The New South Wales parliament is heading towards a legal showdown over its ability to compel witnesses to give evidence to parliamentary committees and punish those who refuse.
The premier’s chief of staff, James Cullen, is taking legal action against the parliament in the state’s court of appeal to avoid fronting an inquiry examining the leaking of confidential minutes from a report into the proposed sale of Rosehill racecourse to media.
The minutes recorded discussions of a parliamentary committee, whose report had not yet been released, and so were privileged.
Cullen was summonsed by the privileges committee to appear on Wednesday morning as part of an investigation into the leak, but did not attend.
Parliament could now seek a warrant for his arrest from the supreme court. Cullen is arguing that the summons compromises the institutional integrity of the supreme court.
“The committee’s proposed course of action raises complex questions of constitutional law, which I will be testing in the proceeding,” he said.
“I will be arguing that the law enacted in 1901 is unconstitutional because it doesn’t take into account the independence of the judiciary.”
Cullen has filed his case directly with the NSW court of appeal.
The defendant, the president of the Legislative Council, is expected to call for the hearing to be expedited because of the ramifications it could have for the ability of parliamentary committees to call witnesses.
The acting chair of the Legislative Council’s privileges committee, the independent Rod Roberts, said the parliament would vigorously defend its position.
“The Legislative Council and its committees have the power to compel the attendance of witnesses, not being members of either House of the Parliament, to attend and give evidence, in accordance with the provisions of the Parliamentary Evidence Act,” he said.
The privileges committee has retained the senior counsel Bret Walker SC to represent it.
The latest stoush over whether ministerial staff can be compelled to give evidence follows a confrontation between the staff of the premier, Chris Minns, and another parliamentary committee over the Dural caravan investigation.
Minns and the police minister, Yasmin Catley, refused to appear before an upper house committee to answer questions about when they first became aware that the explosive-filled caravan might be a hoax rather than a terrorist plot.
Instead the committee ordered their staff to give evidence. At first the staff declined. The threatened constitutional standoff was resolved in June when they agreed to appear.
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Cullen, however, has refused to obey a summons of a separate privileges committee. His legal challenge will test whether ministerial staff can be punished for not attending committee hearings.
At issue is whether the 120-year-old Evidence Act offends against the separation of powers between courts and the parliament.
Janina Boughey, an associate professor of Law at the University of NSW, said the case raised “really interesting constitutional questions about the powers of Parliament to enforce its own orders, as well as about the separation between the judicial and legislative branches”.
“If the case goes forward it might have important practical implications for the way Parliament functions and whether and how its orders can be enforced.”
In her podcast, Constitutional Clarion, during the last crisis, the Sydney University constitutional law expert Prof Anne Twomey explained that on the face of the legislation there was no carve-out for ministerial staff.
But she said the Evidence Act raised some complex constitutional questions.
The act allows the parliament to seek an arrest warrant from a supreme court judge if it is satisfied that there is just cause.
Section eight requires the judge to issue the warrant, after which the non-cooperative witness can be taken into custody by parliamentary officers and potentially held for one month for refusing to answer “lawful questions”.
Twomey noted that the legislation did not appear to allow any discretion for the judge to reject the request for a warrant. It could be argued that this makes the court “a rubber stamp for the house”, she said.
Parliament also had the power to punish under the act, rather than the court, she said. “This is unusual as it allows parliament to make the decision, not the courts.”
There was also a question of whether there is some “conventional” immunity for staff, given that their bosses are immune, Twomey said.
But she said the immunity, if it existed, would probably not extend to when a staff member was acting outside his or her duties.
Boughey said: “There is not a clear convention against Ministerial advisors being unable to be summonsed by Parliamentary Committees – despite ministers and advisors often arguing that there is.”
She said there were situations in which it was necessary for accountability and legitimate for ministerial advisers to be summonsed.
“For example, if the advisor was not acting at the direction of a Minister, had relevant information that the Minister did not, acted improperly or unlawfully, or was exercising ministerial powers themselves rather than merely advising,” she said.
In this case, the privileges committee is investigating leaked minutes that recorded a decision to refer Minns to the Independent Commission Against Corruption. Ultimately, the committee decided to simply refer its report.
Icac did not take any action over the Rosehill development proposal.
