Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 15/1999 by Gareth Griffith
Page Content
- The decision in Egan v Chadwick was handed down by the
NSW Court of Appeal on 10 June 1999. As identified by Chief Justice Spigelman,
the primary issue was the question whether or not the power of the Legislative
Council to call for documents extends to documents for which claims of legal
professional privilege or of public interest immunity, could be made at common
law'. In the event, all three members of the Court of Appeal agreed that the
Council's power to call for documents did extend to privileged documents, on
the basis that such a power may be reasonably necessary for the exercise of its
legislative function and its role in scrutinising the Executive.
- However, there were different views on the question of the
extent of the power to order documents. In particular, Priestley JA found no
limitation on that power. Whereas the majority of Spigelman CJ and Meagher JA
found that the power does not extend to ordering the production of Cabinet
documents. Meagher J's formulation of the restriction was broader in this
regard, with his Honour granting immunity to Cabinet documents generally. For
Spigelman CJ, on the other hand, the immunity applied to documents which,
directly or indirectly, reveal the deliberations of Cabinet'; as for documents
prepared outside Cabinet for submission to Cabinet, depending on their
content', these may, or may not' also lie beyond the Council's power.
- The practical question for the future is how broadly or
narrowly the courts will interpret the restriction on Cabinet documents. The
other side to this practical question concerns the steps governments may take
to claim immunity for sensitive documents, be they defined as a class or
otherwise. It is suggested that, if Sankey v Whitlam (1978) 142 CLR 1 is
a guide, a case by case approach is likely to be adopted, at least to those
documents which are not clearly identified as disclosing the actual
deliberations of Cabinet.'
- Central to all three judgments was the principle of responsible
government. But, again, it was construed differently, with the Chief Justice
arguing that certain indicia of that principle, notably ministerial
responsibility, prevents the disclosure of documents revealing the
deliberations of Cabinet. Meagher JA appeared to concur with that view, while
Priestley JA arrived at a different understandings of the implications arising
from the related principles of representative government and responsible
government.
