foll legal analysis of the Council's contested powers leading to the plaintiff's suspension, the majority ruled that the court should “practice a prudential restraint” (at (93]) in matters regarding the Parliament and executive and, out of mutual respect between the Court and Parliament, “should not decide issues of this character unless il is compelled to do so in order to vindicate a legal right” (at [90]).
62 (1998) 195 CLR 424 at 509 per Callinan J citing Gleeson CJ (1996) 40 NSWLR 650 at 653.
63 Comalco (1983) 50 ACTR 1; R v Murphy (1986) 5 NSWLR 18.
64 In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 264-267; C Saunders, above n 15 at 23; cf Rowley v O'Chce transcript of oral argument in the High Court, B 66/1997 (20 November 1998).
65 (1998) 195 CLR 424 at 462-463 per McHugh J.
66 Ibid at 490-491 per Kirby J.
67 Ibid.
68 Ibid.
69 (l839) 9 Ad & E I.
70 (1998) 195 CLR 424 at 490-491 per Kirby J.
71 Egan v Willis, transcript of oral argument in the High Court, S75/1997 (17 June 1998).
72 Egan (1998) 195 CLR 424 at 462 per McHugh J.
73 Ibid at 490-491 per Kirby J.
74 Ibid.
75 Summers, R, “Justiciability” (1963) 26 MLR 530 at 582CrossRefGoogle Scholar; see also G Lindell, above n 13 at 190; Marshall, G, “Justiciability” in A Guest (ed), Oxford Essays in Turisprudmce (1961) ch 10Google Scholar.
76 Dingle v Associated Newspapers Ltd [1960] 2 QB 405.
77 [1935] 1 KB 602.
78 This case has been strongly criticised for the scope it gave to internal affairs of the House: G F Lock, “Parliamenta1y Privilege and the Courts: the Avoidance of Conflict”, (1985) PL 64 at 68-71; E Campbell, above n 12 at 77-78.
79 McGee, D, Parliamentary Practice in New Zealand (2nd ed) 1994 at 480Google Scholar.
80 Mungawaro Enterprises Ltd v Attorney-General [1994] 2 NZLR 451 at 454-456; D McGee, ibid at 480.
81 Sabaroche v Speaker of the House of Assembly[1999] 3 Law Reports of the Commonwealth584 (Court of Appeal in Dominica) at 596: “The House of Assembly gets its authority from the Constitution; the court being the sentinel of the Constitution must act and has a duty to act when any authority acts in non conformity with any rules or laws which it derives under the very Constitution.”
82 Syvret v Bailhache[1999] 1 Law Reports of the Commonwealth 645 (Royal Court of the Isle of Jersey) at 659 at 670: “The main reasons (relevant to this case) for judicial abstention from reviewing the internal proceedings of the legislature, firmly rooted as they are, in constitutional principle and legal history, appear to me to be these: (1) The legislature is the key organ of democratic government. It ought, accordingly, to enjoy absolute independence from outside interference or control, the better to perform its functions and to enjoy continued respect. (2) In particular, appeals to the courts as to whether particular behaviour of a member did or did not merit particular sanction would impair the proper functioning of the chamber by enmeshing it in legal proceedings. (3) The judicial and legislative organs of government both ought to and ought to be seen to enjoy independence of each other if they are to command confidence. (4) Judicial abstention from the interference in parliamentary proceedings is the best guarantee of parliamentary abstention from interference in the judicial process. (5) A legislature can provide its own remedies for injustice effected against a member by its officer of itself. (6) Ultimately an aggrieved member has the right to appeal to the electorate.”
83 Maingot, J, Parliamentary Privilege in Canada (2nd ed 1997) at 296Google Scholar.
84 (1878) 2 SCR 158.
85 (1842) IV Moore 63; 13 ER 225.
86 (1866) IV Moore NS 203; 16 ER 293.
87 (1878) 2 SCR 158 at 201.
88 J Maingot, above n 83 at 206-207.
89 Bourinot, J G, Parliamentary Procedure and Practice, (4th ed, TB Flint, 1916) at 41Google Scholar.
90 (1878) 2 SCR 158.
91 Blackstone, , The Commentaries on the Laws of England (17th ed 1830), vol 1 at 163Google Scholar, cited in Prebble[1995] l AC 321 at 332.
92 (1878), 2 SCR 158.
93 Reported sub nom New Brunswick Broadcasting Co v Nova, Scotia (Speaker of the House of Assembly [1993] 1 SCR 319 cited here as Donahoe.
94 Ibid at 372.
95 (1998) 195 CLR 424 at 446.
96 Donahoe [1993] I SCR 319 at 384.
97 Ibid at 385.
98 Ibid at 386.
99 Ibid at 387.
100 Ibid at 387-388.
101 [1993] l SCR 319.
102 lt is interesting lo note that the Chief Justice considered that, while the Charter did not apply to the House's exercise of its inherent privileges, if it did, “it could well be that the House would itself constitute the 'court of competent jurisdiction' for the purposes of hearing such a claim and granting a remedy under s. 24(1) of the Charter.” This line of analysis was not pursued: Donahoe [1993] l SCR 319 at 366.
103 Baker v Carr 369 US 186 at 211 (1962); Cooper v Aaron 358 US 1 (1958); Marbury v Madison 5 US (1 Cranch) 137 (1803).
104 The form of this supremacy is not wholly clear. If there is a political question docb'ine, then the courts in some matters defer to the political departments, although it is the courts which determine the existence and scope of any political question doctrine. It is also not beyond the capacity of the political departments to ignore the view of the courts. As the courts are unable to enforce their own rulings, whether a ruling not supported by the executive is law raises questions there is not room to examine here.
105 US v Johnson 383 US 169 at 181 (1966) quoted in Powell u McCormack 395 US 486 at 502 (1969).
106 Kilbourn v Thompson '103 US 168 at 204 (1881) quoted in Powell 395 US 486 al 502 (J96Q).
107 Powell 395 US 486 at 505 (1969).
108 Baker 369 US 186 at 198 (1962).
109 Ibid at 198.
110 Ibid at 210.
111 G Lindell, ahove n 13 at 193.
112 Baker369 US 186 at 217 (1962).
113 Goldwater v Carter 444 US 996 at 998 (1979).
114 Henkin, L, “Is There a Political Question Doctrine?” (1976) 85 Yale LJ 597CrossRefGoogle Scholar.
115 Redish, M H, “Judicial Review and the 'Political Question'” (1984-1985) 79 Northwestern ULR. 1031Google Scholar.
116 395 US 486 (1969).
117 Although this was an analogous fact situation to Bradlaugh (1884) :12 QBD 271, the different constitutional context obviates useful comparison.
118 M H Redish, above n 115 at 1033-1035.
119 For example, Melntyre v O'Neill 603 F Supp 1053 (1985); Metzenbaurn v Federal Energy Regulatory Commission 675 F 2d 1282 (1982); Vandcr Tagt v O'Neill 699 F 2d 1166 (1983); cf G Lindell, above n 13 at 197-198.
120 Baker 369 US 186 at 217 (1962).
121 Egan (1998) 195 CLR 424 at 490-491 per Kirby J.
122 Thorpe v Commonwealth of Australia [No 3] (High Court of Australia, Kirby J, 12 June 1997, unreported); Gerhardy v Brown (1985) 159 CLR 70 at 138-139 per Brennan J; Attorney General (Cth) Ex Rel McKinlay u Commonwealth (1975) 135 CLR 1 at 51 per Murphy J; Victoria v The.' Commonwealth and Connor (1975) 134 CLR 81 at 136 per McTiernan J.
123 G Lindell, above n 13 at 198.
124 Ibid at 193.
125 5 US (l Cranch) 137 (1803); Australian Communist Party D. Commonwealth (1951) 83 CLR 1 at 262; The Queen v Kirby; Ex partc Boilermaker's Society of Australia (1956) 94 CLR 254 at 267.
126 Attorney-General for the State of New South Wales v Trethowan (1931) 44 CLR 394; cf Clayton v Heffron (1960) 105 CLR 214.
127 Upheld by the Privy Council, Attorney-General for the State of New South v Vales v Trethowan (1932) AC 526.
128 Victoria v Commonwealth and Connor (1975) 134 CLR 81.
129 (1975) 134 CLR 201.
130 In Trethowan (1931) 44 CLR 394, the court proceeded on the basis of a concession by the defendants that an injunction may be granted at the suit of the plaintiffs (Clayton v Heffron (1960) 105 CLR 279 at 234). It may be argued that this concession is what allowed the jurisdiction of the court.
131 (1839) 9 Ad & E 1.
132 Osborne v The Commonwealth (1911) 12 CLR 321 at 355; see also at 336 and 352.
133 Trethowan v Peden (1930) 31 SRNSW 183;Attorney-General for the State of New South Wales v Trethowan (1931) 44 CLR 394.
134 McDonald v Cain[1953] VLR 411.
135 Hughes and Vale Pty Ltd v Gair (1954) 90 CLR 203; Cormack v Cope (1906) 4 CLR 297 at 453- 454; Clayton v Heffron (1960) 105 CLR; C Saunders, above n 15 at 43-45; cf Eastgatc v Rozzoli (1990) 20 NSWLR 188.
136 Schapiro, R A, “The Legislative Injunction: A Remedy for Unconstitutional Legislative Inaction” (1989) 99 Yale LJ 231CrossRefGoogle Scholar; Missouri v Jenkins 495 US 33 (1990); Spallone v United States 493 us 265 (1990).
137 For example, Commonwealth Constitution, ss 24 and 33; Parliamentary Electorates and Elections Act 1912 (NSW), s 70.
138 Sue v Hill (1998) 163 ALR 648 at 727-728 per Kirby J.
139 Sexton, M, “The Role of Judicial Review in Federal Election Law”, (1978) 53 ALJ 28 at 32-33Google Scholar.
140 Sue v Hill (1998) 163 ALR 648 at 727-728 per Kirby J; Egan o Chadwick [1 Ors[1999] NSWCA 176 at [90-93]; Browne v Cowley (1895) 6 QLJ 234 at 236; Bradlaugh (1884) 12 QBD 271 at 282; cf Clayton v Heffron (1960) 105 CLR 214.
141 Cormack v Cope (1906) 4 CLR 297; Hughes and Vale Pty Ltd v Gair; cf Clayton v Heffron (1960) 105 CLR 214; Eastgate v Rozzoli ('1990) 20 NSWLR 188.
142 Compare G F Lock, above n 78; Erskine May, above n 11 at 154-172.
143 Landers (1878) 2 SCR 158 at 213.
144 Ibid.
145 G F Lock, above n 78 at 74.
146 Erskine May, above n 11 at 153.
147 E Campbell, above v 33; Sui.' v Hill (1998) 163 ALR 648.
148 Cf G Lindell, above n 13 at 183-184 and 223-229.
149 Holmes v Angwin (1906) 4 CLR 297 at 307-308; E Campbell, above n 33.
150 Landers (1878) 2 SC:R 158 predated Bradlaugh (1884) 12 QBD 271. As mentioned above n 31, arguments limiting the scope of that autonomy may be found in Armstrong v Budd and Stevmson [1969] 1 NSWR 649.
151 Erskine May, above n 11 at 88-93; Donahoe [1993] 1 SCR 319 at 384-386; D McGee, above n 79 at 479-481.
152 G Lindell, above n 13 at 229.
153 (1955) 92 CLR 157 at 162.
154 Egan (1998) 195 CLR 424 at 490-491 133 per Kirby J; Cormack v Cope (1906) 4 CLR 297 at 452- 453; Victoria v Commonwealth and Connor (1975) 134 CLR 81. This contrasts with New Zealand, where it was held that the Bill of Rights 1688, together with Bradlaugh (1884) 12 QBD 271, prevented the examining the validity of a proceeding: Mungawaro [1994] 2 NZLR 451 at 456.
155 Council of Civil Service Unions v Minister for the Civil Service (GCHQ)[1985] AC 374 at 410.
156 As was demonstrated recently in the Senate inquiry into voluntary student unionism where a member raised apparently irrelevant allegations against a witness, without providing opportunity for redress: see Alan Ramsay “Objectionable Behaviour”, Sydney Morning Herald, 15 May 1999 at 45.
157 Section 31B (1).
158 NSW LA PD, 2 May 1995 at 5. See also, video recording of proceedings held by New South Wales Parliamenta1y Library.
159 Another incident which had potential for interference for “legal” reasons was when the House deemed a member to have resigned, by whal lhe Crown Solicitor advised to be an invalid resignation under s 33 of the Constitution Act 1902 (NSW), for purporting to resign at later date than when it was received by the Speaker, and then caused a writ to be issued for a by-election (NSW LA PD, 29 October 1998 at 9373-9375 and 9398.)
160 Mulhern, J P, “In Defense of the Political Question Doctrine”, (1988) 137 U Penn LR 97 at 170Google Scholar.
161 Sue v Hill (1998) 163 ALR 648 at 719 per Kirby J.
162 Ibid at 727-728 per Kirby J (footnotes omitted).
163 Egan v Willis (1998) 195 CLR 424 at 493-494.
164 G Lindell, above n 13 at 190.
165 Ibid at 190-191.