No warrant was issued for Cullen’s arrest, and the ruling means there is no basis for a warrant being issued in the future.
NSW Attorney-General Michael Daley took the unusual step of intervening in the proceedings in support of Cullen’s position.Credit: Sam Mooy
The NSW Parliamentary Evidence Act 1901 says witnesses other than members of parliament may be summoned to appear before parliamentary inquiries.
If the witness fails to attend and give evidence, it says the presiding officer of the relevant house of parliament may provide a certificate to the NSW Supreme Court if they are satisfied that failure is “without just cause or reasonable excuse”.
On the basis of that certificate, the law says the court “shall issue a warrant” for the person’s arrest. The court found these provisions were unconstitutional and therefore invalid.
In submissions filed in court, Daley’s barristers, led by Craig Lenehan, SC – who has now been appointed a Federal Court judge – said the laws do not provide a “sufficiently independent” and impartial role for the court in issuing the warrant.
That was because, in their submission, the provisions “contain no express words that would suggest that the judge called upon to issue a warrant is permitted to inquire into the underlying veracity of the facts set out in the certificate provided by the presiding officer”.
A judge is asked to issue a warrant “effectively on the instructions of the presiding officer”, without hearing from the person affected, and without exercising any independent discretion, they said.
On that basis, they said the provisions confer a function on the Supreme Court that substantially impairs its “institutional integrity”, and that this is unconstitutional.
“The Attorney thus finds himself in the unusual position of supporting the applicant’s contention that this court should declare parts of a NSW statute invalid,” the submissions said.
The court said in its written decision the laws did not allow “the relevant judge to bring any … 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 presiding officer].
“To exploit the reputation for independence in this way, without the actuality of independence, is to impair the institutional integrity of the court substantially.”
The court said that “[it] may be accepted that it is desirable if indeed not essential … 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”.
But it said NSW was unique in adopting “a process for at least most of its committees of involving the Supreme Court when coercion is required”.
“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.”
Bret Walker, SC, led a team acting for the president of the upper house. The president is the presiding officer who would have sought the warrant in this case.
Walker and barristers Thomas Wood and Frances Leitch said in written submissions that “judicial officers have long been involved in issuing warrants of various kinds”, including for listening devices. They urged the court to reject the constitutional attack on the laws.
Cullen’s barristers, Brendan Lim, SC, and Jackson Wherrett, said in submissions to the court that Cullen has been summoned to appear before the inquiry “to answer questions about the premier’s knowledge of the disclosure [of the draft minutes] and whether Mr Cullen himself was responsible for the disclosure”.
They argued that the Supreme Court, in issuing a warrant for the arrest of an unwilling witness, is required “to act as the cipher of the parliamentary officer who seeks the warrant” rather than acting independently.
“The provisions are therefore incompatible with the institutional integrity of the Supreme Court and are invalid.”
The inquiry is examining how draft minutes that revealed the Rosehill parliamentary committee considered referring Minns to the Independent Commission Against Corruption were leaked to the media. Ultimately, committee members resolved to refer the report itself, rather than the premier, to the corruption watchdog.
The ICAC decided not to pursue the matter. It said in a statement in December last year that its assessment panel had “unanimously determined that the information provided does not indicate a reasonable likelihood of involving corrupt conduct”.
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