The chief of staff to the New South Wales premier has argued a court should not be able to compel him to give evidence before a parliamentary inquiry because it could politicise the justice system.
The court’s power to issue a warrant for someone’s arrest if they defied a state government summons could become “highly political” and “draw the court into an arena it should not be in”, the barrister acting for Chris Minns’ chief of staff, James Cullen, told the NSW court of appeal on Wednesday.
Cullen took legal action to avoid facing an inquiry examining the leaking of confidential minutes from a report into the proposed sale of Rosehill racecourse.
After the ministerial staff member refused the summons to appear, the president of the Legislative Council, Ben Franklin, sought a warrant for Cullen’s arrest.
That power stems from a law, enacted in 1901, that allows the NSW government to compel individuals to give evidence at parliamentary committees.
Cullen said in October: “I will be arguing that the law enacted in 1901 is unconstitutional because it doesn’t take into account the independence of the judiciary.”
Under the Parliamentary Evidence Act, if a witness refuses to attend, and the president of the Legislative Council finds they failed to appear without just cause or reasonable excuse, the matter is referred to a judge of the supreme court, who “shall issue a warrant”.
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Brendan Lim SC told the court on the second and final day of the appeal court hearing that the process risked drawing the court into a political debate “perhaps between the government and the opposition”.
“It could become … highly partisan, highly political and draw the court into an arena it should not be in,” Cullen’s barrister said.
“Not because the court’s done anything to invite that, but because others, holding a warrant signed and sealed by a judge, can defend their conduct.”
Justice Stephen Free, one of the three judges on the court of appeal bench, questioned this argument. He pointed out a hypothetical scenario where it might be bipartisan.
“Every member of the chamber or the committee might be saying this property developer who’s gone to ground should be before the committee to answer our questions,” he said.
Justin Gleeson SC, who appeared as an intervenor for the Legislative Council, told the court it was understandable why having a judge “bound up” in politics could be bad.
But he said there had only been one case “out of hundreds” over the past three decades where the administrative power of a judge was found to “offend the integrity of the court”.
On Tuesday, Bret Walker SC appeared on behalf of Franklin. He told the court the law allowed the government to force unwilling witnesses to testify.
Walker rejected claims that judges could be seen as “glove puppets” of the government.
Having a judge sign off on a warrant was in line with the constitution, which prevented parliamentary debate or proceedings from being questioned or impeached in court or public, he said.
The chief justice, Andrew Bell, asked: “And you add ... that it’s a component part of something which is democratically good?”
“Exactly,” Walker replied.
The NSW attorney general, Michael Daley, has backed Cullen’s argument. On Tuesday, Daley’s barrister, Craig Lenehan SC, said the law deprived the court of any real role when it rubber-stamped warrants without scrutiny.
“It is the lack of that role that is fatal or ultimately is the last nail in the coffin of the validity of this regime,” Lenehan told the court.
The latest stoush over whether ministerial staff can be compelled to give evidence follows a confrontation between staff and another parliamentary committee over the Dural caravan investigation.
That committee ordered the staff, including Cullen, to give evidence. At first, they declined, but the threatened constitutional standoff was resolved in June when they agreed to appear.
