Cullen v President of the Legislative Council of New South Wales
Medium Neutral Citation:
[2025] NSWCA 278
Hearing Date(s):
9, 10 December 2025; supplementary submissions 10, 12, 15 and 16 December 2025
Decision Date:
23 December 2025
Before:
Bell CJ; Leeming JA; Free JA
Decision:
1. Declare that ss 7, 8 and 9 of the Parliamentary Evidence Act 1901 (NSW) are invalid.
2. Otherwise dismiss the summons filed on 17 October 2025.
3. The President to pay the costs of Mr Cullen.
4. There be no order as to the costs of the Attorney General or the Speaker, with the intention that each intervener bear his own costs.
Catchwords:
CONSTITUTIONAL LAW – State legislative power – powers of Legislative Council to summon witnesses – Parliamentary Evidence Act 1901 (NSW) authorises President to certify that a witness has not complied with a summons without just cause or reasonable excuse – upon receiving such certification, Supreme Court judge required to issue warrant for detention of witness – warrant authorises holding witness in custody in accordance with subsequent orders of President – whether those provisions of Parliamentary Evidence Act contrary to limitations on State legislative power identified in Kable v Director of Public Prosecutions (NSW) – provisions held invalid
Garlett v Western Australia (2022) 277 CLR 1; [2022] HCA 30
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4
Ha v State of New South Wales (1997) 189 CLR 465; [1997] HCA 34
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
King v Jones (1972) 128 CLR 221; [1972] HCA 44
Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46
New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
Pantorno v The Queen (1989) 166 CLR 466; [1989] HCA 18
Powell v Powell (1948) 77 CLR 521; [1948] HCA 48
Prestcold (Central) Ltd v Minister of Labour [1969] 1 WLR 89
R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; [1956] HCA 10
Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27
South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39
Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24
Ward v Williams (1955) 92 CLR 496; [1955] HCA 4
Zhang v Commissioner of the Australian Federal Police (2021) 273 CLR 216; [2021] HCA 16
Texts Cited:
A Mason, “A New Perspective on Separation of Powers”, (1996) 82 Canberra Bulletin of Public Administration 1
S Frappell and D Blunt (eds), New South Wales Legislative Council Practice (Federation Press, 2nd ed, 2021)
S Want and J Moore, Annotated Standing Orders of the New South Wales Legislative Council (Federation Press, 2018)
Category:
Principal judgment
Parties:
James Cullen (Plaintiff)
President of the Legislative Council of New South Wales (Defendant)
Attorney General of New South Wales (intervening)
Speaker of the Legislative Assembly of New South Wales (intervening)
Representation:
Counsel:
B Lim SC, J Wherrett (Plaintiff)
B Walker SC, T Wood, F Leitch (Defendant)
C Lenehan SC, L Moretti (Attorney General of New South Wales)
J Gleeson SC, C Tran, P Banerjee (Speaker of the Legislative Assembly of New South Wales)
Solicitors:
Minter Ellison (Plaintiff)
Corrs Chambers Westgarth (Defendant)
Crown Solicitor’s Office (Attorney General of New South Wales)
Herbert Smith Freehills Kramer (Speaker of the Legislative Assembly of New South Wales)
File Number(s):
2025/00400236
Publication Restriction:
Nil
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 17 October 2025, Mr James Cullen brought proceedings in the Court of Appeal against the President of the Legislative Council of New South Wales, challenging the validity of ss 7-9 of the Parliamentary Evidence Act 1901 (NSW) because the President proposed to certify that Mr Cullen had failed to comply, without just cause or reasonable excuse, with a summons issued by the Privileges Committee of the Legislative Council. Both the Attorney General of New South Wales and the Speaker of the Legislative Assembly of New South Wales intervened.
Section 7 of the Parliamentary Evidence Act provides that where a witness refuses to attend and give evidence following a summons, the President or Speaker may certify the facts of that non-attendance under the President’s or Speaker’s hand and seal to a judge of the Supreme Court. Section 8 states that, upon such certificate, the judge shall issue a warrant for the apprehension of the person named in the certificate for the purpose of bringing the person to give evidence. Section 9 clarifies that the warrant and order are “sufficient authority” for all persons acting thereunder to apprehend the person and retain the person in custody pursuant to any order of the President or Speaker. Mr Cullen and the Attorney General argued that ss 7-9 of the Parliamentary Evidence Act are invalid because they contravene the limitation on State legislative power identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 by substantially impairing the institutional integrity of the Court.
The Court (Bell CJ, Leeming and Free JJA) held, making a declaration that ss 7-9 of the Parliamentary Evidence Act are invalid:
(1)
The function conferred on a judge under ss 7-9 of the Parliamentary Evidence Act does not permit any meaningful evaluative determination. On receipt of a certificate signed and sealed by the President or Speaker, the judge is obliged to issue a warrant for the person’s arrest and detention. None of the usual restrictions upon the exercise of arrest and detention are available. Whether the merits of that conferral are a “good thing” merely distracts from whether there is a substantial impairment of the independence and impartiality of the Court. The remote possibility that there may be an issue relating to forgery, affixing a seal, or as to who holds office as President or Speaker does not displace the fact that the judge is otherwise a mere functionary: [24], [56], [66]-[67].
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24, R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; [1956] HCA 10, Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 considered.
(2)
The warrant to be issued by the judge requires the Sheriff and all other law enforcement officers to obey all future written orders made by the President or Speaker. The result of this function is the lending of the Court’s authority to what is, in substance, the original and subsequent decisions of the President or Speaker for the indefinite detention of a person. In no other Australian jurisdiction is a judge involved in this function. Although many conferrals of administrative functions upon a judge would not contravene the limitations identified in Kable, the mandated detention of a person for an indefinite future would: [8], [31], [66], [68].
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24, Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24, applied.
(3)
Whether the power conferred on a judge under the Parliamentary Evidence Act is “persona designata” is not relevant where there is, in effect, a substantial impairment of the Court’s independence or impartiality. The question is one of substance over form, and the position adopted would be unaffected if the legislation were to confer the function on the judge in a personal capacity: [61]-[64].
Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24, Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24, Powell v Powell (1948) 77 CLR 521; [1948] HCA 48, Ha v State of New South Wales (1997) 189 CLR 465; [1997] HCA 34 applied.
JUDGMENT
1
THE COURT: The President of the Legislative Council, who is the defendant to this litigation, proposes to certify that the plaintiff, Mr James Cullen, has failed to comply, without just cause or reasonable excuse, with a summons issued by the Privileges Committee of the Legislative Council served upon him on 7 October 2025. Section 8 of the Parliamentary Evidence Act 1901 (NSW), if valid, requires a judge of the Supreme Court who receives such certification from the President to issue a warrant for the person’s apprehension and detention, for the purpose of bringing him or her to the House or relevant committee to give evidence.
2
Attempts at a consensual resolution having broken down, Mr Cullen commenced this proceeding by summons filed in the Court of Appeal on 17 October 2025, challenging the validity of ss 7-9 of the Parliamentary Evidence Act on constitutional grounds. Commencing in the Court of Appeal appears to have been contrary to s 48(1)(a) of the Supreme Court Act 1970 (NSW), but orders were made later that day, in light of the evident importance of the issue sought to be raised, regularising the hearing in this Court; cf Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177 at [4]. The parties and interveners have co-operated so as to achieve a highly expedited hearing, while also complying with s 78B of the Judiciary Act 1903 (Cth).
Overview of the legal issue
3
Mr Cullen claims that s 8 and related provisions are invalid because they contravene the limitation on State legislative power identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24. The particular inquiry by the Privileges Committee which has led to the summons being issued concerns ascertaining the identity of the person or persons responsible for the unauthorised disclosure of minutes of another committee’s inquiry. The subject matters of the inquiries by the Privileges Committee, or the other committee, are unimportant for the purposes of the primary argument advanced by Mr Cullen. So too are the facts that Mr Cullen is the Chief of Staff of the Premier of New South Wales and that the Privileges Committee has a minority of Government members. The issue is one of legislative power.
4
It may be accepted that it is desirable if indeed not essential, as was emphasised by Mr Walker on behalf of the President, that both parliamentary chambers have broad powers to call for persons to appear, if necessary by force, to assist them in carrying out their important functions, which include the accountability of government. However, New South Wales, uniquely in this country, has adopted a process for at least most of its committees of involving the Supreme Court when coercion is required. We shall explain below how that course was taken by an amendment in the Legislative Council to the bill which became the Parliamentary Evidence Act 1881 (NSW), which has remained in substance unaltered over the last 144 years. In no other Australian jurisdiction is a judge of any court involved. Instead, jurisdictions have enacted legislation which either confers power directly on the chamber or one of its members to compel attendance (examples are s 25 of the Parliament of Queensland Act 2001 (Qld), s 1 of the Parliamentary Privilege Act 1858 (Tas) and s 4 of the Parliamentary Privileges Act 1891 (WA)). Indeed that is the mechanism which was adopted in 1888 in New South Wales in relation to the Parliamentary Standing Committee on Public Works. At the Commonwealth level, after a House has found that conduct which amounts to an improper interference with the free exercise by a House or a committee of its authority or functions is an offence, then the House may impose “a penalty of imprisonment not exceeding 6 months” and may itself issue a warrant committing the person to custody: Parliamentary Privileges Act 1987 (Cth), ss 4, 7 and 9. Of course, obvious difficulties would confront legislation which interposed a federal court, given the principles concerning the separation of powers which operate at the federal level. The position is less constrained at the State level.
5
The main vice to which Mr Cullen pointed was that the function conferred by s 8 was mandatory and non-evaluative and involved in substance a “rubber stamp” upon the President’s decision to detain the person and require him to come before the House or a committee. It was common ground that the judge had no independent discretion to exercise once a certification which complied with s 7 had been received (as will be seen below, the parties and interveners correctly proceeded on that basis). The result is that, on receipt of a piece of paper containing certain statements, signed and sealed by the President, the judge is obliged, without more, to issue a warrant for the person’s arrest and detention. It is not open to contest the issue of the warrant on the basis that the President has the facts wrong, or is acting in bad faith, or to require the warrant to be executed in a particular way, or for the period of detention to be limited, say, to the period necessary in order for the purpose for which the summons was issued to be performed. None of the usual restrictions upon the exercise of powers of arrest and detention are available.
6
There is a second aspect as well, which was less prominent in the submissions but which to our minds is at least as significant. The warrant to be issued by the judge requires the Sheriff and all constables and other officers to obey all future written orders made by the President. It is best illustrated with an example, necessarily hypothetical, because the power seems never to have been used.
7
Suppose the President’s original certification was to the effect that the person had failed to appear before a committee on the previous day. The judge who receives the certification is required to issue a warrant requiring the Sheriff and other officers to detain the person, keep him or her in custody and make him or her available to that committee “to the intent that the person may from time to time be produced for the purpose of giving evidence”. In the first instance, it is to be expected that the President would make a further order for the person to be brought before the committee at some stage in the future, after he or she had been apprehended and detained in custody. It would be open to the President to order that the person be released, perhaps conditionally, in the meantime. However, it would also be open to the President to make no order other than that the person be produced at some nominated time and place, with the consequence that the person would remain in custody until then. The committee might ask questions of the person at that time, and have no further requirement for his or her attendance, with the result that the President will thereafter order his or her discharge from custody. However, it would also be open to the President to make further orders remanding the person in custody until some future hearing of the committee. The time period during which the President’s orders may cause the continuing detention of the person is in fact limited only by the duration of the particular Parliament. The Parliamentary Evidence Act proceeds on the basis that all of that detention is authorised by the warrant which the judge originally issued, even though what subsequently occurs is unknown and unknowable and might extend weeks or months or years. The President and Speaker maintained that although an application for habeas corpus could be made, it would be a sufficient answer to point to the original warrant and the subsequent orders made by the President, no aspect of which could be questioned or impeached by a court.
8
Some of the parties’ and interveners’ arguments are complicated, but to our minds the position is straightforward. There is a dispute whether the power is characterised as being conferred upon the Supreme Court, or upon a judge personally. We agree with Mr Cullen and the President that this is a distraction, because this is not a case at the margins. No judge of this Court can be obliged to issue a warrant commanding a person’s arrest and detention then and there, and thereafter in accordance with future orders made by the President, merely on the production of a piece of paper from the President. What matters is not the fact that a warrant is to be issued which will have a serious effect on a person’s liberty; judges and courts have long been involved in issuing warrants, including for the arrest of a person. What matters is that the function purportedly conferred is not subject to any meaningful evaluative determination by the judge, and instead imposes an obligation to issue a warrant that not only requires the immediate arrest and detention of a person, but also authorises and requires the Sheriff, police and other officers thereafter into the indefinite future to comply with all further written orders from the President. The lending of the authority of the Court, or of a judge of the Court, to what in substance is the original and subsequent decisions of the President for the indefinite detention of a person, is antithetical to the Court’s essential attributes of impartiality and independence which the Kable doctrine is directed to securing.
9
It was said and not without force that the function imposed by s 8 was administrative, not judicial, with the result that there could be no substantial impairment of the Court’s essential minimal characteristics under the Australian Constitution. We would agree that many and indeed most conferrals of administrative functions upon a judge would not contravene, or would not necessarily contravene, the limitations identified in Kable. But mandating the detention of a person for the indefinite future in accordance with the certification and subsequent orders of the President, under a warrant issued in the Court’s name and bearing familiar indicia of curial process, well and truly crosses the line. That conclusion is confirmed by the fact that the Community Protection Act 1994 (NSW) which was held invalid in Kable itself applied to a single named individual, and authorised his further detention, after a hearing in open court at which he could be fully heard, for one or more periods not exceeding six months. The present case is a fortiori.
10
It was not suggested that, in the event that the purported conferral of this function upon the Court or a judge of the Court was invalid, the provisions dealing with the President’s certification and the lawful authority thereby conferred were severable. Indeed, the provisions which now comprise ss 7-9 constituted a single sentence in s 5 of the 1881 Act. The result is that ss 7-9 of the Parliamentary Evidence Act 1901 (NSW) are invalid, and a declaration to that effect should issue.
The Parliamentary Evidence Act and its features
The salient provisions
11
Sections 4-9 of the Act provide as follows:
4 Witnesses how summoned
(1) Any person not being a Member of the Council or Assembly may be summoned to attend and give evidence before the Council or Assembly by notice of the order of the Council or Assembly signed by the Clerk of the Parliaments or Clerk of the Assembly, as the case may be, and personally served upon such person.
(2) Any such person may be summoned to attend and give evidence before a committee by an order of such committee signed by the Chair thereof and served as aforesaid.
5 Members of Parliament
The attendance of a Member of the Council or Assembly to give evidence before the Council or Assembly or a committee shall be procured in conformity (so far as practicable) with the mode of procedure observed in the British House of Commons.
[Section 6 deals with witnesses’ expenses]
7 Non-attendance of witness to be certified to a Judge If any witness so summoned fails to attend and give evidence in obedience to such notice or order, the President or the Speaker, as the case may be, upon being satisfied of the failure of such witness so to attend and that the witness’s non-attendance is without just cause or reasonable excuse, may certify such facts under the President’s or the Speaker’s hand and seal to a Judge of the Supreme Court, according to the form in Schedule 2, or to the like effect.
8 Issue of warrant
Upon such certificate any Judge of the said Court shall issue a warrant in the form in Schedule 3, or to the like effect, for the apprehension of the person named in such certificate, for the purpose of bringing the person before the Council, Assembly, or Committee to give evidence.
9 Warrant and order of President or Speaker to be sufficient authority for acts thereunder
(1) Such warrant shall be a sufficient authority for all persons acting thereunder to apprehend the person named in such warrant, and to retain the person in custody, to the intent that the person may from time to time be produced for the purpose of giving evidence, or be remanded and finally be discharged from custody, pursuant to any order under the hand and seal of the President or Speaker, as the case may be.
(2) Every such order shall be a sufficient warrant for all persons acting thereunder.
12
The warrant is to be in the form of Schedule 3 or to “like effect”. The warrant is to be headed “In the Supreme Court of New South Wales” and to be styled “In the matter of the Parliamentary Evidence Act 1901 and [the person’s name and address]”. It is to be addressed to the Sheriff and all deputies, constables and other officers, and is to require them forthwith to apprehend and detain the person in custody for the purpose of giving evidence. It is also to require the Sheriff, deputies, constables and other officers “to obey all further orders under the hand of the President” for the person’s remand or final discharge from custody. It is to be signed and sealed by the judge.
13
Section 10 authorises the administration of an oath or affirmation to a witness. Section 11 authorises the committal of a witness who refuses to answer “any lawful question” to the custody of the Usher of the Black Rod or the Serjeant-at-Arms, and if the House so orders, to gaol for a period not exceeding one month. Section 14, which was added in 1939, extended the operation of the statute to joint committees.
Background to the legislation
14
Sections 4-9 are substantially unaltered from the Parliamentary Evidence Act 1881, itself a belated response to the absence of power on the part of Mr Fenton, the Speaker of the Legislative Council of Van Diemen’s Land, to issue a warrant for the arrest of a person who had been summoned to give evidence but who had been found wilfully to have refused to do so in Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727. At the time of the events giving rise to Fenton v Hampton, there was no legislation conferring power on the Tasmanian Parliament, which was held to lack power to punish contempts committed outside its doors. The Tasmanian Parliament enacted the Parliamentary Privilege Act 1858 later that same year, authorising the President or Speaker to issue a warrant which by its own force authorised Sheriffs, constables and others to arrest and detain the person.
15
Unsuccessful attempts were made to enact similar legislation in New South Wales in 1856, 1878 and 1879. Legislation was enacted in 1881. The Bill as introduced in the Legislative Assembly made different provision in the event of non-compliance with a summons. Clause 5 provided:
Any witness so summoned who shall fail to attend and give evidence in obedience to the order served upon or transmitted to him shall be liable to the same penalty as he would be for disobedience of a subpoena issuing out of the Supreme Court. And such penalty may be proceeded for by the Attorney General upon the order of the said Council or Assembly (as the case may be) and shall when recovered by applied as a debt due to the Crown.
16
When the bill proceeded through the Legislative Council, cl 5 was replaced by a provision in substantially the same form as, relevantly, that now found in ss 7-9:
If any witness so summoned shall fail to attend and give evidence in obedience to the orders served upon him it shall be lawful for the President or the Speaker as the case may be upon being satisfied of the failure of such witness so to attend and that his non-attendance is without just cause or reasonable excuse to certify such facts under his hand and seal to a Judge of the Supreme Court according to the form in the First Schedule hereto or to the like effect And upon such certificate any such Judge shall issue his warrant for the apprehension of the person named in such certificate for the purpose of bringing him before the Council Assembly or Committee to give evidence And such warrant shall be in the form in the Second Schedule hereto or to the like effect and shall be a sufficient authority for all persons acting thereunder to apprehend the person named in such warrant and to retain him in custody to the intent that he may from time to time be produced for the purpose of giving evidence or be remanded and finally be discharged from custody pursuant to any order under the hand and seal of the President or Speaker as the case may be And every such order shall be a sufficient warrant for all persons acting thereunder. [absence of punctuation as per original Act].
17
In taking that course, the New South Wales Parliament departed from the precedent found in the Electoral Act 1880 (NSW), which made provision for a “Committee of Elections and Qualifications” with power to summon witnesses, and provided in s 74 that the committee had power to summon witnesses who, if they did not appear, were guilty of a misdemeanour and liable accordingly (this was largely replicated in s 140 of the Parliamentary Electorates and Elections Act 1893 (NSW)).
18
Similarly, the chairman and vice-chairman of the joint committee known as the Parliamentary Standing Committee on Public Works, established by s 3 of the Public Works Act 1888 (NSW), were empowered to issue a warrant for the detention of a person who failed to appear without just cause or reasonable excuse after having been served with a summons: see s 10. This was consolidated as s 17(2) of the Public Works Act 1900 (NSW) and continues in force to this day as s 22(2) of the Public Works and Procurement Act 1912 (NSW). (The Court was told that that committee has not functioned for some decades, coinciding with an amendment which expanded the operation of the Parliamentary Evidence Act to joint committees; it is unnecessary to consider that point any further.)
19
The parties were agreed that, so far as they were aware, no application had ever been made for a warrant under s 8. That is consistent with statements in S Frappell and D Blunt (eds), New South Wales Legislative Council Practice (Federation Press, 2nd ed, 2021) p 801 and S Want and J Moore, Annotated Standing Orders of the New South Wales Legislative Council (Federation Press, 2018) p 686.
Operation of the provisions
20
In any challenge to the validity of legislation based on the limitation identified in Kable, the starting point is a careful analysis of the impugned statutory regime.
21
Section 7. Section 7 requires the President or Speaker to be satisfied not only that the person has failed to comply with the summons, but also that he or she lacks just cause or reasonable excuse. If satisfied of all those things, s 7 confers a discretionary power to issue a certificate. Argument proceeded on the basis that the decision-making process, up to and including any ultimate certification by the Speaker, are all “proceedings in Parliament” for the purposes of Article 9 of the Bill of Rights, which is in force in New South Wales by virtue of the Imperial Acts Application Act 1969 (NSW), s 6, Second Schedule, Part 1: Egan v Willis (1998) 195 CLR 424; [1998] HCA 71 at [24].
22
The certificate is to be issued “under the President’s or Speaker’s hand and seal”. Likewise, the warrant is required, by the form in Schedule 3, to be under the hand and seal of the judge. The words “and seal” are not surplusage, although they reflect the antiquity of the provision. As the Speaker submitted, those traditional words involve an additional formal act by both the President or Speaker and by the judge. Windeyer J explained in Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 at 42-43; [1971] HCA 13 that it may be wax or a wafer or a rubber stamp or any other impression put on as a seal, but it “must be something affixed or added to the document as an incident of its being issued”. Windeyer J explained:
The requirement that the summons be under seal may today seem to be purposeless subservience to an archaic formality. But it is not for a justice of the peace to disregard the express command of Parliament; and, however unimportant the presence of a seal may seem, a lack of it means that a summons does not satisfy the statutory requirement … [W]hen a justice has to affix his seal to an instrument he is likely to be thereby made aware that what he is doing is exercising his own authority, in a matter of moment, doing something himself as a result of the exercise of his personal discretion. It is this that makes the provisions of s 62 more than the prescription of an idle formality.
23
Section 8. Section 8 imposes a duty upon any judge of the Supreme Court who receives such a certification. The parties and interveners for the most part proceeded on the common basis that the Supreme Court judge to whom the President’s certification was presented was bound to issue a warrant. This Court is not bound by their common approach: Pantorno v The Queen (1989) 166 CLR 466 at 473; [1989] HCA 18. Indeed, courts should be wary in such cases, as was noted in a similar context in Zhang v Commissioner of the Australian Federal Police (2021) 273 CLR 216; [2021] HCA 16 at [26]-[27], because it may suit some or all parties to adopt a construction of the legislation which advances their forensic goals. But in the present case, the parties’ common approach is correct, for these reasons:
(1)
First, s 8 provides that “[u]pon such certificate any Judge of the said Court shall issue a warrant …”. The words “shall issue” contrast with the discretionary power conferred on the President and Speaker in the previous section (“may certify”).
(2)
Secondly, the word “shall” invokes the rule of construction stated in s 8 of the Acts Shortening Act 1858 (NSW) (which was in force in 1881), and equivalent provisions subsequently found in s 23 of the Interpretation Act 1897 (NSW) (which was in force in 1901) and s 9 of the current Interpretation Act 1987 (NSW), namely, that the power “must be exercised on demand”, as it was put in Ward v Williams (1955) 92 CLR 496 at 506; [1955] HCA 4.
(3)
Thirdly, the words “shall issue” do not stand alone. They follow the words “Upon such certificate”. The elliptical language is that of an earlier time, but to our minds the preposition “upon” serves to confirm the absence of any separate consideration by the judge.
(4)
Fourthly, the form of the warrant prescribed by the Schedule commences “WHEREAS it hath this day been certified …” (emphasis added). Thus the assumption made by the drafter was that the warrant will issue on the same day the President certifies.
(5)
Finally, it is difficult to see why express provision should have been made in s 7 for the President’s being satisfied of the failure to comply and the absence of just cause or reasonable excuse, but no equivalent provision in s 8 if indeed a separate discretion were conferred upon the issuing of a warrant as well as the certification by the President.
24
We are unable to conclude that there is any available constructional choice whereby the words “[u]pon such certificate any Judge of the said Court shall issue a warrant” confer a discretion as opposed to imposing an obligation on the judge asked to issue the warrant.
25
Section 9. Section 9 is more complex than it may at first appear. The opening words (“Such warrant”) refer to the warrant to be issued by the judge pursuant to s 8, which was clearer when it was part of a very long sentence in s 5 of the 1881 Act which was divided in the 1901 consolidation into three sections. Further difficulties arise (a) because the drafter has used “warrant” in two separate senses, (b) because of the significance to be attributed to the difference between the judge’s warrant and the President’s subsequent order, and (c) because the section provides that the judge’s warrant and the President’s subsequent order shall each authorise conduct which would otherwise be tortious by the Sheriff and others acting pursuant to them.
26
It is necessary to bear steadily in mind that ss 8 and 9 proceed on the basis that the judge signs and seals the warrant while the President signs and seals an order.
27
Subsection 9(1) provides that the judge’s warrant lawfully authorises the Sheriff and others acting pursuant to it to apprehend the person and retain him or her in custody. The subsection goes further and proceeds on the basis that there may be further orders under the hand and seal of the President for the production of the person from time to time to give evidence, or to be remanded in the meantime, until finally he or she is released. Subsection (1) provides that the judge’s warrant is a sufficient authority for persons acting under all of those subsequent orders. That is consistent for the most part with the form of the warrant, which requires the Sheriff and others “to obey all further order under the hand of the [President or Speaker]” (there is an inconsistency between the requirement in s 9 for subsequent orders to be under the President’s hand and seal, and the statement in the form that subsequent orders be under the President’s hand, but nothing turns on this for present purposes). The point that matters is that the judge’s warrant authorises the President’s orders in the future, whatever they be. Those orders will include, it is to be expected, orders for the person to appear at a nominated time and place to give evidence. They may also include subsequent orders extending the person’s detention in custody for an unknown period of time, until his or her ultimate release. The words “the person may from time to time be produced for the purpose of giving evidence” expressly contemplate subsequent orders by the President extending the detention in custody of the person for an unknown period of time.
28
Further, and perhaps reflecting a concern about the sufficiency of the authority given by a judge’s warrant in respect of orders not yet made by the President, s 9(2) separately provides that the subsequent orders made by the President “shall be a sufficient warrant for all persons acting thereunder”. There is a weak principle of construction that where different words are used a change of meaning is intended (cf King v Jones (1972) 128 CLR 221 at 266; [1972] HCA 44), for the “habit of a legal draftsman is to eschew synonyms”, as Lord Diplock said in Prestcold (Central) Ltd v Minister of Labour [1969] 1 WLR 89 at 97. However, so far as we can see, there is no legal difference between the words “sufficient authority” in s 9(1) and “sufficient warrant” in s 9(2): both confer a defence of lawful authority to conduct which would otherwise be tortious.
29
The form of certificate and warrant. The Schedules to the Act prescribe the form to be taken by the President’s certification and the judge’s warrant. Both are to be titled “In the matter of the ‘Parliamentary Evidence Act 1901’ and [the person]”, thereby invoking the style of ordinary litigation in this Court (see Supreme Court (Corporations) Rules 1999 (NSW), r 2.1 and Form 1 within Schedule 1). The warrant is to be headed “In the Supreme Court of New South Wales”. The judge’s signature and seal are to be followed by the words “A Judge of the Supreme Court of New South Wales”. We shall return to these matters when addressing the submissions on whether the power is conferred on the judge personally or as a member of the Court.
30
Section 11. Section 11 authorises the committal of a person who refuses to answer a lawful question, in the first instance into the custody of the Usher of the Black Rod or the Serjeant-at-Arms, and thereafter, if the chamber so orders, to gaol for up to one calendar month. Section 11 may be compared and contrasted with ss 7-9. Both sets of provisions produce the result that a person is deprived of his or her liberty. Both sets of provisions authorise the application of physical force upon a person. In both cases, the operative decision which causes the deprivation of liberty and authorises the application of physical force is the decision of one of the parliamentary chambers or an officer of the chamber. However, a non-discretionary warrant to be signed and sealed by a judge of the Supreme Court is interposed under ss 7-9 but not under s 11.
31
Summary. The warrant which a judge must sign and seal upon being presented with certification from the President (or Speaker) is one which authorises and requires the Sheriff, police constables and other officers to arrest and detain the named person. It requires the Sheriff and all other law enforcement officers to apprehend the person and retain him or her into custody. It also requires obedience to all future orders given by the President (or Speaker) whatever they may be, to the intent that the person may from time to time be produced for the purpose of giving evidence. This is not merely enlisting the Court or a judge to detain a person so as to be brought before the House or a committee. This is enlisting the Court or a judge to authorise into the indefinite future (limited only by the term of the Parliament) the orders made by the President.
The limitation on legislative power identified in Kable
32
State legislative power is necessarily subject to the express and implied limitations in the Commonwealth Constitution: New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [15]. The presently relevant implied limitation, first identified in Mr Kable’s earlier appeal upheld by the High Court in 1996, flows from Chapter III of the Commonwealth Constitution. Chapter III proceeds on the basis that there will be “Supreme Courts” and other “courts of a State” in which federal jurisdiction may be invested. Those courts must satisfy certain minimum prerequisites, and legislation which causes any of those courts not to satisfy those prerequisites will be invalid.
33
The criteria which engage the limitation on State legislative power identified in Kable are necessarily expressed at a high level of abstraction and generality. That carries with it an important evaluative task of characterising the effect of the legislation in question in any given case. In Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7, it was said by reference to “institutional integrity” at [124] that it was “a notion not readily susceptible of definition in terms which will dictate future outcomes”.
34
For present purposes, it is sufficient to refer to what is regularly described as those courts satisfying “minimum requirements of independence and impartiality”. In Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13 at [44], French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said:
Since Kable, it has been stated often that a court must satisfy minimum requirements of independence and impartiality, even though it is not possible to make a single statement embracing all of the defining characteristics of a court. (footnotes omitted)
35
Kable and the subsequent line of decisions establish that a State law which sufficiently impairs a State court’s minimum requirements of independence and impartiality will be invalid. In Kable itself, a law which authorised the Director of Public Prosecutions to apply to the Supreme Court to commit Mr Kable to further imprisonment after the conclusion of his sentence for the manslaughter of his wife was held invalid on this basis. That finding was made notwithstanding that such an order could be made only in respect of Mr Kable and no other person, and only after a hearing at which evidence would be adduced and tested by Mr Kable or his legal representative and at which full submissions would be made, and notwithstanding that the duration of the order was limited to 6 months.
36
Some statements in earlier decisions considering the Kable principle focussed upon a diminution in public confidence in the Courts. However, it has become clear, as explained by Gummow J in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 at [102], that “[p]erception as to the undermining of public confidence is an indicator, but not the touchstone, of invalidity; the touchstone concerns institutional integrity”.
37
In the most recent decision of the High Court considering the Kable limitation upon legislative power, Garlett v Western Australia (2022) 277 CLR 1; [2022] HCA 30, Kiefel CJ, Keane and Steward JJ observed at [95] that in each of South Australia v Totani (2010) 242 CLR 1; [2010] HCA 39 and Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24, “the flaw in the legislation lay in the co-opting of the courts by the executive to implement decisions of the executive”. Of course, the Parliamentary Evidence Act does not affect the Court’s independence from the executive. But it must not be thought that independence from the Executive Government exhausts the limitation of legislative power in Kable. The essential attributes of State courts which are the foundation of the Kable limitation upon legislative power, namely, impartiality and independence, extend to impartiality and independence from other institutions, including the chambers of the New South Wales Parliament. Independence and impartiality are not attributes which only relate to a particular branch of government.
38
Consistently with this, the joint judgment in Emmerson encapsulated the underlying principle in terms not confined to independence from the Executive Government at [40]-[41]:
The principle for which Kable stands is that because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court’s institutional integrity, and which is therefore incompatible with that court’s role as a repository of federal jurisdiction, is constitutionally invalid. In Mistretta v United States, the fundamental nature of judicial independence and the relationship between institutional integrity and impartiality were identified by the Supreme Court of the United States:
“The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action.”
Ultimately the inquiry in respect of a function or process bestowed upon, or required of, a court was “whether [it] undermines the integrity of the Judicial Branch.” (footnotes omitted)
39
The same point was made by Hayne, Crennan, Kiefel and Bell JJ in Assistant Commissioner Condon v Pompano Pty Ltd at [125]:
Independence and impartiality are defining characteristics of all of the courts of the Australian judicial system. They are notions that connote separation from the other branches of government, at least in the sense that the State courts must be and remain free from external influence. In particular, the courts cannot be required to act at the dictation of the Executive. (footnotes omitted, emphasis added)
40
In Garlett, Kiefel CJ, Keane and Steward JJ emphasised the element of curial judgment involved in determining whether the risk that an offender will commit a “serious offence” was “unacceptable”, and whether a restriction order was “necessary” to protect against that risk. Their Honours said at [73]:
Whether or not a risk that an offender will commit a “serious offence” is “unacceptable” is a question which requires the Court’s judgment as to the nature and extent of the harm said to be in prospect. Further, whether a restriction order is “necessary” to protect against that risk requires recognition of what would otherwise be the offender’s entitlement to be at liberty, an entitlement not lightly to be denied. The Court must consider whether a restriction order is necessary to ensure adequate protection of the community. The Court is required to perform this evaluative exercise and come to its own determination as to whether to make a restriction order; it does not automatically follow from the inclusion of an offence in Sch 1 that a restriction order must be made. (footnotes omitted)
41
These decisions reflect a distinction which has been drawn in this area. The distinction is between the general proposition that a State law that “purports to direct the courts as to the manner and outcome of the exercise of their jurisdiction is apt impermissibly to impair the character of the courts as independent and impartial tribunals”, while a law “which confers upon a court a power with a duty to exercise it if the court decides that the conditions attached to the power are met” is not “on that ground alone” to be “classified as a legislative attempt to direct the outcome of the exercise of jurisdiction”. The former was accepted as a general proposition in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 at [39] (Gummow, Hayne, Heydon and Kiefel JJ). The qualification or exception from that general proposition may be seen in South Australia v Totani at [132]-[133], and see also at [71], [428]-[431] and [481]. In Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46 at [240], Crennan, Kiefel, Gageler and Keane JJ explained that it was long established that a law may “regulate the incidence of the burden of proof of matters on which questions of substantive rights and liabilities depend”, and that “[l]aws which do no more than effect such changes do not ‘deal directly with ultimate issues of guilt or innocence’”. In Totani at [71], French CJ framed the distinction thus:
It has been accepted by this Court that the Parliament of the Commonwealth may pass a law which requires a court exercising federal jurisdiction to make specified orders if some conditions are met even if satisfaction of such conditions depends upon a decision or decisions of the executive government or one of its authorities. The Parliament of a State may enact a law of a similar kind in relation to the exercise of jurisdiction under State law. It is also the case that “in general, a legislature can select whatever factum it wishes as the ‘trigger’ of a particular legislative consequence”. But these powers in both the Commonwealth and the State spheres are subject to the qualification that they will not authorise a law which subjects a court in reality or appearance to direction from the executive as to the content of judicial decisions. (footnotes omitted)
42
The submissions in this Court emphasised the lack of independent decision-making on the part of the judge who receives the certification from the President or Speaker. Irrespective of whether the function is regarded as conferred upon the Court or its judges in their personal capacity, that is antithetical to this Court’s constitutionally-mandated role as an independent and impartial body, and in a substantial way.
43
Finally, because the question is practical, it is relevant to ask whether there was any alternative to the approach taken by the Parliamentary Evidence Act. This was explained in Wainohu at [107]:
[T]he immediate question is whether s 13(2) displays in its practical operation within the scheme of the Act repugnancy to or incompatibility with the institutional integrity of the Supreme Court. Such questions, as Gleeson CJ emphasised in North Australian Aboriginal Legal Aid Service Inc v Bradley, do not arise in the abstract; they present concrete, practical issues, resolution of which may be assisted by regard to what other course was available to the legislature. (footnote omitted)
44
The New South Wales Legislature in 1881 departed from the example which had been enacted as s 74 of the Electoral Act 1880 the previous year, and from the legislation enacted in 1858 by Tasmania in the immediate aftermath of Fenton v Hampton. By 1901, it departed from its own precedent in s 10 of the Public Works Act 1888 and the Western Australian legislation of 1891. The approach adopted in New South Wales is unique in this country, and is an outlier insofar as it enlists the Court (a matter confirmed by the supplementary notes supplied to the Court). Other approaches, which do not involve a judge of the Supreme Court, were and are available. These considerations favour the conclusion of invalidity.
The submissions advanced by the President and the Speaker
45
We now turn to the various ways in which the President and the Speaker sought to avoid that conclusion.
46
The President’s submissions embraced and sought to make a virtue of the features of the legislation which Mr Cullen had deprecated. The President acknowledged that the effect of a judge issuing a warrant had the most severe impact upon the rights of an individual. He said that the starting point was Article 9 of the Bill of Rights, that each chamber needed a coercive power to require witnesses to attend, and that bearing in mind all of those basal aspects of the constitutional arrangements in this State, there was no basis for a substantial diminution, or the appearance of a substantial diminution, of the institutional independence and impartiality of the Supreme Court.
47
By way of elaboration of that submission, the President emphasised that (a) the principle in Kable should not be construed over-zealously, (b) it was a good thing that before a warrant should issue that a judge should confirm that the formal paperwork had been completed by the President, (c) the absence of any adjudicative function on the part of the judge was a necessary consequence of the doctrines associated with Article 9 of the Bill of Rights, (d) the fact that the judge had no independent discretion in relation to this very specialised function could not lead any reasonably informed member of the public to think that the judge or his or her court had lost its independence or integrity, or that in fact there were any diminution in independence or integrity, and (e) a fortiori there was no substantial diminution of independence or integrity.
48
The President deprecated the various metaphors which tended to be used in such cases, including “cypher”, “rubber stamp”, “cat’s paw”, “charade” and “cloak”, because “as figurative language they distract from the question”. He maintained that “there’s nothing here about any sinister or cynical or dissimulated pretence that something is not as it truly is”.
49
The Speaker added to those submissions points that the power was conferred on judges personally, rather than upon the Court, which further tended against an impermissible diminution of institutional independence and impartiality, and that none of the four cases where the Kable doctrine had been successfully invoked to invalidate legislation was closely comparable to the present, which involved the conferral of an administrative function upon a judge, pursuant to a statutory regime which pre-dated Federation and which was preserved upon Federation.
50
All these submissions were advanced attractively and persuasively. They embraced the vices to which Mr Cullen had drawn attention and styled them virtues. But we do not accept them.
51
The short answer to the President’s main submission is that its premise is unsound. The starting point is not Article 9 of the Bill of Rights, which is a provision that could be amended or repealed or (as occurred in Arena v Nader (1997) 42 NSWLR 427) waived, and which in other Australian jurisdictions has been superseded by legislation. (It is unnecessary and therefore inappropriate to enter into the question whether Article 9 is part of the New South Wales Constitution, thereby entrenched pursuant to ss 7A and 7B of the Constitution Act 1902 (NSW).)
52
Instead, the starting point is the Australian Constitution. After 1901, because State courts could be invested with federal jurisdiction to quell matters arising under Chapter III, the legislative power of the New South Wales Legislature became limited in ways that it had not formerly been. There arose for the first time a class of functions that could not validly be conferred upon the Court or judges of the Court. The function of perfunctorily issuing a warrant for the immediate detention into custody and subsequent detention until the President of the Legislative Council ordered release on the receipt of a piece of paper signed by the President is such a function. It is antithetical to this Court’s impartiality and, especially, its independence.
53
We agree with the President that ascribing a pejorative label to the legislation, such as “cloak” or “rubber stamp”, may distract from the legal analysis involved in a case. Metaphors should be used carefully in legal argument, and should not be treated as a substitute for analysis or a statement of the governing constitutional principle. But the submissions advanced on behalf of the President disclose a similar flaw, for it was submitted:
[W]e don’t shrink from saying that the Court ought to start with the proposition it is a good thing that such function be facilitated, not a neutral thing. Your Honours are not looking at just any old law. You are looking at a really important part of parliamentary democracy with responsible government, and an organ constitutionally at the highest level of the organisation of the polity. So you ought view with considerable reserve proposals which would require less than optimal approaches to that facilitation by way of valid legislation.
54
However, the fact that the legislation is, or at least may be viewed by some, as a “good thing” likewise distracts from the issue. Many people regarded the legislation held invalid in the Boilermakers’ case (R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; [1956] HCA 10) or in the cross-vesting case (Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27) as desirable, just as (to return to the particular limitation on State legislation power deriving from Chapter III which is presently relevant) many may regard legislation which deals proactively with organised crime and the release of offenders who continue to pose a risk to the community as a “good thing”. In short, the merits of the Parliamentary Evidence Act are just as much a distraction from the legal issue as attempts to stigmatise it by metaphor. The only issue is whether its practical operation sufficiently diminishes the requirements of independence and impartiality of the Supreme Court so as to run foul of what is required by the Commonwealth Constitution, as explained in Kable.
55
Confronting the point that the warrant required obedience to all future orders made by the President, the President submitted that the Court’s involvement being confined to the outset, when the person to whom the summons had been directed was at liberty, and not subsequently after he or she was in the custody of the chamber, was a virtue, and could not result in any diminution in the independence or integrity of the Court. His point was that once the warrant had been executed and the person was within the control of the chamber, then it was appropriate that the parliamentary organs alone determine the person’s continuation in custody or release. “The fact that there is no court involved in that stage of custody, as it is, we accept after being brought to the parliamentary precinct can only be, with respect, a good thing. It is absolutely not for judges to determine, for example, whether somebody is likely to be more willing to be cooperative if they were brought back to give evidence in two hours after a session”.
56
We do not agree. We reiterate that whether or not the mechanism selected in the Parliamentary Evidence Act is a “good thing” is not to the point. It is a more substantial impairment of independence and impartiality for a judge to authorise not only the short term detention and bringing before a House or a committee of a person, but also to authorise, then and there, all future orders to be made by the President, potentially months or even years into the future, until the prorogation or perhaps dissolution of the parliament. It is to be borne in mind that a person who disregards the summons issued by the House or its committee may have strongly held views, rightly or wrongly, about the appropriateness of answering questions, and the possibility of subsequent orders requiring that person’s detention over ensuing days or weeks is far from fanciful.
57
The Speaker intervened primarily to advance a submission that the function was conferred on the judge in his or her personal capacity, rather than as a member of the Court. The point of the submission was to dilute the force of the submissions that the legislation substantially impaired the institutional integrity of the Court. As Mr Cullen rightly observed, substantially the same submission had earlier been advanced in Wainohu v New South Wales. Queen’s Counsel appearing for Victoria is recorded as submitting that “[t]he conferral on an eligible judge as persona designata of the function of declaring organisations to be declared organisations cannot raise the incompatibility arguments upon which [Kable] was founded” at CLR 189. In response, French CJ is recorded as saying in argument (at CLR 190):
If essential characteristics of courts, including State courts, are independence, impartiality, openness, fairness and so forth, cannot you imagine the persona designata appointment of judges serving on such courts that might reflect upon and compromise one or more of those characteristics?
58
That response was reflected in what was said by French CJ and Kiefel J in Wainohu at [50]:
A legislatively prescribed detachment of a State judge from his or her court when performing a non-judicial function may weigh in the balance against a finding of impairment of the institutional integrity of the court. Such a detachment may make it less likely that the exercise of the non-judicial function undermines the reality or the appearance of the court as an institution independent of the executive government of the State. But so long as that function is conferred upon the judge by virtue of his or her office as a judge, the distinction is difficult to grasp and the fact that the function is conferred persona designata should not be given great weight. It would generally not be determinative of the question of compatibility. (footnote omitted)
59
The remaining members of the majority did not address the submission in terms, but their Honours certainly did not embrace it, and the High Court’s order is inconsistent with its acceptance.
60
Earlier, in Kable itself, McHugh J at 117-118 had addressed the same point (as French CJ and Kiefel J observed at [48]):
[A]lthough nothing in Ch III prevents a State from conferring executive government functions on a State court judge as persona designata, if the appointment of a judge as persona designata gave the appearance that the court as an institution was not independent of the executive government of the State, it would be invalid. No doubt there are few appointments of a judge as persona designata in the State sphere that could give rise to the conclusion that the court of which the judge was a member was not independent of the executive government.
61
We respectfully agree. We do not accept that the limitation in Kable may be outflanked by the device of conferring the power or function upon a judge “persona designata” and thereby concluding, as if by the effect of a Latin incantation, that the diminution in the independence and impartiality of the court vanishes. Sir Anthony Mason was (characteristically) understated when he deprecated submissions of this kind as having “a distinctly artificial flavour” which “would have appealed to mediaeval schoolmen”: A Mason, “A New Perspective on Separation of Powers”, (1996) 82 Canberra Bulletin of Public Administration 1 at 5, reproduced and approved in Wainohu at [49]. The label “persona designata” is a distraction, and the President was right to distance himself from the submission. In Powell v Powell (1948) 77 CLR 521 at 538; [1948] HCA 48 Dixon J observed that “[t]o turn the words into Latin may distract attention from the difficulty but it will not avoid it”. Either the practical operation of the statute is a substantial impairment of the State court’s independence or impartiality or it is not. If it is, then the law is invalid, and it is entirely irrelevant if the law amounts to the conferral of a function “persona designata”.
62
For completeness, we would add that we favour the view that the function is best regarded as conferred upon the Court, as a matter of construction of the Act. There are arguments pointing in both directions. Some are quite involved, turning on the history of ss 24, 48 and 101 of the Supreme Court Act, and may be significant in some other case, because the consequences include the availability of rights of appeal. We favour the approach that what matters most for present purposes is what appears on the President’s certification and the warrant which is signed and sealed by the judge. Both refer, repeatedly and unambiguously, to “the Supreme Court of New South Wales”.
63
However, we are firmly of the view that it does not matter, because the question is whether conferring such functions on the judges who comprise the Court contravenes the implied limitation on legislative power deriving from the Commonwealth Constitution, and that falls to be determined as a matter of substance rather than form. The position is no different from any other constitutional limitation upon power. The majority in Ha v State of New South Wales (1997) 189 CLR 465 at 498; [1997] HCA 34 said:
When a constitutional limitation or restriction on power is relied on to invalidate a law, the effect of the law in and upon the facts and circumstances to which it relates - its practical operation - must be examined as well as its terms in order to ensure that the limitation or restriction is not circumvented by mere drafting devices.
64
Thus the position would be unaffected if the legislation were amended to contain a provision “for the avoidance of doubt, the function of issuing a warrant is conferred on the judge of the Supreme Court in his or her personal capacity”. Drafting devices do not defeat constitutional limitations upon legislative power.
65
In the alternative, the Speaker submitted (departing from the approach taken by the President) that the judge had a real discretion to exercise, and was not merely a “rubber stamp”. The Speaker emphasised that the judge was required to consider (a) whether the certificate stated the matters in s 7, (b) whether it was signed and sealed by the President and was not a forgery, and (c) whether at the time the President in fact held that office. The submission was that to the extent that an evaluative function was necessary, those matters satisfied it, even though in many or most cases it would be straightforward for the judge to be satisfied of them.
66
But this alternative submission also founders on the proposition that whether or not ss 7-9 contravene the limitation on legislative power identified in Kable is a matter of substance rather than form. It is necessary to consider the practical operation of the statute. The remote possibility that there may be a real issue as to forgery, or the affixing of a seal, or as to who holds office as President, verges upon a theoretical construct devised for the sake of argument. As a matter of substance and reality, in a case where an application is made for the issue of a warrant, the judge would be a mere functionary and have no choice but to sign and seal the warrant. Moreover, the submission does not address the second aspect of what is authorised by the judge’s warrant, namely, the indefinite detention of the person pursuant to subsequent orders of the President, whose content and extent could not even be known at the time the judge became obliged to sign the warrant.
67
Once the true character of the judge’s role in the statutory scheme is appreciated, so too is the constitutional vice. The Speaker submitted that the Parliamentary Evidence Act reflected a legislative judgment that in circumstances where a warrant entails interference with liberty it was a good thing that a judge as an independent officer (albeit not acting in a judicial capacity) be involved. That was said to reflect an appreciation, informed by the historical role of judicial officers in issuing warrants, of the benefits of involving a person with the qualities of independence, impartiality and fair-mindedness which have qualified them for that office. However, the Parliamentary Evidence Act neither requires nor permits the relevant judge to bring any such qualities of independence, impartiality and fair-mindedness to bear on a meaningful decision-making process. Instead the regime draws upon the perception of those qualities so as to lend an appearance of judicial authority to a decision which has in substance already been made by the President. To exploit the reputation for independence in this way, without the actuality of independence, is to impair the institutional integrity of the Court substantially.
68
The President and the Speaker contended that none of the other cases in which legislation had been held invalid on the basis of Kable were closely comparable to the Parliamentary Evidence Act. That may be so, but is not to the point. It may be accepted that ss 7-9 of the Act are distinguishable from other instances where the High Court has held legislation invalid based on Kable. That is no answer to the proposition that the provisions are beyond power. Nor did the President or the Speaker point to any authority holding that legislation which required a judge of the Supreme Court to issue a warrant requiring the immediate and continuing detention of a person, into the indefinite future in accordance with written orders by another person, did not contravene Kable. The absence of authority one way or the other illustrates only that the dispute is to be resolved by principle, rather than analogy with some earlier case. Further, the absence of authority is unsurprising, since (so far as the parties’ and our own researches disclose) the power has lain unexercised for 144 years, and no other jurisdiction has enacted legislation resembling ss 7-9.
69
Insofar as reliance was placed on the need for the diminution of independence and impartiality to be “substantial”, that is satisfied, once it is seen that the Civil Protection Act 1994 (NSW) pursuant to which Mr Kable was detained applied to precisely one person, while detention under the Parliamentary Evidence Act applies to any person save a Member of Parliament, and requires the judge to authorise that person’s detention not merely for the immediate purpose of bringing the person before the House or a committee, but also for that person’s subsequent detention thereafter pursuant to any written order by the President. The requirement of substantiality connotes a qualitative, not quantitative, assessment. The fact that that the powers of a parliamentary chamber may be said to be a “special case” does not detract from the proposition that the diminution of independence and impartiality is substantial.
70
It was observed, correctly, by the Speaker, that “[n]o case has struck down a power or function which existed prior to Federation”. But that cannot be determinative. True it is that the 1881 Act could not have been held invalid in accordance with the principles identified in Kable prior to 1901. But the position altered after 1901, when, as Gageler J emphasised, “everything adjusted”: Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 at [72] and [112].
71
The result is that there is, at present, no valid coercive power to compel attendance before a chamber or committee of the New South Wales Parliament, save for that conferred on the Chairman or Vice-Chairman of the Parliamentary Standing Committee on Public Works by s 22(2) of the Public Works and Procurement Act 1912 (NSW). But the failure to enact a comprehensive law concerning the privileges of Parliament (indeed, including requiring the production of documents which to this day proceeds on the implication of reasonable necessity identified in Egan v Willis and Egan v Chadwick (1999) 46 NSWLR 563; [1999] NSWCA 176) is familiar. Indeed, it is the subject of a pending inquiry before the Privileges Committee (referred by the Legislative Council on 20 September 2023), which is explicitly directed to “identifying amendments to ensure [the Parliamentary Evidence Act] is fit for purpose and modernised, including in relation to the summoning of witnesses”. The Court was told that aside from obtaining a report from a well-qualified academic, nothing had been done to advance that reference. The expedition with which that committee will address the referral is of course entirely a matter for it and the referring House. However, that inquiry may result in legislation which will bring the position in New South Wales in line with all other Australian jurisdictions, thus achieving what Mr Walker referred to in his submissions as the desirable outcome of facilitating the Council’s ability to perform its accountability function.
Conclusion and orders
72
For these reasons, we have concluded that Mr Cullen is correct in his primary contention that ss 7-9 are invalid. Declaratory relief should issue. Mr Cullen advanced secondary, alternative submissions, which occupied very little time in a hearing which would always have extended into a second day. In those circumstances, there is no reason to depart from the rule that Mr Cullen’s costs should follow the event. The interventions of the Attorney General and the Speaker were valuable, but each intervener should bear his own costs.
73
The Court’s orders are:
1. Declare that ss 7, 8 and 9 of the Parliamentary Evidence Act 1901 (NSW) are invalid.
2. Otherwise dismiss the summons filed on 17 October 2025.
3. The President to pay the costs of Mr Cullen.
4. There be no order as to the costs of the Attorney General or the Speaker, with the intention that each intervener bear his own costs.
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Amendments
23 December 2025 - [39] - underlining of "emphasis added" deleted
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