The former boss of Donut King and Gloria Jeans has failed in a bid to escape giving evidence to a parliamentary inquiry, in what was seen as a test case on committees’ powers to compel witnesses.
High court judge Michelle Gordon ruled against Tony Alford, citing “lack of merit” in his complaint that the parliamentary joint committee on corporations and financial services was acting beyond constitutional power.
Alford, a former director of the Retail Food Group, and a second former executive brought the case to challenge a summons issued by the committee on 18 October to appear after the pair refused several invitations to give evidence.
The committee’s inquiry into the operation and effectiveness of the franchising code of conduct requires the pair to give evidence on 26 November and is due to report by 6 December.
In a hearing on Wednesday, Alford’s lawyers claimed because a joint committee is not a committee of either the Senate or the House of Representatives, it therefore has no constitutional entitlement to exercise the powers of the Senate, such as issuing orders to compel witnesses.
The attorney general, Christian Porter, intervened in the case, warning that it raised “serious questions about the ability of parliamentary committees to conduct their business and to compel witnesses to appear”.
Gordon noted the committee was established “apparently validly” by resolutions of both houses which included a power to compel witnesses. Nothing in the constitution prevented the establishment of joint committees, she said.
Gordon said in those circumstances it was “difficult to identify a role for the courts in relation to that exercise of power”, noting that section 49 of the constitution prevents courts from judging the exercise of parliament and its committees’ functions.
Gordon refused the application with costs, finding that the plaintiffs had “failed to establish a prima facie case for relief” and there was “little, if any, probability that at a final hearing the plaintiffs would be entitled to the relief that they seek”.
“The corporations and financial services committee exists. It has a power to direct witnesses to attend before it.
“It has exercised that power and directed the plaintiffs to appear before it.
“The plaintiffs have not identified any reason why such an exercise of power by the committee should be reviewed by this court or any basis for this court to find the exercise of that power invalid.”
