Parliament cannot compel witnesses in matters of intense public interest
Court of appeal ruled parliamentary arrest warrant provisions invalid, citing institutional integrity concerns after premier's chief of staff challenged compulsion powers. Multiple witnesses now declining to appear before inquiries citing the ruling, including DPP consultant and hospital contractor, undermining parliamentary investigations.
- NSW court of appeal ruled arrest warrant provisions invalid in December, citing institutional integrity concerns
- James Cullen, premier's chief of staff, launched legal action in October to avoid testifying about Rosehill Racecourse leak
- Multiple witnesses now refusing to appear before inquiries, including DPP consultant Brigid Glanville and hospital contractor James O'Brien
- High Court granted special leave for appeal in March; hearing unlikely until September
- Opposition passed bill in March to restore warrant powers through upper house president; government has not supported it in lower house
A NSW court ruling invalidating parliamentary arrest warrant provisions has prompted witnesses to refuse appearing before inquiries, creating a constitutional crisis that threatens public interest investigations and parliamentary oversight.
In October, James Cullen, the chief of staff to New South Wales Premier Chris Minns, took the unusual step of launching legal action to avoid testifying before a parliamentary inquiry. The inquiry was investigating the leak of confidential minutes from a report about the proposed sale of Rosehill Racecourse in Sydney. When the legislative council's president threatened to seek an arrest warrant to compel Cullen's attendance—a power granted under provisions dating back to 1901—the case escalated into constitutional territory. In December, the NSW court of appeal sided with Cullen, ruling that those arrest warrant provisions were invalid because they impaired the court's institutional integrity. The decision upended more than a century of parliamentary practice.
What followed was swift and predictable: witnesses across New South Wales began refusing to appear before parliamentary inquiries, citing the court's ruling as their legal shield. The impact has been immediate and corrosive. In March, Brigid Glanville, an external media consultant to the Director of Public Prosecutions, declined multiple invitations to testify before an upper house inquiry examining identity protections in child-related court proceedings. She had been present at a meeting where the DPP decided to pitch a story to 2GB about a sentencing hearing involving a young person—a decision the inquiry was scrutinizing. Glanville made herself unavailable to be served a summons. Around the same time, James O'Brien, the facilities director at Honeywell, a maintenance contractor at Calvary Mater hospital in Newcastle, cited the court of appeal decision when he declined to appear before an inquiry into mould and maggot infestations at the facility. The pattern was becoming clear: the ruling had handed witnesses a legal exit.
Parliamentary leaders and legal experts have sounded alarms about the consequences. Anthony Whealy, a former court of appeal judge and chair of the Centre for Public Integrity, called the situation "completely unacceptable," arguing that parliament's inability to compel testimony in matters of public interest undermines democratic accountability. Sue Higginson, a Greens member of the legislative council, told the inquiry that key witnesses were simply not showing up. The loss of compulsion powers, Whealy noted, was particularly damaging because parliamentary inquiries often serve as precursors to investigations by the Independent Commission Against Corruption. Without the ability to force testimony, those inquiries lose their teeth.
The political fallout has created a constitutional stalemate. The Minns government, which holds minority status in both houses of parliament, has found itself unable to pass several bills in the upper house, where the opposition and crossbenchers control the balance of power. In March, the opposition and crossbench passed a bill attempting to restore the invalid provisions by allowing the upper house president to issue warrants instead of the court. But the government has not supported the bill in the lower house, leaving it stalled. The opposition has begun attaching the amendments to unrelated legislation in an attempt to force the government's hand—a tactic the legislative council's president ruled permissible on Tuesday. The maneuver is effectively holding multiple pieces of government legislation hostage until the parliamentary evidence laws are fixed.
Premier Minns has resisted immediate action, saying he will wait for the High Court's decision before making legislative changes. In March, the High Court granted special leave for an appeal against the court of appeal ruling, though the hearing is unlikely to occur until September. Minns has also pushed back against the suggestion that the status quo is harming democracy, pointing to the separation of powers, an independent judiciary, and the existence of the corruption watchdog as safeguards. But the practical reality on the ground tells a different story: parliamentary inquiries designed to investigate matters of public concern are losing their ability to compel the testimony they need. The court's decision to protect institutional integrity has created a vacuum that witnesses are now exploiting, and the political system appears locked in a holding pattern waiting for the High Court to break the deadlock.
Citações Notáveis
It's completely unacceptable that parliament cannot compel witnesses to appear before it in matters of intense public interest— Anthony Whealy, former court of appeal judge and chair of the Centre for Public Integrity
Key witnesses are simply not turning up to give evidence— Sue Higginson, Greens member of the legislative council
A Conversa do Hearth Outra perspectiva sobre a história
Why did the court decide that these arrest warrant powers were actually unconstitutional? They'd been on the books for over a hundred years.
The court said they impaired the court's own institutional integrity—that parliament was essentially using the courts as enforcement agents for parliamentary authority. It's a separation of powers argument. The court saw it as parliament trying to conscript the judiciary to do its bidding.
But doesn't parliament need some way to compel witnesses? Otherwise inquiries become voluntary.
Exactly. That's the tension. The court protected its own independence, but in doing so, it stripped parliament of a tool it's used for generations. Now witnesses can simply refuse to show up, and there's no legal consequence.
So the premier's chief of staff essentially opened a door that everyone else is now walking through.
That's the irony. Cullen fought the summons, won, and suddenly dozens of other people realized they could do the same thing. It's a cascading effect from a single legal victory.
Is there any chance the High Court reverses this when it hears the appeal?
It's possible, but not guaranteed. The High Court takes separation of powers seriously too. And the appeal won't even be heard until September, so parliament is stuck in limbo until then.
What happens to the investigations in the meantime?
They stall. You get partial testimony, missing witnesses, incomplete records. The inquiries lose credibility and power. And politically, the opposition is using it as leverage—refusing to pass government bills until the laws are fixed.