Or by the provision of the Australia Acts as they affect the status and powers of the Parliaments of the Australian States, including that of New South Wales? The constitutional point.
Depending on the answer to the first two points, did the Council have the implied or inherent power to act as it did in relation to the appellant within the chamber and in the precincts of the Council in a ordering him to table documents in his possession or control and b suspending him from the service of the House and removing him from its precincts so as to coerce him into tabling such documents?
It is obvious that the answer to b depends upon the answer to a. The scope of the privilege point. However, because of the common understanding of the parties, the Court considered that it was unnecessary to debate the point . He submitted that the Court of Appeal had erred in proceeding to inquire whether the suspension and removal of the appellant was lawful. He based this submission, in part, on the prohibitions contained in Art 9 of the Bill of Rights and, in part, upon the common law governing the inherent or implied privileges of a House of Parliament such as the Council.
In essence, South Australia contended that inquiries addressed to the "reasonableness" of the necessity to have the powers asserted or as to whether particular conduct amounted to a permissible coercion, as distinct from impermissible punishment, were exclusively matters for the relevant House of Parliament to decide. They were political. They were not matters into which a court would, or should, intrude. The only exception allowed related to the "footpath point" which, by definition, fell outside the suggested prohibition on curial intervention into the internal business of a House of Parliament.
The intervener is a State of the Commonwealth. By federal law, it is taken to be a party to the appeal .
It contends that the Court of Appeal did not have jurisdiction to deal with questions referred to it, save for the "footpath point". As the issue of justiciability lies at the threshold of this Court's response to the appeal, it is necessary to resolve it. South Australia submitted that the Court of Appeal had no jurisdiction to answer specified questions.
These were the questions formulated in the order removing the proceedings from the Administrative Division of the Supreme Court into the Court of Appeal. But when the matter came before the Court of Appeal, it elected to deal with it by way of disposing of the proceedings in their entirety. It did not provide answers to the specified questions, as such. In adopting this course, the Court followed its usual practice . It was not suggested that a separate issue of justiciability arose because the issues posed were theoretical.
On the contrary, they were entirely practical. They addressed the legal rights of the principal parties. Where a party has regularly invoked the jurisdiction of a competent court, that party has "a prima facie right to insist upon its exercise and to have [the] claim heard and determined" .
Will a court, even to resolve the legal rights of parties to proceedings before it, intrude itself within the walls of a Parliamentary chamber? Or will it refuse to do so out of deference to the requirements of the Bill of Rights as applied in New South Wales or out of a conception of the exclusive rights of the Houses of Parliament in the performance of their legislative functions and the protection of their own privileges ?
Thus Article 9 reads:. When the Bill of Rights was enacted by the Parliament at Westminster, the only "Parlyment" referred to was the enacting one.
However, the Bill of Rights is part of the constitutional heritage of Australia. It came with those who established the colonies. It applied in the colonies by the medium of imperial law  , except so far as later altered or repealed by valid local statute . Against the background of its constitutional importance, and the trouble taken by the New South Wales Parliament as recently as to preserve its operation in that State, it is plain that the language of Art 9 must be taken to refer, with such modifications as are necessary, to the Parliament of the State and hence to each of the chambers which constitute it in which "speech and debates or proceedings" take place, including the Council.
Similar conclusions have been reached in respect of the application of the Bill of Rights to the Parliaments of other former colonies . Any suggestion that Art 9 is inapplicable to the Council of the Parliament of New South Wales must therefore be rejected.
It submitted that this view had its ultimate foundation in respect for the "absolute and exclusive" right of every Parliament, as such, to impose discipline "within their walls" . In that sense, Art 9 was to be seen as "merely one manifestation" of a "wider principle" of deference by the courts to the exercise by Parliamentary chambers of their privileges in relation to members.
That deference was reinforced by a determination on the part of courts not to become embroiled in the political controversies which such questions typically involve . Whereas other jurisdictions of Australia have generally defined their privileges by statute  , in New South Wales no relevant statute, justiciable in a court, has been enacted. The only applicable statutory provision was therefore Art 9.
It imports, so South Australia submitted, basic English constitutional notions so that acts which constitute "proceedings in Parliament" are not justiciable in the courts. The acts preceding and immediately following the suspension of the appellant were said to fall within that prohibited class.
On the one hand, he contested the applicability of the approach adopted by this Court in relation to a chamber of the Federal Parliament expressed in R v Richards; Ex parte Fitzpatrick and Browne  which he ascribed to the assimilation of English practices by force of the language of s49 of the Australian Constitution.
This had not happened in the case of the New South Wales Parliament. It had no inherent powers. It enjoyed no more privileges than those expressly conferred or necessarily implied. He pointed to suggested inconsistencies in the reasoning of the judges in that case about justiciability. Yet, in this case, it was the appellant who invoked the jurisdiction of the Supreme Court. In order to demonstrate the unlawfulness of the Council's resolutions, orders and actions, it was essential for him, in the light of the pleading of the respondents, to invite the Court to enter beyond the walls of Parliament so that it could determine the legal admissibility of his claim.
My reasons are as follows: 1.
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As the Privy Council pointed out in Prebble v Television New Zealand Ltd  , it is important to avoid confusion between the right to prove the occurrence of parliamentary events and the prohibition on questioning their propriety, as for example, suggesting that a member had misled the House or acted wrongly or from improper motives . It is to defend, relevantly against legal inquiry or sanction in a court, the freedoms belonging to a House of Parliament. Those freedoms include its right to conduct its affairs, answerable, on matters of truth, motive, intention or good faith, only to the House concerned and through it to the electors.
These considerations are not raised in any way by the competing submissions of the parties to these proceedings. Whilst each doubtless has political criticisms to make of the other as illustrated by the Hansard Debates such were not in any way the questions for the courts. Their only concern has been with the legality of what had occurred. Upon that question each side in the contest sought the Supreme Court's ruling.
That ruling could be given by the use of legal techniques without entering upon the political arguments or debates. Naturally, the resolution of the legal controversy might have political implications. But that is so in most, if not all, constitutional matters . To designate all matters having political or partisan implications as non-justiciable would be to withdraw judicial supervision and the rule of law from an intolerably broad class of conduct.
It would lead to a conclusion that a mere claim of privilege by a House of Parliament expelled the courts from holding whether the privilege, in law, exists. And that is not the law.
Even if it be the case that individual members of a Parliamentary chamber may not waive a privilege belonging collectively to a House of Parliament  , the present case is virtually unique in the stance adopted by the antagonists. On the one side of the record is the Executive Government, inferentially supported by those members of the Council of its political persuasion who contest the right of the Council to act as it did in relation to the appellant.
On the other side are parties who were officers of the Council directed by it to act as they did. Each side has come to the Court arguing its view of the law of parliamentary privilege. Far from impeaching or questioning the freedom of speech and debates or proceedings in Parliament, this is a case where the record shows that the members of the Council, although of different views, desired the ruling of the Supreme Court to define the limits of the Council's powers as distinct from adjudging the propriety of the exercise of those powers in the present matter .
Whilst consent or acquiescence cannot overcome the absence of a justiciable question apt for judicial determination, where the source of the suggested problem is said to lie principally in the requirements of Art 9 of the Bill of Rights, as applied, it is surely relevant that no member of the Council raised objection to the jurisdiction of the Supreme Court but all, apparently, sought that Court's ruling.
In a string of cases concerning colonial or post-colonial legislatures, courts which must have been aware of Art 9 of the Bill of Rights proceeded to judge claims of trespass and, for that purpose, to consider the lawfulness of the resolutions of the legislative chamber in question directing the plaintiff's arrest . In none of these cases was Art 9 perceived as an obstacle to the examination by the court of the relevant parliamentary proceedings. Even if in some cases  it might be doubted that Art 9 applied locally, that was certainly not the position in most of the cases .
I would not accept that so many decisions in this area of discourse were reached per incuriam, as must have been the case if the submission for South Australia were correct. It should be accepted that the courts proceeded on the assumption that Art 9 did not apply by its terms or had to be adapted to the context of a Parliament other than that at Westminster and in a way consistent with the discharge by the courts of their function to specify the limits of the privileges in question. Where no express statement of those privileges exists, apt for the case in hand, it is for the courts to define the outer boundary of any implied privilege claimed.
This they do by reference to concepts such as "essentiality"  or "reasonable necessity" . In fixing the boundaries, courts naturally extend a large measure of deference to the assertion by a House of Parliament itself of the existence and limits of the House's privileges. Privilege being established, courts would not become involved in decisions about the exercise of the privilege in a particular case. There is a further reason, in Australia, for dismissing the argument of non-justiciability. Courts in this country, at least in the scrutiny of the requirements of the Australian Constitution, have generally rejected the notion that they are forbidden by considerations of parliamentary privilege, or of the ancient common law of Parliament, from adjudging the validity of parliamentary conduct where this must be measured against the requirements of the Constitution .
Whilst it is true that Australian courts will ordinarily permit parliamentary procedures to be completed  before they intervene, the power of intervention by the courts cannot be seriously doubted. It is the nature of a federal polity that it constantly renders the organs of government, federal and State, accountable to a constitutional standard.
State Parliaments in Australia, whatever their historical provenance, are not colonial legislatures. They are provided for in the Australian Constitution . To this extent, at least, they are rendered accountable to the constitutional text. Notions of unreviewable parliamentary privilege and unaccountable determination of the boundaries of that privilege which may have been apt for the sovereign British Parliament must, in the Australian context, be adapted to the entitlement to constitutional review.
Federation cultivates the habit of mind which accompanies constitutional superintendence by the courts. Courts recognise a large measure of power in, say, the chamber of a State Parliament, to define and enforce its notions of its own privileges. But the Australian constitutional context does not accord to such a body a completely unreviewable entitlement, in law, to define and enforce its own powers. Any such powers can only be exercised in conformity with the political and judicial system which the Constitution creates.
Decisions of other countries and from other times therefore need to be adapted in the modern Australian context when it is suggested that they apply to the privileges of a House of Parliament of an Australian State .
I would acknowledge no lesser scrutiny by the Court of the lawfulness of a claim of privilege by a chamber of the New South Wales Parliament than that accepted in R v Richards: Ex parte Fitzpatrick and Browne  in relation to the Federal Parliament which arguably enjoys larger powers and broader immunities by virtue of the text of the Constitution .
This is the approach which has been taken in New South Wales in the past to the delineation of the respective functions of the Houses of Parliament and the courts . Nothing in Art 9 of the Bill of Rights or the common law of Parliament as applied in this country forbids that approach. Although the line drawn may not always be bright, it will be found by courts limiting their functions in this area to the elucidation of legal questions and the avoidance of purely political ones.