Judicial Intervention in Parliamentary Proceedings: The Implications of Egan V Willis
| Author | Russell Keith |
| DOI | 10.22145/flr.28.3.7 |
| Published date | 01 September 2000 |
| Date | 01 September 2000 |
| Subject Matter | Article |
JUDICIAL
INTERVENTION
IN
PARLIAMENTARY
PROCEEDINGS:
THE
IMPLICATIONS
OF
EGAN
V
WILLIS
Russell
Keith*
INTRODUCTION
In
Egan
v
Willis,
1
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
I-louse.
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.
This
article
examines
the limits
previously
placed
on
the
justiciability
of
legislative
proceedings
in
Australia
and
overseas
and
the
implications
of
the
Egan
decision
in
this
area.
In
doing
so
it
supports
the
dissenting
judgment
of
McHugh
J
and
argues
for
the continuance
in
Australia
of
the principle
established
in
Bradlaugh
z Gossett2
that
a
court
has no
jurisdiction
to
review
purely
internal
proceedings
of
Parliament.
EGAN
V
WILLIS-
THE FACTS
On
1
May
1996,
the
New
South
Wales
Legislative
Council
censured
the
Honourable
Michael Egan
MLC,
the
Leader
of
the
Government
in
the
Legislative
Council,
Treasurer,
Minister
for
Energy,
Minister
of
State
Development and
Minister
Assisting
the
Premier
"as
the representative
of
the
Government
in
this
House
for
the
Government's
failure
to
comply"
with an
earlier
resolution
requiring
the tabling
in
the
House
of
"papers
relating
to
the
Government's
consideration
of
the
report
of
the
BA
(Hon)
ANU,
BLegS
(Ron)
Macq,
Manager, Procedure
Office
&
Deputy
Usher
of
the
Black
Rod,
NSW
Legislative
Council.
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
o
Willis
(1998)
195
CLR
424;
Egan
v
Willis
&
Cahill
(1996)
40
NSWLR
650.
2
(1884)
12
QBD
271.
Federal Law
Review
commission
of
Inquiry
into
the
Lake
Cowal
goldmine
and
associated
facilities
...
and
the
determination
of
the consent
to
the
project.
That
resolution
also
called
upon
Egan
to
table
the
papers
by
the
following
day.
He
failed to
do
so.
As
a
result,
on
2
May
1996,
the
Council, after
debate,
adjudged
the
appellant
"guilty
of a
contempt
of
this
House".
4
It
also
resolved:
That this
House,
regarding
it
as
necessary
to
obtain information
on
any
matter
affecting
the
public
interest
and in
order
to
protect the rightful powers
and privileges
of
the
House,
and
to
remove any
obstruction
to
the
proper
performance
of
the
important
functions
it
is
intended
to execute:
(a)
hereby
suspends
the
Treasurer
from
the
service
of
the House
for
the remainder
of
today's
sitting;
(b)
orders the Treasurer
to
attend
in
his
place
at
the
Table
of
this
House
on
the
next
sitting
day
to
explain:
(i)
his
reasons
for
continued
non-compliance
with:
[certain
Orders
of
the House]
(ii)
the Government's
failure
to
comply
with
the
Order
of the
House
dated
26
October
1995
to
table certain
documents
concerning
the
recentralisation
of
the
Department
of
Education...5
The
Usher
of
the
Black
Rod,
Warren
Cahill,
at
the
direction
of
the
President,
the
Hon
Max
Willis
MLC,
then
escorted
Egan
out
of
the
Chamber
and
onto Macquarie
Street.
Egan
then
brought
an
action
in
the
Administrative
Law
Division
of
the
Supreme
Court
of
New
South
Wales
seeking
declarations
that:
(1)
paragraphs
2
and
3
of
the
resolution
of
2
May
1996
were invalid;
and
(2)
his
removal
into the
street
constituted
a
trespass
(the
footpath
point).
6
The
proceedings
were
removed
to
the
Court
of
Appeal
which
held
that
the
power
to
order
the
production
of
state
papers
was
reasonably necessary
for
the legislature,
that
the
resolution
suspending
Egan
was
self
protective
rather than
punitive,
and
that
consequently
the
claim
that the
Council's
resolution was
invalid
must
fail.
7
This
was
upheld
by
the
majority
of
the
High
Court.
In
relation
to
the
footpath
point,
the
Court
of
Appeal
held
that,
as
the
standing
orders
only
provided
for
a
member
to
be
"excluded
from the House
and
from
all
the
rooms
set
apart
for
the
use
of
the
Members",
8
the
removal
of
Egan
onto
the
footpath
was beyond
the
scope
of
what
was justified
by
the
order and
was
therefore
actionable.
The
point
was
not
pursued
in
the
High Court
All
nine
judges
to
have
considered
the
case
agreed
that
the
Legislative
Council's
suspension
of
Egan
was
legal.
However,
McHugh
J
differed
from the
other
judges
in
that
he
would
have
overruled
the
declaration
of
the
Court
of
Appeal
because,
"[iun
the
3
NSW
LC
PD,
1
May
-1996
at
577
4
NSW LC,
Minutes
of
the
Proceedings
qf
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
l.egislative 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.
Volume
28
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