LAWS1205 Study Guide - Final Guide: Sydney Water, Public-Interest Immunity, Natural Justice
Week 6
Thursday, 6 April 2017
21:05
Judicial intervention and parliamentary proceedings
Egan v Willis (1998) CLR
Michael Egan, The treasurer in the Carr Labour Government , was the leader of the
government in the LC, the upper house of the NSW Parliament
In state parl, the upper house have asserted a more active role in the scrutiny of
government
The government lacked a majority of seats in that houose
Egan was asked to table certain papers or deliver them to the Clerk
He failed, the cabinet had earlier agreed that the ministers should decline to comply
with such orders
LC then passed a resolution adjudging Egan to be guilty of contempt, suspending him
from the House for the remainder of the day
When Egan refused to leave the house that day, he was forced out to the footpath
outside
Argued resolution invalid and removal to the street was actionable as trespass
Rules of parl did not permit Egan to be removed to the footpath, only from the
Chamber of the LC and all rooms set aside for the use of members
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
The documents were not subject to privileges and therefore the LC has the power to
with his refusal to produce them
May the LC suspend its own members for failing to produce State papers required
by the House?
The primary role of the government is to pass laws, but also to question and criticize
government on behalf of the people and to secure accountability of government activity
is the very essence of responsible government
Lange v Australian Broadcasting Corp: reference was made to those provisions of
the Cth Constitution which prescribe the system of responsible government necessarily
implying a 'limitation on legislative and executive power to deny the electors and their
representative information concerning the conduct of the executive branch of
government throughout life of a federal parl
The conduct of the executive branch is not confined to Ministers and the public
service, it includes the affairs of statutory authorities and public utilities which are
obliged to report to the legislature or to a Minister who is responsible for the legislature
Ministers are accountable to the Parl and to give an account to Parl of what is done by
them in their capacity as Ministers or by their departments
Commonwealth v Northern Land Council (1993)CLR: affirmed the confidentiality
of Cabinet deliberations reflects the principle of collective responsibility, which remains
an important element in our system of government
The doctrine of responsible necessity: authorising suspension until submission or
apology by the offending member
Whether the production of documents was reasonably necessary for the
performance by the LC of its constitutional function
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Parliamentary Privileges
Bill of rights 1688 (England): Art 9 the freedom of speech, and debates or
proceedings in Parl, ought not to be impeached or questioned in any court or Place out
of Parl
The bill of rights remain legally relevant, for e.g. it was cited in the affirmation of
parliamentary privilege in Egan v Willis
In taxation cases, its insistence on parliamentary consent to taxation has been invoked
as excluding tax liabilities based on executive discretion rather statutory criteria
(Commissioner of Stampers SA v Telegraph Investment CO pty ltd), while also
underpinning the importance of parliamentary control of taxation
Section 49 of the constitution gives the federal parl the power to declare its own
'powers, privileges, and immunities', but until such are declared, they shall be those that
were held by the House of Commons in the UK as the establishment of the
Commonwealth. Thus when an issue of contempt of Parliament arose in 1955, it was
assumed that the relevant rules and procedures were those of the House of Commons
S49 gives the House the power of custody and imprison any person adjudged by the
house to be guilty of contempt of the house
R v Richards; Ex parte Fitzpatrick & Browne (1955) CLR
In an unequivocal terms the power of the House of Commons have been bestowed
upon the House of representatives and thus that s49 is incapable of restricted meaning
Habeas corpus: a recourse in law whereby a person can report an unlawful detention
or imprisonment before a court, usually through a prison official
Applying for habeas corpus: 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
Because the warrant for arrest was not of particular allegation, but was in general
term, it was conclusive , could not adjudicate
Limited the right of privilege of the Australian Parliament
Breach of privilege had occurred
Browne and Fitzpatrick be committed to 90 days gaol
This was the first time anyone had ever been called to the Bar of the lower house, first
time the Parl has ever jailed anyone
PARLIAMENTARY PRIVILEGES ACT 1987 - SECT 16
Parliamentary privilege in court proceedings
(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions
of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the
Commonwealth and, as so applying, are to be taken to have, in addition to any other
operation, the effect of the subsequent provisions of this section.
(2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as
applying in relation to the Parliament, and for the purposes of this section, proceedings in
Parliament means all words spoken and acts done in the course of, or for purposes of or
incidental to, the transacting of the business of a House or of a committee, and, without
limiting the generality of the foregoing, includes:
(a) the giving of evidence before a House or a committee, and evidence so
given;
(b) the presentation or submission of a document to a House or a committee;
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Document Summary
Michael egan, the treasurer in the carr labour government , was the leader of the government in the lc, the upper house of the nsw parliament. In state parl, the upper house have asserted a more active role in the scrutiny of government. The government lacked a majority of seats in that houose. Egan was asked to table certain papers or deliver them to the clerk. He failed, the cabinet had earlier agreed that the ministers should decline to comply with such orders. Lc then passed a resolution adjudging egan to be guilty of contempt, suspending him from the house for the remainder of the day. When egan refused to leave the house that day, he was forced out to the footpath outside. Argued resolution invalid and removal to the street was actionable as trespass. Rules of parl did not permit egan to be removed to the footpath, only from the.
