By Gad Coffie -
Snapshot
- The NSW Court of Appeal recently struck down century‑old provisions of the Parliamentary Evidence Act 1901 that compelled judges to issue detention warrants, finding they impermissibly compromised judicial independence under the Kable doctrine.
- The Court rejected arguments based on labels, historical uniqueness and ‘persona designata’ reasoning, emphasising the practical operation of the law—not its age, intent or terminology—determines whether it undermines institutional integrity. The High Court has recently granted special leave to appeal in this case.
- The case highlights a broader systemic issue: outdated statutes can create constitutional risk and litigation costs, raising the policy question of how proactively parliaments should modernise their legislation.
Just before Christmas, the New South Wales Court of Appeal handed down its decision in Cullen v President of Legislative Council of New South Wales [2025] NSWCA 278. In this case Mr Cullen, Chief of Staff of the Premier of NSW, challenged the validity of sections 7-9 of the Parliamentary Evidence Act 1901 (NSW) (‘Act’). The President of the Legislative Council (‘President’) was the defendant in this case. The Attorney General and the Speaker of the Legislative Assembly (‘Speaker’) intervened.
So, what do the provisions in question say? In essence, sections 7-9 provide that the President or the Speaker may certify that a warrant be issued by a judge for the apprehension and detention of a witness who fails to appear before the relevant house without just cause or reasonable excuse. The judge is to do no more than issue the warrant. It is worth pointing out that these provisions have remained substantially unaltered since the enactment of the Parliamentary Evidence Act 1881 (NSW).
