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.”
The acting chair of the Legislative Council's privileges committee, 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.
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”.
