NSW Premier Chris Minns’ chief of staff wins court bid to strike down century-old law

Cullen did not want to appear before a separate upper house inquiry into how confidential draft minutes of a parliamentary committee examining the proposed sale of Rosehill Racecourse were leaked to the media last year.

MPs cannot be forced

Members of Parliament are not covered by the law, meaning Minns cannot be forced to testify.

Cullen has previously said there are important reasons why ministerial staff should not be “forced to appear before parliamentary committees on the grounds that in a Westminster parliamentary democracy it is ministers, not their staff, who are accountable to parliament”.

No warrant has been issued for Cullen’s arrest and the court order means there is no basis for a warrant to be issued in the future.

What do the laws say?

NSW Parliamentary Evidence Act 1901 says that witnesses other than members of parliament may be called before parliamentary inquiries.

It states that if the witness does not attend and give evidence, the speaker of the relevant house of parliament may issue a certificate to the Supreme Court of NSW if satisfied that the failure was “without just cause or reasonable excuse”.

The law says that based on this certificate, the court will “issue an arrest warrant” for the person’s arrest. The court found these provisions to be unconstitutional and therefore invalid.

Daley’s lawyers, led by Craig Lenehan SC, who is now a Federal Court judge, said in submissions to the court that the law did not provide the court with a “sufficiently independent” and impartial role in issuing arrest warrants.

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This is because, according to their submission, the provisions “contain no express language to imply that the judge summoned to issue an arrest warrant is permitted to inquire into the essential veracity of the facts set out in the certificate provided by the presiding judge.”

Authorities said the judge was asked to issue an arrest warrant “effectively in accordance with the instructions of the presiding officer” without hearing from the affected person and without exercising any independent discretion.

On this basis, they said that the provisions imposed on the Supreme Court a function that significantly undermined its “institutional integrity” and that this was unconstitutional.

The independence of the court was restricted

The court accepted this argument. In its written decision, it said the law did not allow “the judge concerned to bring independence, impartiality and fair-mindedness to a meaningful decision-making process.”

“Instead, the regime exploits the perception of these qualities to lend the appearance of judicial authority to a decision that has essentially already been made. [the presiding officer].

“To abuse the reputation of independence in this way, without the actual act of independence, is to greatly undermine the institutional integrity of the court.”

The court said: “[it] It may be considered desirable, if not actually necessary, for both houses of parliament to have broad powers to subpoena individuals, if necessary by force, to assist them in carrying out their important functions, including the accountability of government.”

But he said NSW was unique in adopting “a process for at least most of its committees that involves the Supreme Court when push comes to shove”.

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“No other jurisdiction in Australia has a judge of any relevant tribunal. Instead, jurisdictions have enacted legislation giving either the chamber directly or one of its members the power to mandate attendance.”

He said the upshot of his decision was that “there is currently no valid coercive power before a house or committee of the NSW parliament to compel participation”; There is a narrow exception regarding those who are sedentary. parliamentary standing committee on public works.

The chairman or vice chairman of this committee has direct authority to issue arrest warrants.

Laws ‘need critical review’

Gabrielle Appleby, UNSW law professor and research director at the Center for Public Integrity, wrote a discussion paper. a current parliamentary inquiry Under the provisions of the NSW Parliamentary Evidence Act.

He said the decision made clear that the laws were “in critical need of review and modernisation”.

“If the legislative council wants to fulfill its constitutional role of holding the government to account, it must have appropriate authority to compel witnesses,” Appleby said.

“The Court of Appeal underlined the importance of completing the works. [upper house] “The privileges committee was already working before this case arose to update the legislation and ensure it was fit for purpose.”

Appleby’s article, published in March last year, pointed out the problem that emerged in the Cullen case.

He noted that the legislation provides that the Supreme Court will issue arrest warrants, but that “courts have been reluctant to strip judges of their discretion, especially in cases where it might constitute an attack on the independence and integrity of judges.”

Bret Walker, SC, led a team acting on behalf of upper house speaker Ben Franklin, the president who would seek the arrest warrant in this case.

A spokesman for Franklin said: “We are currently reviewing the Court of Appeal’s decision in detail and will consider all options available to us.”

Walker and attorneys Thomas Wood and Frances Leitch said in their written statement that “judicial officers have long been engaged in issuing various types of arrest warrants, including using listening devices.” They urged the court to reject the constitutional attack on the law.

Cullen’s lawyers, Brendan Lim, SC and Jackson Wherrett, said in separate submissions that Cullen was called before the inquiry “to answer questions regarding the Prime Minister’s knowledge of the disclosure”. [of the draft minutes] and whether Mr Cullen was personally responsible for this disclosure”.

They argued that instead of acting independently when issuing a warrant for the arrest of an unwilling witness, the Supreme Court should “act as a cypher for the parliamentary official seeking the arrest warrant.”

“Therefore, the provisions are incompatible with the institutional integrity of the Supreme Court and are invalid.”

The investigation is examining how draft minutes were leaked to the media revealing that the Rosehill parliamentary committee was considering referring Minns to the Independent Commission Against Corruption. Ultimately, committee members decided to send the report itself to the corruption watchdog instead of the initial report.

ICAC decided not to pursue the matter. In a statement in December last year, it said the assessment panel “unanimously determined that the information provided did not indicate a reasonable possibility of corruption”.