‘Not a good look’: witnesses refuse to appear before NSW parliamentary hearings after court ruling | New South Wales
Witnesses are refusing to appear before a New South Wales parliamentary inquiry over a recent court decision labeled as having a “completely unacceptable” impact on public interest investigations.
In December, the NSW court of appeal ruled that provisions of the Parliamentary Evidence Act allowing arrest warrants were invalid on the grounds that they undermined the institutional integrity of the court.
The changes to the more than 100-year-old law come after James Cullen, chief of staff to the prime minister’s chief of staff Chris Minns, took legal action in October to avoid facing an investigation into the leak of confidential minutes from a report into the proposed sale of Sydney’s Rosehill Racecourse.
Ben Franklin, president of the legislative council, proposed issuing a warrant for his arrest through the court under the 1901 provisions covering non-parliamentary witnesses who ignore subpoenas.
This follows an earlier clash between the Prime Minister and the police minister’s staff and another parliamentary committee over the Dural caravan investigation. Five staff members, including Cullen, eventually agreed to come forward after being threatened with arrest.
In March this year the Australian high court granted special leave to appeal against the court of appeal; It seems unlikely that this permission will be heard until September.
Following the decision, witnesses chose not to appear at the parliamentary inquiry in 2026.
Anthony Whealy KC, chairman of the Center for Public Integrity and former Icac deputy commissioner, said it was “completely unacceptable that parliament cannot compel witnesses to appear on matters of intense public interest”.
“This is not a good look for the Minns government, and it is not a good look for the parliament to have adequate knowledge of the democratic principles within its mandate.”
The former appeals court judge said loss of jurisdiction similar to that in other states undermined investigations that were often precursors to ICAC investigations.
Last week, Brigid Glanville, external media adviser to the Director of Public Prosecutions (DPP), failed to appear before a upper house inquiry into identity protections for court proceedings involving children, including the DPP’s decision to 2GB a story about a sentencing hearing involving a young person.
The chairman, Greens MLC Sue Higginson, told the inquiry on Friday that Glanville, who was present at the meeting where the decision was taken, had refused to appear before the committee or make a written statement on several occasions and was not prepared to be subpoenaed to give evidence.
Instead, DPP executive Sally Dowling conducted the investigation alone. Asked if he had discussed the appeal court’s decision with DPP staff, Dowling said he had.
“The decision in Cullen, like all major constitutional decisions, was sent to every staff member in the organization via our internal email system. We are a law firm,” he said.
A spokesman for Glanville’s employer, GRACosway, said in a statement that he declined an invitation to appear at the hearing “as it is his right” to do so.
“It should be noted that, as a result, [court of appeal] decision… parliament cannot force people to give evidence to most NSW parliamentary inquiries.”
Higginson told Guardian Australia the incident showed “how important these witness powers are”.
“The key witnesses… are not coming to testify,” he said.
In March, no further witnesses appeared ahead of an inquest into mold and maggot problems at Newcastle’s Calvary Mater hospital. James O’Brien, facility manager of the hospital’s maintenance subcontractor Honeywell, explained the appeal court’s decision as follows: ABC reported.
The appeals court’s ruling has led to a stalemate in which the Minns government, which is in a minority in both chambers, has been unable to pass a slew of bills in the upper house, where the opposition and challengers could unite to restore the balance of power.
The opposition and the crossbench passed a bill in March to fix invalid provisions that allowed the speaker of the upper house to issue an arrest warrant instead of a court, but the legislation currently sits in the lower house without government support.
This led the opposition to attempt to attach the amendments to unrelated bills, effectively halting passage of many pieces of Minns government legislation.
On Tuesday, Franklin ruled the practice was allowed after the government tried to block it, which could force Labor to negotiate changes to parliamentary evidence laws.
On Tuesday, the prime minister said he would consider amending the invalid laws but would wait for the high court’s decision “before tackling legal changes.”
Following the appeals court’s decision, he rejected the idea that the current situation undermines democracy. “I don’t think so. We have a separation of powers in New South Wales, we have a strong judiciary, we have an independent corruption watchdog.”
