Arena v Nader and ANOR S111/1997 [1997] HCATrans 321 (15 October 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S111 of 1997

B e t w e e n -

FRANCA ARENA

Applicant

and

THE HON. JOHN ANTHONY NADER, RFD, QC

First Respondent

THE STATE OF NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

BRENNAN CJ

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 OCTOBER 1997, AT 11.00 AM

Copyright in the High Court of Australia

MR R.J. BURBIDGE, QC: May it please, your Honour, I appear with my learned friends, MR P.T. TAYLOR and MR S.J. GAGELER, for the applicant. (instructed by McCabes)

MR L.S. KATZ, QC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR M.J. LEEMING, for the second respondent. (instructed by the Crown Solicitor for New South Wales)

MR M.J. NEIL, QC: May it please the Court, I appear with my learned friend, MS A.BOWNE to seek leave to intervene on behalf of the Honourable Peter Collins. (instructed by Allen Allen & Hemsley)

BRENNAN CJ: Yes. Do you have anything to say to that, Mr Burbidge?

MR BURBIDGE: No,. thank you, your Honour.

BRENNAN CJ: Mr Solicitor?

MR KATZ: No, your Honour.

BRENNAN CJ: You have leave, Mr Neil.

MR NEIL: Thank you, your Honour.

BRENNAN CJ: I understand that Mr Walker and Mr Lancaster have submitted some written submissions seeking leave to intervene and to present those submissions on behalf of Mr Justice Wood. Do you have anything to say to that application, Mr Burbidge?

MR BURBIDGE: I do not, thank you, your Honour.

BRENNAN CJ: Mr Solicitor?

MR KATZ: No, your Honour.

BRENNAN CJ: In that event, there will be leave granted to intervene on behalf of Mr Justice Wood and the written submissions will be received. You have copies of those, Mr Burbidge?

MR BURBIDGE: Thank you, your Honour, I do.

BRENNAN CJ: You have, Mr Solicitor? Mr Neil? There is also a notice of motion with an affidavit filed by a Mr Cooke in person. Is Mr Cooke present? I understand Mr Cooke might be arriving in the near future and I will leave that application for leave to intervene or being joined as a party until Mr Cooke arrives.

Yes, Mr Solicitor.

MR KATZ: Your Honour, may I raise the matter of notices under section 78B of the Judiciary Act 1997 ?

BRENNAN CJ: Yes, Mr Katz.

MR KATZ: Yesterday, we undertook the task of sending out such notices. Would it be a convenient course if I were to hand to your Honours now copies of an affidavit of service of the notice under section 78B?

BRENNAN CJ: Yes, thank you.

MR KATZ: I have four copies.

BRENNAN CJ: What is the state of play with regard to it?

MR KATZ: It might be convenient if I asked your Honours to go to the document for the purposes of what it is I wish to say about the matter. Your Honours will see an affidavit by John McDonnell and the first document annexed to it is a notice of constitutional matter dated yesterday. Your Honours will see from paragraph 2 of that notice that it is said that:

The nature of the constitutional matter arising appears in the Application for Special Leave -

Your Honours find the application for special leave immediately behind the notice to which I have just been referring. If your Honours would go to the application for special leave your Honours will see that it raises two constitutional issues. Under the heading of "Grounds", paragraph 2, subparagraph (a) deals with the point about section 7A of the New South Wales Constitution Act. Ground 2(c) deals with the point about section 106 of the Commonwealth Constitution and any suggested restraint on retrospective alteration of the State Constitutions flowing from section 106.

GUMMOW J: It does not deal with Mr Burbidge's first set of submissions, does it?

MR KATZ: I am sorry, your Honour.

GUMMOW J: It does not deal with paragraph 16 and following of Mr Burbidge's outline.

MR KATZ: Well, it does not deal with 16 to 21, no, that is so, nor does it deal with 25 to 27, his implied free speech submissions. We did add to the notice under section 78B a third paragraph , if I could ask your Honours to go to that. We included a reference to this matter by reason of various concerns raised by your Honour the Chief Justice during the course of the hearing on Monday and we sought as best we could to encapsulate matters which your Honour referred to during the course of the hearing in paragraph 3 by asserting that:

The application for special leave may also raise an issue of whether the New South Wales Parliament has the power to enact a law that affects the privileges of the Parliament, in particular, whether there exists a power in the Parliament to vary the absolute quality of its privileges and to empower a House of the Parliament to authorise an inquiry into and a report upon the claims made by a member in his or her speech and whether there is evidence to support the claims made.

We sent that notice out early yesterday. We had not yet had the benefit of our learned friend's submissions, which we got last night about 5 o'clock, and it was at that stage that we discovered that there were matters sought to be raised in the submissions which appear to us not to be the subject of any notice under section 78B. In those circumstances, it appears to us, with respect, that there are two questions which arise: the first question is whether or not the applicant should be allowed to take constitutional points in any event, which were not raised in her application for special leave; and the second one is if they should be permitted to do so, can that be done today.

It may be that your Honours would be of the view that section 78B is not applicable to proceedings of the character of applications for special leave. If that be so, then there could be no impediment to the raising of these points subject, presumably, to some permitted amendment to the application for special leave.

GUMMOW J: That turns on the meaning of "cause", I suppose, and "pending", does it?

MR KATZ: It may do. Or it may be that the view is taken that the purpose of section 78B is to deal only with those occasions upon which the Court is to hear and determine a constitutional matter to finality, so that a proceeding of this character is not one which requires the giving of notices in any event. As I said to your Honours, we undertook the burden of sending out notices in any event, and we did so after consultation with the Registry, simply to seek to be the more sure that the matter would not go off. If your Honours are of the view that section 78B does not really apply, then that seems to solve all problems so far as the prohibition contained in the provision is concerned.

BRENNAN CJ: Perhaps subsection (5) provides some other matter which falls for consideration, Mr Solicitor.

MR KATZ: It would appear that the nature of an application for special leave is not such that it qualifies as an interlocutory matter, rather it is a proceeding sui generis in which the Court determines whether or not to exercise its appellate jurisdiction and - - -

BRENNAN CJ: It is certainly not a final matter.

GUMMOW J: You may have the wrong end of the pineapple, I think.

MR KATZ: As I understand the state of the authorities, it is final in the sense that it is an exercise of the original jurisdiction of this Court, determining whether or not a matter is apt for the exercise of the appellate jurisdiction of this Court. Your Honour, I myself do not find as much comfort for the notion that 78B is not applicable in subsection (5) as I do in the evidence - - -

GUMMOW J: No, no, the question is assume 78B is applicable to this sort of proceeding, can one then, to your relief I suppose, bring oneself within subsection (5), that is the question. You seem to have it the wrong way around.

MR KATZ: I am sorry. I do not believe still that I am understanding what your Honour is trying to convey to me. If I may seek to deal with what your Honour Justice Gummow was putting to me. As I understand subsection (5), it deals with proceedings which relate to the grant of relief of an interlocutory nature. My submission was that an application for special leave could not be described as an application for relief of an interlocutory nature. It was for that reason that - - -

GUMMOW J: Once granted, it can certainly be revoked.

MR KATZ: Yes, and that would mean then that one would have to know the outcome of the special leave application before one knew whether or not the order made at the end of the day was final or interlocutory because - - -

GUMMOW J: You grant relief or you refuse relief. If you grant the relief, the relief then granted is interlocutory in nature. That is the question. I am not suggesting a particular answer to it, but that seems to be the analysis.

MR KATZ: I understand what your Honour is saying. It may be, then, that that does provide a way out. There is one other matter I think I should say, and have not yet said, that although I am not in a position to supply to your Honour any documentation in the matter, we have received oral responses from all of the Attorneys declining to participate in the proceedings.

BRENNAN CJ: Why cannot we accept that, Mr Solicitor?

MR KATZ: Only the difficulty that the Attorneys appear not to have had full notice of the nature of the constitutional matters which are sought to be ventilated by the applicant. Unless there is something further that I can assist the Court with on that aspect of the matter.

BRENNAN CJ: Yes. Do you have anything to say, Mr Burbidge?

MR BURBIDGE: I do not think I can usefully assist, your Honour. I must confess I was not aware of the existence of the difficulty until my learned friend spoke to me immediately before the Court convened and I must say that I am not aware of that which has been sent out. I had understood that our earlier summons that was before the Court of Appeal, before which court each of these matters was in fact argued, had been sent out and that certainly did raise the question of what might be called the institutional integrity point. I am told, your Honours, that our summons was part of that material which was sent out with the initial 78B notice at the time that the matter was before the Chief Judge in Equity in New South Wales.

BRENNAN CJ: Yes. I think, in the circumstances which have been outlined from the Bar table, the Court is warranted in coming to the conclusion that section 78B has been sufficiently complied with. In those circumstances, we will proceed to hear the application.

MR KATZ: If the Court pleases.

BRENNAN CJ: Yes, Mr Burbidge. I should mention that I have a certificate from the Senior Registrar that the New South Wales Crown Solicitor has filed an appearance in this application on behalf of the first respondent, the Honourable John Anthony Nader RFD, QC who submits to any order the Court may make save as to costs.

MR BURBIDGE: If your Honours please. Your Honours, the special leave application before you arises in consequence of the passage through the New South Wales Parliament of the Special Commissions of Inquiry Amendment Act of 1997. That legislation was passed through both Houses of Parliament on 24 September 1997, which date was one week after a speech in the Legislative Council of New South Wales by the applicant who is a member of the Upper House. Could I ask your Honours to go - - -

BRENNAN CJ: You can take it that the Court is familiar both with the judgment of the Court of Appeal and with the judgment that I delivered on the application on Monday last.

MR BURBIDGE: Thank you, your Honour. Could I ask your Honours to go briefly to the legislation in question which is the Special Commissions of Inquiry Amendment Act, No 84. What I propose to do, your Honours, is to take your Honours briefly to that legislation because it is against that background that this matter falls to be determined. I do not propose, of course, to take your Honours through the legislation in detail but I do wish to draw attention to several of the more important provisions.

If your Honours would look first at section 33B of Part 4A of the Act your Honours would see that the legislation provides for a resolution by a House of Parliament authorising the Governor to issue a commission - - -

GUMMOW J: The resolution is further explained in 33F, is it not? It is a special sort of resolution.

MR BURBIDGE: Yes, it is, your Honour. There are special attributes which attach to it, but I think for our purposes the importance of the matter is that it, in effect, provides for a House of Parliament, by re

solution, to waive part of the law of the State, namely that relating to parliamentary privilege.

GUMMOW J: During the period of 33H, which is 6 months.

MR BURBIDGE: Yes, during that limited period, thank you, your Honour. Your Honours would see that 33B(4) provides that such a resolution:

authorises but does not require the issue of a commission, as contemplated by the resolution, under section 4 by the Governor on the recommendation of the Minister -

thus preserving the executive power to determine whether such a resolution will be acted upon.

Section 33C we may pass over. It provides similarly in respect to commissions already established. Section 33D(1) provides that:

A House of Parliament that passes a resolution.....may,.....declare that parliamentary privilege is waived in connection with the Special Commission to such extent as is specified in the declaration.

Subsection (2) provides that there shall be no contempt of Parliament involved in so doing. Subsection (3) again returns to the subject of parliamentary privilege, this time from the perspective of the member whose proceedings are to be the subject of the examination, in these terms:

However, a declaration by a House of Parliament under this section waiving parliamentary privilege:

(a) does not operate to waive parliamentary privilege to the extent that it can be asserted by a member of either House of Parliament in relation to anything said or done by the member in parliamentary proceedings within or before a House of Parliament or a parliamentary committee -

And subsection (3) provides further by paragraph (b), but such a declaration:

operates to authorise the member to give evidence.....if the member chooses to do so, unless the declaration provides otherwise.

Section 33E provides for certain powers to be given to that special commission, and I should perhaps do no more than draw to attention that subsection (2) of 33E provides:

The Commissioner is required to furnish a report.....to the relevant House (in addition to the Governor).

Section 33F, as your Honour Justice Gummow points out, provides that contrary to the ordinary arrangements relating to a majority - - -

GUMMOW J: That is 22 I, is it not?

MR BURBIDGE: Section 22 I of the Constitution Act 1983 of New South Wales, your Honour, yes.

GUMMOW J: Is that the one?

MR BURBIDGE: Yes, it is - provides that:

A resolution.....does not have effect .....unless it has been passed by at least two-thirds of the members of the House present and voting.

GUMMOW J: Section 22 I is the Council. The Assembly is 32(2), is it not?

MR BURBIDGE: I am grateful to your Honour. I must confess - I am assisted by my learned friend. Yes, it is, your Honour, 32(2), thank you. Your Honours, the operation of the Part is provided for in 33G and your Honours would see that it purports, under 33G(1) to have:

effect despite any other Act.....or any other law.

33G(5) provides that it:

extends to parliamentary proceedings occurring before the commencement of this Part.

Section 33H already noted as giving a limited life to the legislation in question.

Your Honours, perhaps I could just, before departing the legislation, point out that there are certain provisions of the main Act, the 1983 Act, which are also relevant to the matter. They include section 21, and I am looking now at the Special Commissions of Inquiry Act, No 90. Your Honours would see that under Division 2 of that Act - I am reading section 21:

(1) Each of sections 22, 23 and 24 does not have effect.....unless in the relevant letters patent the Governor declares that the section shall apply to and in respect of the Special Commission.

I should say that the letters patent in the current case do, in fact, so provide and accordingly purport to enliven the powers contained in those three sections, the first of which provides, section 22, that:

If any person served with a summons.....as a witness fails to attend.....the Commissioner may.....issue a warrant for the apprehension of the witness.

Again, your Honours would know from the material provided that such a summons has in fact been issued to a number of parliamentarians, including the applicant. I draw attention also, your Honours, to section 9 of the Act which provides, by subsection (3):

The Commissioner shall only receive as evidence, and (as far as practicable) only permit to be given in evidence, matter that, in the opinion of the Commissioner, would be likely to be admitted into evidence in relevant criminal proceedings.

By the Special Commissions of Inquiry Amendment Act 1901 there has been an amendment to that subsection. It is to be found in the schedule of amendments and it provides that the words "criminal proceedings" shall be read as "civil proceedings". The effect of it is to make admissible evidence at the civil standard though, of course, still requiring the Commissioner to receive only such evidence as would be admissible in a court.

Finally, your Honours, the regulation power is in section 37 and that section provides that:

The Governor may make regulations -

I omit certain words -

for or with respect to the practice and procedure to be adopted in the conduct of any Special Commission.

So that it would seem that there are several executive areas of activity, one of which is the manner in which the inquiry might be conducted.

Now, your Honours, the Commonwealth Constitution envisages, so it is submitted, and operates on the basis that each State will have certain institutions, which institutions include a Parliament. I do not, I think, need to take your Honours to authority in that regard. It is, we submit, important to recognise the concept of the parliamentary institution does, of course, derive from the Norman/French word "parlée", meaning to discourse or perhaps to speak. It is, of course - it has been described as a "counseil" of the nation. It is submitted that Parliament has fundamental characteristics without which characteristics it is not a Parliament. One such characteristic might well be thought to be that it is a place where representatives are free to debate, to amend and to pass legislation on all manner of matters.

In order to enable what has been termed the energetic discharge of that high duty, it is appropriate that Parliament has, and indeed requires, certain privileges. The nature of those privileges can be described in different ways and, to some extent, there are questions of overlap involved. But ultimately, however one approaches it, there is a concept which is that which is embraced by the term "parliamentary privilege".

Could I draw your Honours' attention to an early enunciation of that concept to be found in the judgment of Lord Denman in Stockdale v Hansard 112 ER. I have, I think, asked that the relevant pages be placed before your Honours. It was originally in 9 AD & E - - -

GUMMOW J: Adolphus and Ellis.

MR BURBIDGE: Thank you, I am assisted on all sides, your Honour, at page 103. The passages before your Honours are taken from the English Reports and I draw attention - the judgment of Lord Denman commences at page 1153 of that report. The only pages to which I take your Honours are 1154 to read, if I may, the brief extract in the centre of that page. His Lordship there records:

Parliament is said to be supreme; I most fully acknowledge its supremacy. It follows, then, as before observed, that neither branch of it is supreme when acting by itself. It is also said that the privilege of each House is the privilege of the whole Parliament. In one sense I agree to this; because whatever impedes the proper action of either impedes those functions which are necessary for the performance of their joint duties. All the essential parts of a machine must be in order before it can work at all.

His Lordship, on the following page, 1155, at the foot of the page, goes on in these terms:

That Parliament enjoys privileges of the most important character, no person capable of the least reflection can doubt for a moment. Some are common to both Houses, some peculiar to each; all are essential to the discharge of their functions. If they were not the fruit of deliberation in aulâ regiâ, they rest on the stronger ground of a necessity which became apparent at least as soon as the two Houses took their present position in the State.

At 1156:

Thus the privilege of having their debates unquestioned, though denied when the members began to speak their minds freely in the time of Queen Elizabeth, and punished in its exercise both by that princess and her two successors, was soon clearly perceived to be indispensable and universally acknowledged. By consequence, whatever is done within the walls of either assembly must pass without question in any other place. For speeches made in Parliament by a member to the prejudice of any other person, or hazardous to the public peace, that member enjoys complete impunity. For any paper signed by the Speaker by order of the House, though to the last degree calumnious, or even if it brought personal suffering upon individuals, the Speaker cannot be arraigned in a Court of Justice.

His Lordship goes on in terms which I do not need to draw to attention at the present moment.

Now, of those privileges, we would make this submission: it is, we would say, clear that some are inherent, in effect, those which have been identified from time to time over the centuries as those required by necessity. Others may well be express because it is plain that the legislature has the power to deal with its own privileges. But what is submitted is that it may not deal with those privileges in a way which affect the fundamentals of the parliamentary institution itself.

Now, the primary privileges, it is submitted, are conceptual. They may well be thought to include an entitlement for Parliament to order its affairs in a way which permits the efficient discharge of parliamentary business. Equally - - -

BRENNAN CJ: Now, what is the proposition that you wish to advance in relation to the Parliament being unable to effect alterations in its privileges? What is the basis of that submission, because that is the key of this case, is it not?

MR BURBIDGE: Yes, it is, your Honour. The essence of it is that it may not affect its own privileges in a way which defeats the institutional integrity of the institution.

BRENNAN CJ: What stops it from doing so, having regard to the provisions of the Australia Act?

MR BURBIDGE: We would say that even the Australia Act does not, of course, take it any higher than was available to the House of Commons or the Parliament at Westminster but we would, I think, repeat the concept enunciated by your Honour Justice Gummow in McGinty [1996] HCA 48; (1996) 186 CLR 140. The passage in question is to be found at page 293 of that report commencing at about point 4 of the page, picking up in the centre of the paragraph commencing, "Section 107 of the Constitution", within that paragraph:

The Constitution operates, in various provisions -

they are nominated -

upon the footing that each State, whether an original State or a State formed under s 124, would have a Parliament and accepts that those legislatures may make laws or other decisions (for example-

and his Honour goes on with - - -

GUMMOW J: But do you not have to come to grips with what you say in paragraph 21 of your outline and with what is said in opposition to it in the submissions by those with an opposite interest, for example, what is said in the submissions of your opponents, particularly in the written submissions of Mr Justice Wood, I think, in paragraph 9. What is said in paragraph 9 of those submissions is that your characterisation in your paragraph 21 is not a proper description of what is happening here with this Act.

MR BURBIDGE: I must confess, your Honour, we have not had an opportunity to see Mr Justice Wood's material. If I am given a moment I will seek to deal with it.

BRENNAN CJ: Why is that? Why have you not have the opportunity?

MR BURBIDGE: We received it, your Honour, only shortly before the Court convened; perhaps 25 minutes before the Court convened and, frankly, I just have not had an opportunity to look - - -

BRENNAN CJ: It was filed yesterday, was it not?

MR BURBIDGE: I must say we were unaware of its existence until - - -

GUMMOW J: Its substance is in the other submission, as well, is it not?

MR BURBIDGE: Thank you, your Honour.

GUMMOW J: It is just tersely put there.

MR BURBIDGE: Thank you, your Honour, I have read paragraph 9 now. Your Honours, the answer to the direct question which is, of course, raised by the learned Solicitor-General as well is this. We would put it this way, that the privilege is plainly open to regulation though not in a manner, we would submit, which removes or undermines the essential character of Parliament itself.

HAYNE J: How does this remove or undermine it? How does this Act do so?

MR BURBIDGE: It removes it, your Honour, in this way, that that privilege which is most fundamental, so we would submit, to the character and the concept of Parliament is freedom of speech, as that phrase is encapsulated and declared in Article 9 of the Bill of Rights. That, we would submit, is, without question, a keystone, a key characteristic of the Parliament itself. Now, could I just remind your Honours that if it has been so characterised in numerous cases and, indeed, we set out a brief extract at the foot of our page 5 of our written submissions, in paragraph 19, and we refer to O Hood Phillips, reference to it as the defining characteristic of Parliament and the passage from the Privy Council advice in Chenard v Arissol which is - - -

BRENNAN CJ: This is common ground, is it not, that it is important, its characteristic. What is the scope of the freedom?

MR BURBIDGE: We would say, your Honour, that the scope of the freedom is that set out in Article 9, not to have it - - -

BRENNAN CJ: What is the scope of that and how does this Act intervene to interfere with it?

MR BURBIDGE: It impedes it, we would submit, your Honour, by, for the first time, providing that a House may, by resolution, determine that notwithstanding Article 9 and all that flows with its concept, that which a member says in the House may be called into question by a place out of Parliament. That is the essence of the position, so it is submitted.

Could we attack the matter in this way, your Honours, that if it be accepted as common ground that this freedom of speech, so defined, is essential - is an essential - of Parliament, if it is implied as a necessary characteristic as it has been, it has been said that wherever a legislature is formed, by necessity there is such an implication. The reverse concept of that is if it is necessary, and implied because it is necessary, then it cannot be removed, because it is necessary.

HAYNE J: The proposition you have just put was that notwithstanding Article 9, the freedom of speech may be called into question by a place out of Parliament.

MR BURBIDGE: Yes.

HAYNE J: Is it necessary to add to that proposition "may be called into question by a place out of Parliament at the wish of Parliament"?

MR BURBIDGE: It is not necessary to say that, your Honour, but we would say - - -

HAYNE J: Is that not the effect of this Act, namely that these matters are called into question only on the say so of Parliament?

MR BURBIDGE: It is not only on the say so of Parliament, your Honour, because the Executive retains, through 33B(4), the power to determine whether such an inquiry will or will not take place.

BRENNAN CJ: That is a power of veto, though.

MR BURBIDGE: Yes, it is.

BRENNAN CJ: We are talking about the affection of the privilege.

MR BURBIDGE: Yes. I am reminded, your Honours, that the legislation provides for a resolution by either House. So the effect of it is is that a House may determine that parliamentary privilege is to be waived. Now, it is, of course, open to respond, well, it is only the parliamentary privilege of that House, but given the nature of parliamentary privilege, particularly when one is focusing solely on the proposition that it is the right not to have something questioned, one can perceive that what is being empowered is the proposition that parliamentary proceedings to which, without question, privilege attaches - - -

GUMMOW J: But it could be questioned within the Parliament itself, for example, in deciding whether to discipline the member or suspend the member or whatever.

MR BURBIDGE: Yes, of course. There is a whole framework, of course, set up for that purpose, no question of that.

GUMMOW J: One of the things that is said against you, I think, is that is not this statute, on one view of it, facultative of that situation, as it were?

MR BURBIDGE: Certainly that is what is put, your Honour, but what the response to that is, plainly it is querying it in a place out of Parliament. It is not, we would say, like a Court of Disputed Returns which acts as a delegate of the Parliament for certain limited purposes. It is a matter in which certain evidence may be taken. It can only be evidence which is admissible, whether to the civil or the criminal standard, which is itself at variance with the concepts of totally unfettered free speech, subject only of course to such rules as the House itself properly imposes.

GUMMOW J: Is this free speech of members, not, for example, of persons summoned by a House to give evidence, say, to a committee of the House?

MR BURBIDGE: It affects all such persons, including the officers of the House and so on, yes. Ultimately, it is - - -

GUMMOW J: If that is right, has not there already been intrusion into that by the Parliamentary Evidence Act?

MR BURBIDGE: We would say not, your Honour. That enables a member - - -

GUMMOW J: It enables a witness to be tried, does it not?

MR BURBIDGE: I am sorry, your Honour is focusing on the criminal aspect of the matter. Yes, it does. If within the House a witness is thought to have committed perjury, then the House may require that person to be tried in respect of that matter, that is so.

GUMMOW J: By a court.

MR BURBIDGE: By a court, quite. But nonetheless, your Honours, what we are focusing on is the essential characteristic is that each member within the House is free to raise matters without fear that they will be queried in some place out of the House and, indeed, required to attend under compulsory process, produce documents and so on. So that in that sense we say, your Honour, that there is plainly an attempt to so fundamentally alter the character and nature of Parliament itself as to strike at the very nature of Parliament.

That really, save for one matter, concludes what we wish to say about the primary point. Could I just, however, draw attention to our paragraph 22 which is a further submission in aid of that proposition. I do not need do more than read paragraph 23. Section 106 of the Commonwealth Constitution has a temporal operation: a State Constitution is continued from time to time by force of section 106 "until altered". And we submit in paragraph 24 that the operation of section 106 is, in this respect, similar to the operation of section 109 as explained in this Court in University of Wollongong v Metwally. Section 109, as we would remind your Honour, does not include the words "continue until".

BRENNAN CJ: Mr Burbidge, your time has expired, but so far you have not directed any of your submissions to section 7A of the Constitution.

MR BURBIDGE: I believe I can deal with them in minutes, if I am permitted so to do.

BRENNAN CJ: You shall have another 5 minutes, but I think that will see you out.

MR BURBIDGE: Thank you. Your Honours, the 7A point is to be found at paragraph 28 of our submissions. We would say only this, I think, your Honours, that section 7A speaks in subsection (1)(a) of alteration of powers. The argument addressed to the Court of Appeal which found favour with them was that that was to be interpreted as only relating to legislative powers and only a reduction of legislative powers. Our point is, I think, no more than this, that what Part 4A purports to grant is a power to waive, by resolution, the law of the land, namely Article 9 of the Bill of Rights. We would say of that only this, that were section 7A directed only to reductions, then it would be open to the Upper House, for example, to amend to provide that it should have the power to reject money Bills or to - - -

GUMMOW J: Is it not put against you, and it may have been put against you in the Court of Appeal, I do not know - but it is put against you in the written materials here that the powers referred to in 7A(1)(a) are the powers in section 5 which, in respect of the Council, are already limited by their inability to initiate money Bills.

MR BURBIDGE: Yes.

GUMMOW J: But apart from that, what 7A(1)(a) is talking about is alteration of the powers in section 5.

MR BURBIDGE: We can only say that as a matter of proper interpretation, your Honour, that it does not appear to be so limited. Our learned friend, the Solicitor-General, relied upon the second reading speech. It would be our submission, and I do not take your Honours to it in view of the time - - -

GUMMOW J: Just as a matter of textual construction, forgetting about the turbulent events in New South Wales 70 years ago.

MR BURBIDGE: Nonetheless, your Honour, we would say it remains a power of a legislative character in that it changes the law. So that we would not see it as affected by that circumstance. Indeed, could we just point out, your Honours, that section 5 - - -

BRENNAN CJ: What is it that changes the law?

MR BURBIDGE: It changes the law if, instead of - the law in question is Article 9. The change in the law is that it permits questioning outside, by resolution of one House.

BRENNAN CJ: Yes.

MR BURBIDGE: Section 5, could I remind your Honours, is of course powers of the Parliament, rather than the House.

BRENNAN CJ: Where does that take you in relation to 7A?

MR BURBIDGE: We think that 7A, as it plainly relates solely to the Legislative Council, that it is not to be interpreted as limited in some way by reference to the powers of the Parliament as a whole as set out in section 5.

GUMMOW J: Section 5 is the powers of the Council. It talks about the legislature, but then the second paragraph of 5 is a limitation on the Council because it says money Bills have to initiate in the Assembly

MR BURBIDGE: "shall originate in the Legislative Assembly", that is so, your Honour, yes. Your Honour, given the time restraint, could I pass on to - - -

BRENNAN CJ: I still do not understand how it is that you say that this Act alters the powers of the Legislative Council. What power does the Legislative Council have which it did not have before?

MR BURBIDGE: It has the power to resolve that parliamentary proceedings which were before it shall be examined by a place out of Parliament.

BRENNAN CJ: And that is the change in the power?

MR BURBIDGE: It has the power to waive the privilege of the whole Parliament, a power which it did not previously have.

BRENNAN CJ: It has the power to waive the privilege of the House.

MR BURBIDGE: It is given, or purports to be given the power to waive parliamentary privilege.

BRENNAN CJ: That is the parliamentary privilege of the House, though.

MR BURBIDGE: Well, with respect, at the end of the day the privilege is that of the Parliament.

BRENNAN CJ: Yes. Just one final question: you do not find any difficulty for this submission in the characterisation of the law in Chenard v Arissol as not being a law respecting the Constitution powers and procedures of the Legislature of the Seychelles?

MR BURBIDGE: Could I go to Chenard, your Honour?

BRENNAN CJ: You will have to very briefly. It is (1949) AC, the relevant passage is at page 133, the commencement of the first full paragraph.

MR BURBIDGE: Yes. Your Honours, if I understood my learned friend the Solicitor's submission, he submits that their Lordships were per incuriam in - - -

BRENNAN CJ: He might be wrong about that. The question is whether or not the Act that is there referred to, 192 I (a), is a law respecting the Constitution powers of procedures of the legislature of the Seychelles.

MR BURBIDGE: I am sorry, and your Honour's question to me?

BRENNAN CJ: Do you find any difficulty in your argument with that passage which characterises a law that dealt with the privileges of Parliament as not being a law respecting the powers of the legislature?

MR BURBIDGE: Yes, I think, with respect, we are obliged to say that whilst that is unnecessary ultimately to the passage in their Lordships' advice upon which we rely, which of course is lower down the same page, but we would indeed recognise that if that is in fact correct, then it does pose an obstacle to our argument, yes.

Your Honours, I think I can do no more, having overstayed my welcome - - -

BRENNAN CJ: I think that is quite right.

MR BURBIDGE: - - -than to indicate that the balance of our argument is in fact, we think, adequately set out in the written submissions which we have put before the Court. May it please the Court.

BRENNAN CJ: Thank you, Mr Burbidge. Mr Solicitor.

MR KATZ: Your Honours, in the first nine - - -

BRENNAN CJ: I understand Mr Cooke has arrived. Is Mr Cooke here?

MR N. COOKE: Your Honours, I seek leave to appear at the table.

BRENNAN CJ: Mr Cooke, you had better come round here to the microphone, to the middle of the table. You are seeking leave to intervene in this matter.

MR COOKE: Yes, your Honour.

BRENNAN CJ: We have read the material which has been filed and the material does not appear to reveal any ground on which that leave should be given. Can you shortly state the reason why you should be given leave to intervene.

MR COOKE: If it is the basis that I would intervene, or the basis upon which I would intervene.

BRENNAN CJ: The basis on which you seek leave to intervene in these proceedings.

MR COOKE: Is as set out, and if I may refer to the material.

BRENNAN CJ: You can add whatever you wish orally.

MR COOKE: As being party to the meetings and personally affected by them and the material contained in them, and having interest that extends beyond those meetings, that includes with regard to a person - is this my full submission or for me to have leave to be seated whilst I hear other submissions?

BRENNAN CJ: No, Mr Cooke. We ordinarily do not give any party who is not a party to the proceedings leave to intervene. We have allowed you to come to the microphone to say why you should be given leave to intervene. Unless you can demonstrate some reason why leave should be given, we do not propose to hear you. Perhaps if you resume your seat, Mr Solicitor.

MR COOKE: That as set out in the document provided to you, that a meeting can include something that takes place perhaps by accident and can be without design - - -

BRENNAN CJ: Now, Mr Cooke, we want to give you an opportunity to say why you should be given leave to intervene but we must restrict you to what is relevant to these proceedings. Meetings are irrelevant to these proceedings. We are dealing with a legal problem here. We are not concerned with any facts.

MR COOKE: With regard to the legal part of the problem, if I may have your understanding, your Honours, I have just walked in having travelled - - -

BRENNAN CJ: That is a problem with which we do not have time to deal, Mr Cooke.

MR COOKE: With regard to matters that may be of interest to you in hearing from me, in a short form, that the Commission is established by the letters patent issued from a delegation of the Parliament of New South Wales and not from somebody other than that which would fall under investigation by any evidence that might come forward.

BRENNAN CJ: These are arguments that can be put by other parties. Why should we give you leave to intervene? What is your particular foundation?

MR COOKE: Whether or not these arguments could be put forward by other parties, I have been in the proceedings as they were put in Sydney and not heard those arguments advanced. I felt that, with my personal interest as I commenced to outline earlier, that it was of interest to me to see that the proceedings came to resolve to the benefit, as in the document, and as including what Ms Arena seeks, but perhaps in some different form as set out in the document I provided you. Basically, that the Nader Commission be restrained as set out in the document and that the inquiries be moved to some other place, with greater authority over the situation that seems to have transpired in New South Wales prima facie, and so that any forensic requirement might be made good, that such inquiry be separate from the powers of the legislature of New South Wales and, in fact, perhaps the Governor, as the High Court may so order.

BRENNAN CJ: Mr Cooke, I think we have heard sufficient to indicate very clearly to us that you have no locus standi for seeking leave to intervene and for that reason, leave to intervene will be refused. I might add that the affidavit which has been put on the file by you contains material which is irrelevant to these proceedings. It is scandalous and it will be removed under the provisions of the orders of this Court.

MR COOKE: The scandalous parts which you - - -

BRENNAN CJ: You may now leave the rostrum, Mr Cooke.

MR COOKE: Thank you, your Honour.

BRENNAN CJ: And the Bar table.

MR COOKE: Thank you, your Honour.

BRENNAN CJ: Yes, Mr Solicitor.

MR KATZ: If the Court pleases. In paragraphs 1 to 8 of our outline of argument we have sought to deal the question of the power of the New South Wales legislature to enact laws affecting its privileges in the period between the passage, first, of the Colonial Laws Validity Act 1865 and, secondly, the passage of the Australia Acts in 1986. Cases which are significant with respect to the question of that power are two cases which your Honour mentioned on Monday, and it was by reasons of your Honour's reference to those cases that we have sought to elaborate the position during that period of time. Our submission ultimately is that given the position during that period, the passage of the Australia Acts has merely confirmed the power in the New South Wales legislature to make laws affecting its privileges.

If I may deal quickly with the material first in paragraphs 1 to 8 then. Section 5 of the Colonial Laws Validity Act 1912 - - -

GUMMOW J: This is 1 to 8 of?

MR KATZ: Part III of our outline of argument, beginning at page 2 and running through to the end of page 5.

GUMMOW J: Thank you. I have been supplied with a longer document dated 6 October.

MR KATZ: I fancy those are the submissions in the Court of Appeal.

GUMMOW J: Yes, that is what I assumed. I have also been supplied with what you are now speaking about, so there is no problem.

MR KATZ: Your Honours should also have a bundle of additional materials, that is additional to those which were supplied for the purposes of the Court of Appeal proceedings, which I gather travelled to Canberra together with the document which your Honour has now, and if I can ask your Honours first to go to tab 3 which sets out the relevant provisions of the Colonial Laws Validity Act, and simply direct your Honours' attention to section 5, providing that:

every Representative Legislature shall, in respect to the Colony under its Jurisdiction, have, and be deemed at all Times to have had, full Power to make Laws respecting the Constitution, Powers, and Procedure of such Legislature;

That provision was construed by the Privy Council in Fielding v Thomas, which was a case on appeal from the Canadian province of Nova Scotia, as conferring on a representative legislature within the meaning of the Colonial Laws Validity Act, of which the New South Wales legislature is, of course, one, a power to make laws affecting the privileges of the legislative chambers. The case of Fielding v Thomas is No 4 in the bundle which your Honours have. The relevant statutory provision which was there under consideration appears in the bottom right-hand - page 607 at the bottom, and your Honours will see that that provision conferred upon both the legislative chambers of the legislature of Nova Scotia and also upon the respective members of those Houses the privileges enjoyed by the Canadian House of Commons in the case of the Assembly, and the Senate of Canada in connection with the Legislative Council and those respective powers were assimilated to those of the Houses at Westminster. The question was the validity of that particular law relating to the privileges both of the chambers on the one hand and of the members on the other. The law was held to be valid and, at page 610 at about point 6, reference was made to section 5 of the Colonial Laws Validity Act conferring full power on the legislature "to make laws respecting its constitution, powers and procedure.", and it was said by the Privy Council that such a power seemed sufficient for the purpose of enacting a law like section 20 earlier set out.

Your Honours, it is our submission that that provides authority for the proposition that the conferral of power by section 5 of the Colonial Laws Validity Act was a conferral of power to make laws with respect to the privileges of the legislative chambers of a representative legislature and, as well, of the members of such a legislative chamber.

We have referred also at the bottom of paragraph 1 to what is said by Professor Lumb in the latest edition of his book on the constitutions of the Australian States. That is behind tab 5. This edition is done after the Australia Acts and so the author's reference towards the bottom of 119 to the phrase, "the constitution, powers or procedures of the legislature", is not a reference to that phrase as it appears in section 5 of the Colonial Laws Validity Act but rather as it appears in section 6 of the Australia Acts. But he there says that such a phrase comprehends legislation dealing with, among other matters, the privileges and immunities of the Houses, no doubt relying on Fielding v Thomas.

To similar effect is material in Halsbury's Laws of England which we have annexed behind tab 6. I should perhaps say about Professor Lumb that at the time at which the Colonial Laws Validity Act remained in force, in earlier editions, the learned author made exactly the same point dealing not with section 6 of the Australia Acts but, rather, with section 5 of the Colonial Laws Validity Act. So, in our submission, the position then is that section 5 of the Colonial Laws Validity Act was a source of legislative power for legislatures like that of New South Wales to make laws with respect to the privileges of the chambers of such legislatures and, additionally, with respect to the members thereof.

In paragraph 2 we have sought to deal with the second of the cases to which your Honour the Chief Justice expressly adverted on Monday, namely, Chenard v Arissol. As your Honours have already mentioned in the course of my learned friend, Mr Burbidge's submissions, that was a case dealing with the legislature of the Seychelles. That was not a representative legislature within the meaning of section 5 of the Colonial Laws Validity Act and so that could not be a source of power in that legislature for the making of laws with respect to privileges. But an argument was made by implication from the provisions of section 5 of the Colonial Laws Validity Act and it was with that implication that their Lordships were dealing at the top of page 133 in the passage to which your Honour the Chief Justice has earlier adverted. There, their Lordships were making the distinction between a law with respect to the privileges of legislative chambers, on the one hand, and a law with respect to the privilege of individual members of a chamber, on the other.

Their Lordships were of the view that section 5 of Colonial Laws Validity Act authorised the making of laws by a representative legislature dealing with the privileges of the chambers themselves but not a law dealing with the privileges of individual members. It does appear to us, as we have submitted in paragraph 2 of our outline, that that decision may have been made per incuriam because it appears to fail to take account of the fact that the section under consideration in Fielding v Thomas dealt not only with the privileges of the chambers concerned but also with the privileges of the individual members of those chambers.

In paragraph 3 we advert to the existence of two New South Wales statutes enacted during the period when the Colonial Laws Validity Act was applicable to the New South Wales legislature, in particular, the Parliamentary Electorates and Elections Act and the Parliamentary Evidence Act. We deal in paragraphs 4 and 5 with the Parliamentary Electorates and Elections Act. We first seek to make the point in paragraph 4 that one of the traditional privileges of the British House of Commons was to be the sole judge of controverted elections of members to that House and in 1868, by Act of the Imperial Parliament, that privilege of the House of Commons was transferred to the ordinary courts. It would appear from what appears in the latest edition of Erskine May, which your Honours have, relevantly, behind tab 10, that the purpose of the giving up by the House of Commons of its absolute privilege with respect to its own composition was motivated by a concern about partiality in the exercise of the privilege of determining its own composition. The material appears at the top of page 36 in the extract which your Honours have behind tab 10.

The position in New South Wales is like the position which has obtained in the United Kingdom since 1868. In fact, it became 60 years later in New South Wales. In 1928 the Parliamentary Electorates and Elections Act was amended so as to transfer from the House itself to the Supreme Court of New South Wales, sitting as a Court of Disputed Returns, the power to deal with the question of controverted elections and returns. This was an illustration of a law being made by the Parliament of New South Wales dealing with the privileges, in one sense, of the Legislative Assembly.

Your Honours have the current provisions behind tab 9, and time does not permit me to deal with them at length, but your Honours will see that the provisions now confer upon the Supreme Court of New South Wales, sitting as a Court of Disputed Returns, an exclusive power, as appears from section 156, to deal with a matter which was traditionally a matter within the absolute privilege of the Lower House itself and in the British House of Commons as well earlier, that of dealing with the composition of the House, and the provisions deal also with controverted elections to the Legislative Council now.

BRENNAN CJ: Mr Solicitor, the points that you have made so far are that the power to make laws for the peace, order and good government of the State which, of course, are contained in section 5 of the Constitution Act, are sufficient to support laws which go in enhancement or in confirmation of parliamentary privilege: Fielding's Case; Chenard's Case.

MR KATZ: Yes.

BRENNAN CJ: Neither of those cases deals with the diminution of parliamentary privilege but the instances that you are now giving us are cases of a diminution of parliamentary privilege which, obviously, at least by constitutional convention have been held to be valid. Now, the question really is if this statute goes in diminution of the privilege, does it go in such diminution of the privilege as to deny an inherent character of the Parliament itself, which is the argument put against you?

MR KATZ: Yes. May I say your Honour, I think, referred to the peace, order and good government power. As we understand the authorities, the view was taken, at least in Fielding v Thomas, that that was not a sufficient power to found the making of laws relating to the privileges of the chambers. Rather, it was the power conferred by section 5 of the Colonial Laws Validity Act. Whether that view be correct - - -

BRENNAN CJ: It does not much matter.

MR KATZ: No, I think not but whether it be correct or not - - -

BRENNAN CJ: We can pick up section 2 of the Australia Act 1828 just as easily.

MR KATZ: Yes, exactly. Your Honour raised with me the matter of fact that the laws both in Fielding v Thomas and in Chenard v Arissol were those expanding the privileges either of the chamber or of the members or of both. Your Honours, our submission as to that is this: if it was possible, pursuant to section 5 of the Colonial Laws Validity Act or whatever other provision, for a legislature to enact a law increasing the privileges, it must logically follow that it was possible to repeal such a law. The subject matter of a law which repeals an earlier law is the same subject matter as that of the earlier law itself. If the Nova Scotia legislature, for instance, could make a law with respect to privileges increasing those privileges, it could, we would submit, necessarily, make a law repealing that law thereby diminishing those privileges. It would be a strange legislative power which could only operate in one direction.

Indeed, if it could repeal an earlier law of its own which had expanded parliamentary privilege, why then there seems no reason to conclude that it could not enact a law which diminished privileges from some other source than a law earlier made by it. So, our submission is that it necessarily follows from a case like Fielding v Thomas that the power operates in both directions, and we say the same thing about Chenard v Arissol. It may be a matter of coincidence that in those cases the laws were expansive laws but that does not alter the position.

What we are seeking to do by referring in particular, say, to the Parliamentary Electorates and Elections Act is to show an instance of a law which diminished privilege.

HAYNE J: But is there a point beyond which the Parliament cannot go and does this law pass that point? That is the argument against you, that there is such a point; institutional integrity is the tag and this affects it.

MR KATZ: Yes. Well, I can concede that there could, in theory, be such a law for the sake of argument and then simply assert, as I do, that this law does not pass that limit. I gather from what your Honour the Chief Justice said and what your Honour Justice Hayne said that your Honours would prefer me to deal with that point immediately and then see how much time I have left to deal with other points. May I make - - -

BRENNAN CJ: I think we would all like you to address that point.

MR KATZ: Yes. May I make these submissions then. An inquiry conducted pursuant to the Special Commissions of Inquiry Act has itself no power to visit any sanctions on a member for anything said or done by the member in a House. The sole function of such an inquiry pursuant to the Act is to inquire into a matter and to report to the House the product of the inquiry. The power to deal with the product of the Commissioner is and remains entirely in the House concerned.

BRENNAN CJ: Let me put the argument against you here, and let me put the argument against that, namely, that here there are compulsive powers to compel a member of the House to attend in order to have an opportunity to give evidence if that member so sees fit in relation to a statement made by that member in the House. It is also a power to inquire into whether that member, when the statement was made, had evidence in support of it. Now, the question is whether that amounts to such a canvassing of the member's conduct as to infringe that freedom which is at the heart of the parliamentary privilege.

MR KATZ: If your Honour is asking me whether such an inquiry could have been conducted by the Executive in the absence of this law, I would concede that such an inquiry could not have been held in the absence of such law.

BRENNAN CJ: No, that is not the question. The question is whether or not, by exposing a member of the House to those sanctions and to that inquiry, that member's freedom of expression is being interfered with to such an extent as to deny an essential privilege of the Parliament or of the House to which that person is a member.

MR KATZ: Yes. A question immediately arises as to the obligation of a member to attend in response to a summons from the Commission to do so. Section 33D(3)(a) provides that a waiver:

does not operate to waive parliamentary privilege to the extent that it can be asserted by a member of either House of Parliament in relation to anything said or done by the member in parliamentary proceedings within or before a House of Parliament or a parliamentary committee -

An accepted parliamentary privilege of members is not to attend in response to compulsory process in certain situations, relevantly, when the House of Parliament of which the member is a member is in session, and to that extent the question of compulsory attendance seems to recede in significance. But, in any event, my submission is that the necessity to attend for the purpose of choosing not to give evidence, if I may use the phrase which appears in 33D(3)(b), is not itself such an obligation as could be said in some way to impair the essential characteristics of the Legislative Council sufficiently to bring us within some impermissible area.

I am sorry, your Honour did ask me not only about the question of attendance but also about the question of the ability of others?

BRENNAN CJ: About the question of whether or not, when the statement was made, there was evidence to support it.

MR KATZ: Yes. The member, of course, need not participate in any way in the inquiry and so it need not be thought that the member would be compelled to give evidence as to that issue. In my submission, the conclusion which might be reached on such a matter by the inquirer, again, must be recognised to be a conclusion which, itself, visits no legal detriment upon the member. It merely supplies material upon the basis of which the House itself may choose to exercise its undoubted powers. One may consider the situation in the absence of this legislation. Your Honour Justice Gummow referred already to the Parliamentary Evidence Act. The Parliamentary Evidence Act deals with the giving of evidence by members as well as by strangers and there seems no reason to doubt that an inquiry could be conducted within the House itself in the course of which the member would be required to give evidence under the Parliamentary Evidence Act.

Indeed, the position of the member is really very much more generous in circumstances in which the House chooses to rely on this external facility than it would be if the House itself were to conduct its own inquiry because then, as your Honours will see from section 5 of the Parliamentary Evidence Act, no question arises of non-attendance. The Parliamentary Evidence Act provides - - -

GUMMOW J: "Attendance shall be procured in conformity with, so far as is practicable - - -"

MR KATZ: Yes, "the mode of procedure observed in the British House of Commons." The mode of procedure observed in the British House of Commons is dealt with in Erskine May, and I do believe that your Honours have the relevant portion of Erskine - - -

GUMMOW J: Well, what is it?

MR KATZ: It is in - - -

GUMMOW J: Just tell me what it is.

MR KATZ: I am sorry, your Honour, yes, I will, as soon as I can find it.

GUMMOW J: What is the gist of it?

MR KATZ: Yes.

Attendance of Members

If the evidence of a Member is desired by the House, or a Committee of the whole House, he is ordered to attend in his place on a certain day. But when the attendance of a Member as a witness is required before a select committee, the chairman sends to him a written request for his attendance. Pursuant to the resolution of 16 March 1688, `if any Member of the House refuse, upon being sent to, to come to give evidence or information as a witness to a committee, the committee ought to acquaint the House therewith, and not summon such Member to attend the committee.'

That is the end of the resolution.

On occasion, Members have been ordered by the House to attend select committees. There has been no instance of a Member persisting in a refusal to give evidence when ordered by the House to do so.

A Member who has submitted himself to examination without any order of the House is treated like any other witness. When a Member's refusal to answer questions has been reported to the House by a select committee, the House has ordered that he should submit his objection to the committee.

So that the position is then that the House to which the member belongs may order the attendance of the member in his or her place for the purpose of giving evidence. Your Honour will see from the rest of the Parliamentary Evidence Act no such solicitude is shown to a member as is shown in the Special Commissions of Inquiry Amendment Act about choosing whether or not to give evidence and being able to refuse to answer questions on certain topics because they relate to matters said or done by the member in the House.

GUMMOW J: It is all intramural and it may relate to some other privilege of the House, namely as to misconduct or whatever by the member in the view of the House, so on and so forth.

MR KATZ: Yes.

GUMMOW J: There are a number of privileges that are in play in these situations, Mr Katz.

MR KATZ: No question about that aspect but I was seeking to, I suppose, answer your Honour the Chief Justice's concern about the fact that there will be an inquiry into whether or not there was evidence to support - - -

BRENNAN CJ: Say, for example, an Act was passed which said that ICAC shall be free, at any time, to inquire into whether any allegations made by a member of the Parliament in the House are supported by any evidence, and ICAC shall, at the end of that inquiry, provide a copy of its conclusions to the House of which that person is a member. A valid law?

MR KATZ: Your Honour, I would submit it would be but, at the same time, I would seek to distinguish such a law from the present law which requires a specific resolution by the House concerned by a two-thirds majority before such a thing can occur but I certainly would not concede the invalidity of such a law.

I have referred to section 13 - perhaps your Honour Justice Gummow first referred to section 13 of the Parliamentary Evidence Act which deals with the trial in the ordinary courts of allegations of perjury against persons who give evidence in the House - - -

GUMMOW J: You said that would include a member.

MR KATZ: Yes, but may I just draw attention to the fact that there was a similar provision in force in New Zealand at the time the Privy Council decided Prebble's Case. It was section 13 - - -

GUMMOW J: Yes. You mention that in your written outline.

MR KATZ: Yes, and the Privy Council itself, having set out what it described as a "basic principle underlying Article 9", and having set out the reasons which it gave for giving force to Article 9, then specifically referred to the ability of a Parliament to enact statutory exceptions to Article 9 and instanced section 108 of the New Zealand Crimes Act as it appeared as one of those examples. In my submission, just as, in the example which I was seeking to develop about the giving up of its absolute privilege with respect to the composition of its House, not only by the New South Wales legislation, not only by the British House of Commons but by every legislature that one can point to, both in Australia and overseas in the common law tradition, one finds, for instance, provisions more squarely directed to the freedom of speech in Parliament one which says that a member is at risk of being prosecuted in the ordinary courts for a felony and liable to be sentenced to penal servitude if a member deliberately falsely says something in the course of giving evidence to the House under the Parliamentary Evidence Act.

Now, for what it may be worth, in a non-constitutional setting, certainly the Privy Council saw no difficulty with such a system and, in my submission, there is no difficulty with such a system. It is entirely consistent with the position, in so far as the ability of the legislatures to make law relating to privileges is concerned, that such laws can be made. In our submission, this law is really a relatively minor departure from Article 9. I have sought to emphasise already that it is merely a - your Honour used the word as well - facultative law; depends on a two-thirds majority; the member does not have to participate; the outcome of the inquiry is not the imposition of any sanction by the inquirer but simply the supply of information upon which the House itself can exercise its undoubted powers. In my submission, all of those matters really combine to make it impossible to suggest that this law has crossed any line in the sand, however one may draw it, practically speaking.

I suppose I should just perhaps, if I am permitted to do so, make one last point about this and that is that just as the resolution of disputes about controverted elections seems to have been infected by questions of partiality, in England, from the 1770s until 1868 or, indeed, before the 1770s, until 1868, when the matter was transferred to the House, these sorts of questions could be infected by partiality. One of the things that this law does is to take the fact-finding process away from the House itself in which questions of partiality might intrude and to give the fact-finding process to some, I say, experienced fact finder for the reason that the only person who could be appointed as a special commissioner is a person who is either a judge or a legal practitioner of seven years standing, to an experienced fact finder who one would naturally infer would have no partisan problems in resolving the sorts of questions which might arise under the Act.

Your Honours, for those reasons, it is our submission, accepting for the sake of argument as I did to your Honour Justice Hayne that there is a line to be drawn somewhere, this law, in our submission, falls comfortably on the right side of the line.

GUMMOW J: Why is there not an alteration of powers within the meaning of section 17? What are the powers there referred to?

MR KATZ: Part 2 of the Constitution Act deals with the powers of the legislature. Section 7A is embedded within Part 2. When one goes through Part 2, one finds that every section is concerned with the making of laws and the manner of their making. Section 5 is the general legislative power. Section 5A deals with laws about appropriations for ordinary annual services and deals with the manner of their passing in certain classes - - -

GUMMOW J: Section 7A is a qualification to 7, is it?

MR KATZ: Yes, it is as, indeed, are other provisions. Any of the manner and form provisions contained within Part 2 are qualifications to section 7. But the point which I am seeking to make now - I am sorry, your Honour, I see that the red light is on.

BRENNAN CJ: I think we will allow you to complete your argument in relation to section 7A.

MR KATZ: Thank you, your Honour. As to the question of powers, I focus specifically on the presence of section 7A in a part which is plainly concerned with the question of legislative powers. One finds in every section - 5A and 5B I have mentioned just momentarily. Section 5C tells us about the words of enactment which are to appear in laws made under 5A and 5B. Section 7A is the one about which the dispute has presently arisen. Section 7B is a manner and form requirement for the making of laws relating to the Legislative Assembly, and 8A deals specifically with the question of assent to Bills.

It is our submission that in a setting like that it is, with respect, the most obvious conclusion to draw, that the powers being referred to in 7A(1)(a) are the legislative powers. Completely independently of that, it was our submission that alteration should be looked at in the context of the purpose for the insertion of the provision and that alteration should be treated as altering by diminishing. I do believe, in our current document, we have references to some of the material but - I am now on paragraph 10 at the bottom of page 6, your Honours. We there refer to various things but perhaps if I could ask your Honours to go to what, as I understand it, your Honour will now have as attachment 2.3. That is as I read the index. This was material before the Court of Appeal. Before the Court of Appeal we put the second reading speech by the Attorney-General for the Bill which introduced section 7A. The Bill was introduced in the Upper House because it was to relate to the Upper House. I have one here.

GUMMOW J: Yes. Well, we have seen that. It is in the material.

MR KATZ: It is, and I draw attention to what appears to me to be really something extremely powerful at the bottom of the right-hand column of 504. It says - Attorney-General:

We recognise that you can abolish a place and also "white-and" it. There are more ways of killing a cat than choking it. You may not abolish a House , but you might so alter its constitution or powers as to make it useless. That is what I meant when I said the House is not to be abolished nor is its constitution or powers altered except as provided in this bill.

So, what we are looking for here then is a prohibition against white-anting the House; against choking it; killing it otherwise than by choking it; against making it useless, and it was in that context that we submitted that alteration should be construed as effectively meaning a reduction in the powers. Whether they be the legislative powers or not, for that purpose does not matter. The Court of Appeal was content to accept both of the submissions but either would be sufficient for our purposes and we submit, in fact, that both of them is an appropriate characterisation.

Your Honours, I have really trespassed on the time.

BRENNAN CJ: Yes. Thank you, Mr Solicitor.

MR KATZ: If your Honours please.

BRENNAN CJ: Mr Neil. Mr Neil, we thought a quarter of an hour for the interveners.

MR NEIL: Certainly, your Honour, yes. Your Honours, could I just deal firstly with reinforcing our proposition that there is power to amend by statute by just drawing attention to two passages in two different cases. One is on the learned Solicitor-General's list. It is Commissioner of Stamps v Telegraph Investment Co [1995] HCA 44; 184 CLR 453. The particular passage commences towards the end of 466, reference to the Bill of Rights in the context of money matters. And then in the judgment of your Honour Justice Gummow and Justice McHugh.

GUMMOW J: I think it is the other way round.

MR NEIL: Justice McHugh and your Honour Justice Gummow, yes.

In the eastern colonies of Australia where s 24 of the Australian Courts Court applied, the Bill of Rights was a statute in force within the realm of England" in 1828, and, as such, applied except so far as later altered by local statute.

Now, that is judicial recognition of its application in New South Wales but that it can be - - -

GUMMOW J: It applies here under the Imperial Acts Application Act 1997 which they do not have in South Australia, so it is dealing with a different matter.

MR NEIL: Yes. That reapplied it, your Honour. Your Honours make it perfectly clear that it can be altered by local statute. That seems to have been picked up from the cases cited in the footnote there, and we have just taken the headnote and one page of one reference in the judgment of Justice Isaacs in Commonwealth and The Central Wool Committee v The Colonial Combing, Spinning and Weaving Company Limited [1922] HCA 62; 31 CLR 421. Perhaps if I hand up this to your Honours and copies to my learned friends. In the passage at page 463, at about point 5, his Honour says:

That Act -

meaning the Bill of Rights -

is a definite law which, though, as May says in his Parliamentary Practice "was but a declaration of the ancient law of England," stands nevertheless as an unrepealed enactment operating of its own force as a law and as part of the Constitution of England. And, except so far as altered by local statute, it is part also of the Constitution under which every Australian, whether as a member of a State or of the Commonwealth, lives and moves.

That is a recognition that it can be altered by local statute.

The next level to which we move is the question of whether this Act alters in such a way as to provide some fundamental change to the character of the Parliament's position or the Parliament itself. Your Honours, as Holdsworth shows in the passage in our written submissions we refer to, the privileges have been, in effect, changing centuries. It was only 11 years after the Bill of Rights that some of the privileges of members of the House of Lords were substantially reduced because of abuses. There have been periods of prerogative power. The privileges have expanded and contracted.

If the Parliament of New South Wales could not deal with that matter, it would be frozen in time. Changing circumstances could never be taken into account.

In terms of the English legislation which was referred to and is in our bundle of material, that, in its terms - - -

GUMMOW J: You refer to some recent British legislation, do you not?

MR NEIL: Yes, your Honour.

GUMMOW J: Very recent British legislation.

MR NEIL: Indeed, your Honour. It gives a member the option - and it only relates to that member - but if the member waives his protection:

any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and

(b) none of those things shall be regarded as infringing the privilege of either House of Parliament.

In our submission, we say that what has happened here is the applicant has an alternative to give evidence or not and that she therefore is in a very similar position to what has happened in England.

Could I just mention that under the Special Commission of Inquiries Act there are provisions in section 7 and 8 for private hearings and for non-publication of information provided, as well as section 9, which relates to the public hearings in its terms, and section 9 is the section that deals with evidence that can be brought forward - as "likely to be admitted" in civil proceedings. This leads me to support the proposition that this Act is well short of crossing any dividing line because the Commission has powers to deal fairly and reasonably with matters that might be thought to involve some kind of partiality if the House dealt with it.

The allegations are, amongst other things - your Honours have read the speech. The speech claims that a former Chief Justice and the Chief Justice were involved in covering up the Justice Yeldham matter. It claims that there are massive cover-ups - - -

GUMMOW J: How does that go to validity of the Act?

MR NEIL: Your Honour, the point I am seeking to make, that if the Parliament has decided that this is an appropriate procedure facultatively and in aid and the best way of dealing with this matter, one can see why. To have judges called before the Parliament and have a public inquiry without any way in which to have necessarily private sessions would, in our submission, be a most unreasonable way to deal with the matter as compared with this type of inquiry which is the Parliament's wish and which provides a reasonable way of dealing with the matters, to inquire into, amongst other things, the allegation that, with others, Justice Wood set out to pervert his own Royal Commission.

GUMMOW J: That is a good "common lawyer's" point, if I may say so, Mr Neil. It has nothing to do with validity.

MR NEIL: With respect, if we are talking about a dividing line, and if we are talking about whether this Act is facultative, then, in my submission, it is on point because it is within the power of the Parliament to provide a reasonable means of dealing with something that it would like to be dealt with by this Committee, and one can well see why it is more appropriate for the Commission than for the Parliament. I ally that to the point that if the member were to give evidence in the Parliament, then, of course, there is already a provision that affects privilege considerably in section 13 of the Act.

In my respectful submission, there can be no doubt that the Parliament would have power, we would say, to go so far as to repeal provisions of the Bill of Rights but it certainly has power to effect this legislative exception and, if anything, it can be well seen that the exception is necessary to preserve institutional integrity in the wider sense. If it please the Court.

BRENNAN CJ: Thank you, Mr Neil. Mr Burbidge.

MR BURBIDGE: Thank you, your Honours. I respond very briefly, if I may, on three points only. My learned friend, the Solicitor-General, asserted that there are no sanctions vouchsafe to the Commissioner, and that, of course, is correct but, with respect, is to miss the point which is that the whole procedure which is envisaged must unquestionably inhibit members in the execution or carrying out of their duties. I do not need to expand, your Honours. Plainly enough - - -

GUMMOW J: You say inhibit in a practical, if not legal, sense?

MR BURBIDGE: Yes. I am sorry, your Honour, yes, quite. Plainly, the Commissioner must report, if the member exercises the right not to appear, then it is envisaged that the inquiry will nonetheless proceed and others will query that which the member has done. A report will go forward and perhaps the member will be punished by the House. These are plainly inhibiting factors.

The second point, your Honours, is the constant reference to the concept that this is a facultative law and that this in some way is a facility of the Parliament or of the House. With respect, we would say not. It is, in truth, an Executive inquiry. It is within the discretion of the Executive whether or not it takes place. It is 33B(4). It is exercising coercive powers as designated by the Executive. That is section 21. It is to be carried out in accordance with practice and procedures which are capable of being set by regulation; section 37, and, of course, ultimately, it reports not only to the House but to the Governor as well.

The third matter, your Honours, was the reference to what might be called the "perjury exceptions". My learned friend referred, of course, to section 108 of the New Zealand Crimes Act and the similar provision that exists in New South Wales. We would simply say of that, your Honours, that the concept of taking evidence on oath is one which is not an essential aspect of parliamentary operation. Indeed, the proposition, we would believe, is that the Parliament has no power to administer oath absent legislative empowerment and it would follow, we would say, that if indeed the House forms the view that a person may be committing perjury, then it is entirely appropriate that that matter should be, as it were, farmed out for decision by an appropriate court but we would submit that in no sense could that be regarded as an essential aspect of parliamentary character in the same way as is the freedom of speech which is the subject of the current legislation. Those are the matters in reply, may it please the Court.

BRENNAN CJ: Thank you, Mr Burbidge. The Court will consider its decision in this matter. We will adjourn until 2 o'clock this afternoon.

AT 12.43 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.06 PM:

BRENNAN CJ: On 17 September 1997 the applicant, Mrs Arena, a member of the Legislative Council of the Parliament of New South Wales, made a speech in the Council relating to a report of a Royal Commission into the New South Wales police. In the speech, Mrs Arena made a number of allegations against named persons. Shortly after the speech was made the Special Commissions of Inquiry Amendment Act (NSW) ("the Act") was passed and the Legislative Council passed a resolution in conformity with its terms. In consequence a Special Commission of Inquiry was appointed to inquire into the claims made by Mrs Arena including the question whether Mrs Arena had any evidence to support those claims.

Mrs Arena brought proceedings in the Equity Division of the Supreme Court of New South Wales challenging the validity of the Act. The Court of Appeal has upheld its validity and this is an application for special leave to appeal against that Court's judgment.

As the argument developed, the principal attack upon the validity of the Act was based on its suggested infringement of the parliamentary freedom of speech which is prescribed by Article 9 of the Bill of Rights, a law which is in force in New South Wales by virtue of the Imperial Acts Application Act 1969 (NSW), s 6, Second Schedule, Part 1. It is submitted that that freedom of speech is an essential characteristic of a Parliament which the Parliament of New South Wales cannot diminish in the manner prescribed by the Act. Section 2(2) of the Australia Act 1986 provides that the powers of the Parliament of New South Wales "include all legislative powers that the Parliament of the United Kingdom might have exercised before the commencement of [the Australia Act] for the peace, order and good government of that State". The universality of the power thus conferred is subject to the Commonwealth of Australia Constitution Act and to the Constitution of the Commonwealth: s 5(a). By decisions of long standing so plenary a power has been held sufficient to support laws affecting the privileges of legislatures: see Fielding v Thomas [1896] AC 600; Chenard v Arissol [1949] AC 127. Although those decisions related to the establishment or affirmation of privileges, the general proposition that a Parliament has power to affect the privileges of its Houses is well-established: see those same cases, and Prebble v Television New Zealand Ltd [1994] UKPC 4; [1995] 1 AC 321 at page 337.

The critical question on the present application is whether the Act so affects the parliamentary privilege of free speech that it invalidly erodes the institution of Parliament itself. If an affirmative answer could be given to that question, the applicant would have made a case for the grant of special leave. But whatever limits there might be upon the powers of Parliament legislatively to affect its privileges, it is not possible to regard this Act as exceeding those limits.

A House of Parliament in which allegations are made has a legitimate interest in knowing, and perhaps a duty to ascertain, whether there is substance in allegations made by a member on a matter of public interest. It is within the power of the Parliament to authorise that House to engage, or to authorise the engagement, of a Commissioner to inquire into such allegations and to report to the House. That is in substance what the Act - and the Commission issued in the instant case - seek to achieve.

The Act does not alter the powers of the House: rather, it affects the privileges which govern the manner in which the House transacts its business. So much appears from the judgment of the Privy Council in Chenard v Arissol. Nothing that we have said should be thought to diminish the importance which the Courts have traditionally accorded to the privileges of the Parliament: see, for example, Prebble v Television New Zealand Ltd [1994] UKPC 4; [1995] 1 AC 321 at 332.

The decision of the Court of Appeal that the Act is valid is correct. Accordingly it would be futile to grant special leave to appeal. Special leave should be refused.

MR KATZ: I ask for an order for costs, if your Honours please.

BRENNAN CJ: Do you have anything to say about that?

MR BURBIDGE: As your Honours can see, we submitted, and indeed submit again, that having regard to the public importance of the matter, it is a matter in which no order for costs ought be made.

BRENNAN CJ: The ordinary order for costs must follow. Special leave will be refused with costs. The Court does not propose to make any order as to costs in relation to the intervener.

MR KATZ: As your Honours please.

MR BURBIDGE: If the Court pleases.

AT 2.11 PM THE MATTER WAS CONCLUDED