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. 01/1999 by Gareth Griffith
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- In its judgment of 19 November 1998 the High Court held by a 5
to 1 majority that the New South Wales Legislative Council has the implied
power to require one of its members, who is a Minister, to produce State papers
to the House, together with the power to counter obstruction where it occurs.
The relevant test is that an implied power must be reasonably necessary for the
exercise of the Council's functions: these include its primary legislative
function, as well as its role in scrutinising the Executive generally. In their
joint majority judgement, Justices Gaudron, Gummow and Hayne concluded that, in
determining what is reasonably necessary at any time for the proper exercise'
of the functions of the Council, reference is to be made to what, at the time
in question, have come to be conventional practices established and maintained
by the Legislative Council'.
- Only Justices McHugh (dissenting) and Justice Kirby dealt with
the issue of justiciability in detail. Justice McHugh found that it was not for
the courts to rule on the validity of the Legislative Council's resolution
suspending a member who had failed to comply with a previous resolution
ordering him to produce State papers to the House. Justice Kirby, on the other
hand, arrived at the novel conclusion that 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'.
- Significantly, the issue of public interest immunity was not
discussed in the case. Proceedings relevant to that issue are currently before
the New South Wales Court of Appeal.
