Public works and private duties – the roles of the judiciary and the legislature in Attorney-General (Tas) v Casimaty [2024] HCA 31
4.02.2025
On the outskirts of Hobart Airport, where Holyman Avenue and Cranston Road meet the Tasman Highway, construction is set to begin on a new interchange. A Parliamentary Committee has considered and reported on the plans, clearing the way for work to begin. An aggrieved resident, claiming an interest in land adjacent to Cranston Parade, alleges that the works to be undertaken are not in fact the works that were considered by the Committee—the costs don’t add up, the roundabouts are absent, the works are in fact unlawful. This resident takes action against the contractors to prevent them proceeding. The State intervenes, seeking in turn to prevent the Court interrogating the contents of the Committee report to ascertain if the works contained within it are those same works currently taking place on the outskirts of Hobart Airport. The Committee has reported, and there can be no assessment of the contents of that report to contrast with the actual bitumen being laid under its auspices—even if the roundabouts are missing.
This is the somewhat bizarre scenario confronted by the High Court in Attorney-General (Tas) v Casimaty [2024] HCA 31 (Casimaty), raising complex issues of statutory interpretation, justiciability, and the scope of parliamentary privilege. In this post, I will summarise the judges’ conclusions on these issues, and note the important lessons this case holds for practitioners.
Facts and procedural history
Section 15 of the Public Works Committee Act 1914 (Tas) (the Act) sets out the functions of the Parliamentary Standing Committee on Public Works (the Committee), a joint committee of members of the Legislative Council and House of Assembly. Under section 15(1), ‘the Committee shall, subject to the provisions of [the] Act, consider and report upon every public work that is proposed to be undertaken by a general government sector body’ in all cases where the estimated cost of completing the work exceeds the relevant monetary threshold.
Section 16 of the Act is headed ‘Conditions precedent to commencing public works’. Subsection (1) provides that a public work proposed to be undertaken by a Tasmanian Government department or State authority that is subject to section 15 must not commence until it has been referred to and reported upon by the Committee.
Under section 16(4), the Committee must report to the House of Assembly, or the Governor if the House is not in session, as to the results of their inquiry. If the Committee report does not recommend that the work be carried out, the work is not to be commenced ‘unless and until it has been authorized by an Act’ (section 16(5)).
There was no dispute over the fact that the Committee had purported to report upon public works to be undertaken in the general form and location described. As noted above, Mr Casimaty, who claimed to have an interest in land adjacent to the roads on which the public work would take place, impugned the propriety of the works on the basis that they were not the same works that the Committee had reported on, the salient differences pleaded being related to the significantly greater cost of the final project and the absence of key features, such as roundabouts, described in the Committee’s report: at [4].
In addition to Hazell Bros Group Pty Ltd (the contractors for the project, who did not participate in the proceedings at any stage), the Attorney-General for Tasmania was joined as a defendant to the proceeding at first instance in the Supreme Court of Tasmania. The Attorney-General sought to have the statement of claim struck out, either because there was no ‘justiciable issue’ or because adjudicating on the issues raised in the pleadings would offend parliamentary privilege. They were successful on the latter point before the primary judge. On appeal to the Full Court of the Supreme Court, it was held that section 16(1) created a ‘public obligation’ (that is to say, it was justiciable, contra the first point in the Attorney-General’s interlocutory application) and that comparing the road work performed in practice to that reported on by the Committee would not offend the absolute nature of parliamentary privilege: at [5]-[7].
The Attorney-General appealed to the High Court on two grounds: (1) that the Full Court was wrong to construe contravention of section 16(1) as creating a justiciable controversy; and (2) that the Full Court should have upheld the finding of the primary judge that considering the case as pleaded would contravene parliamentary privilege: at [8]-[9].
The High Court judgment
The plurality opinion
Despite considerable attention paid to the scope of parliamentary privilege in submissions to the Court (the Attorney-General of the Commonwealth intervened solely to contest Tasmania’s position on this point, while the Attorneys-General for South Australia and the Australian Capital Territory intervened to support Tasmania on both grounds), the plurality (Gageler CJ, Gordon, Steward, Gleeson, Jagot and Beech-Jones JJ) did not think it was necessary to address these arguments, as the matter was capable of resolution by upholding the first ground of appeal—that on its proper construction a breach of section 16(1) was not an obligation enforceable by a court: at [11]-[12].
A The history and structure of the Act
The plurality commenced their reasons by traversing the legislative history and overall structure of the Act. The progenitor of the modern Act was the Public Works Act of 1888 (NSW), which sought to ‘strengthen parliamentary oversight of executive expenditure on public works by providing a standing parliamentary mechanism for investigating and advising on Ministerial proposals for expenditure on public works’: at [13]. NSW, Victoria and the Commonwealth each developed further legislation based on the fundamental structure and purpose of this original public works scheme. In enacting the Act in the early twentieth century, the Tasmanian Parliament was consciously replicating the frameworks in operation in other jurisdictions at the time: at [15].
Despite various amendments over a span of years, the substantive operation of sections 16(1) and (5) remain largely the same as the original scheme. The only material difference between the original and current provisions is that instead of requiring a public work to be sanctioned by a resolution of the House of Assembly in order for the works to commence, section 16(5) now requires a public work to be recommended by the Committee in a report to the House under section 16(4): at [27].
Of particular relevance is that, as with the preceding legislative schemes, section 16 has been ‘consistently described in headings and marginal notes not as creating an offence or as imposing a prohibition against the carrying out of an unauthorised public work but as setting out “conditions precedent to commencing public works”’: at [30].
This leads to the question at the core of the Court’s decision: if it is not an offence to carry out unauthorised public works under the Act, what are the consequences?
B Proper construction of section 16(1)
As set out in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky), the consequences of non-compliance with a statutory condition will depend upon the construction of the statute—while non-compliance could be intended to invalidate a purported exercise of a power, alternatively it could give rise only to non-legal consequences, such as those of a political or administrative nature. That is to say, not all failures to comply with a statutory condition will be enforceable by a court: at [32].
While the power to carry out a public work subject to the Act may be exercised by a variety of public authorities or bodies and arise from a number of different sources, whether statutory or executive, in all cases, ‘the exercise of power is … one for which, in accordance with the conventions of responsible government, Ministers of the Crown are politically accountable to the House of Assembly and to the Legislative Council’: at [34].
The plurality noted the statement of the Court in Egan v Willis (1998) 195 CLR 424 that the executive’s ‘primary responsibility in its prosecution of government is owed to Parliament’: at [35]. Citing Isaacs J in Horne v Barber (1920) 27 CLR 494, the plurality also noted that responsible government is a ‘keystone of our political system’, and involves Members of Parliament ‘watching on behalf of the general community the conduct of the Executive’: at [36].
It is this mechanism of responsible government that the Act and its predecessors were designed to bolster: at [37]. Rather than displace responsible government and supplant it with the oversight of the courts, the plurality held that the Act sought to ‘strengthen political accountability in accordance with the conventions of responsible government’: at [40].
The structure of the Act drives this point home—‘[f]rom beginning to end, the application of section 16 of the Act to a public work is within the control of the House of Assembly and the Legislative Council’: at [38]. For example, ‘public work within the scope of section 15(1) of the Act can be withdrawn from the operation of the Act by resolution adopted by each of the House of Assembly and the Legislative Council’: at [38]. Similarly, any public work that might be within scope of section 15(1) of the Act but for failing to reach the monetary threshold can be ‘brought within the operation of the Act by resolution of either the House of Assembly or the Legislative Council’: at [38]. The steps required to meet the conditions precedent to commencement of a public work ‘are wholly intra-mural’ and ‘undertaken exclusively by Members of the Parliament’: at [39].
As the Act is designed to ‘strengthen political accountability’, the consequence of non-compliance with the conditions precedent is:
… best seen to lie exclusively within the province of that mechanism of political accountability. The consequence of non‑compliance is political, such that compliance is to be enforceable by the House of Assembly and the Legislative Council, not legal, such that compliance is to be enforceable by a court (at [40]).
The appropriate means of managing non-compliance lie within the chambers of Parliament, such as through parliamentary debate and censure, or by refusing to authorise expenditure: at [41]. The structure, history, and text of the Act all evince the clear intention that the consequences of non-compliance with section 16(1) are enforceable by the Parliament, not the courts.
Edelman J’s concurring opinion
Edelman J, who wrote separately but concurred with the conclusions of the plurality, considered that the first ground of appeal involved ‘an assertion that any adjudication at all concerning a breach of section 16(1) [was] within the broader exclusive cognisance of the Tasmanian Parliament’, and therefore effectively subsumed the second ground of appeal. Nonetheless, His Honour held that it was necessary to delve into the issues surrounding parliamentary privilege ‘as a necessary incident to determining the scope of the relative spheres of competence of the courts and Parliament’: at [49].
At [52], His Honour approached the problem by stepping through what he called ‘three anterior questions’:
Who owes the duty in section 16(1)?
What is the content of the duty?
To whom is the duty owed?
While taking a more structured path compared to the plurality, Edelman J reached the same conclusion: ‘the duty in s 16(1) is created by Parliament, owed to Parliament, and related to the activities of Members of Parliament’ and the Supreme Court of Tasmania should therefore not adjudicate on the alleged contravention: at [54].
In considering the content of the duty, His Honour considered the extent to which parliamentary privilege, as embodied in Article 9 of the British Bill of Rights 1688, would be infringed if that duty involved ‘questioning’ the internal deliberations of Parliament: at [52], [67].
While not dispositive to the appeal, His Honour’s comments on this point are noteworthy for the way they illuminate the interpretative questions around the scope of the requirement that debates and proceedings in Parliament ‘ought not to be impeached or questioned in any Court or Place out of Parliament’, as the privilege is put in Art 9.
His Honour noted that a strict literal interpretation of ‘questioned’, which would mean that to peer at all at the contents of the report would be to ‘question’ them, could not be accepted as correct. There is a line of authority which holds that where the content of a proceeding is relied upon to establish a fact, rather than the truth of the content of that proceeding, then those proceedings have not been ‘questioned’ in contravention of Art 9: at [73]-[74].
However, even this dividing line between fact and truth has blurred edges; one obvious exception is defamation—no action for defamation can be brought against a person for the fact of particular words being spoken in Parliament: at [74]. As His Honour went on to set out, rather than attempting to mark out a futile dichotomy between categories of proper and improper consideration of parliamentary proceedings, determining if proceedings have been ’questioned’ requires a more pragmatic approach. Such an approach should be based on a consideration of the purpose of the privilege, being to protect the ‘efficient and effective discharge of parliamentary business’ without the inhibiting and damaging threat of legal challenge looming over the conduct of that business: at [75]-[83].
His Honour expressed the core of this method of enquiry at [81], stating that ‘attention should remain focused upon whether any use of speech, debates or proceedings in Parliament could give rise to a real or substantial prospect of chilling or restraining the free engagement of those involved in the Parliament and its processes’.
With such a contextually sensitive test, it is unsurprising then that Edelman J determined that it is ‘not possible to determine conclusively’ if all proceedings that relate to breach of section 16(1) of the Act would infringe Art 9, noting that ‘much may depend upon any submissions that are made about the alleged breach’: at [84].
To illustrate this, His Honour noted there was scope for a wide range of submissions on the Committee’s report, some of which would infringe Art 9, and some of which would not. While it would be ‘very difficult’ to see how Art 9 could be infringed if the evidence adduced was limited to establishing that the $46.4 million expended was not the same as the estimate in the report, submissions that involved ‘questioning’ the Committee’s work by seeking to compare the final works to those detailed in the report could constitute an infringement of Art 9: at [84]-[87].
For the case at hand, it was not necessary to decide exactly how far one could go in scrutinising the work of the Committee before parliamentary privilege was infringed, but Edelman J rejected an overly restrictive approach, stating that he did ‘not accept that the entirety of the proceeding would necessarily be contrary to Art 9 of the Bill of Rights’: at [87].
Ultimately, Edelman J emphasised that as section 16(1) concerns the internal affairs of the Tasmanian Parliament and involves a duty owed only to Parliament, it would be inappropriate and indeed ‘corrosive’ for the Court to ‘assum[e] authority over core institutional aspects of another branch of government’: at [104].
Conclusion
Casimaty serves as an important reminder that not every breach of a statutory provision will result in a controversy that must, or even can, be adjudicated upon by the judiciary; Parliament may intend that accountability for statutory compliance remains within its own remit, and that rather than displace parliamentary scrutiny, an Act may seek to reinforce Parliament as the principal means of holding the executive accountable. As expressed by Edelman J, while it is:
… unusual for an alleged breach of a duty imposed by State legislation upon an Executive body to be a matter that is wholly excluded from the adjudicative authority of the Supreme Court of that State…Nevertheless, there are instances, with powerful justifications and strong historical antecedents, where courts have declined to recognise an authority to adjudicate upon a dispute (at [50]-[51]).
While atypical in modern legislative schemes, it is entirely permissible for Parliament to retain oversight over compliance with a statutory condition as a matter within its own ‘exclusive cognisance’. Alongside the role played by the judiciary, the system of responsible government provides the Parliament with a significant part to play in monitoring the executive’s compliance with the law. As part of ascertaining whether non-compliance is intended to result in a decision being rendered invalid in accordance with the stream of authority associated with Project Blue Sky, Casimaty underscores that practitioners must be mindful of which arm of government is intended to oversee compliance. In that context, the crucial question, as expressed most directly by Edelman J, is not simply if a duty has been breached, but rather, to whom the duty to comply with the legislative scheme is owed. While each case will turn on the specific features of the relevant legislative scheme, it is clear from Casimaty that the structure of any applicable oversight framework (for example, if parliamentarians are specifically empowered to scrutinise compliance) will be a key factor to consider.
In addition, the reasons of Edelman J highlight the uncertainty that remains as to the scope of parliamentary privilege in Australia (noting that the plurality did not think it was necessary to address these arguments). Neither of the two positions that were posited by the parties to Casimaty – a Court being prohibited from going beyond acknowledging the bare fact that Parliament has taken a particular action, or a Court examining in detail the content and substance of any parliamentary proceedings – appear to represent the correct position. Rather, the true scope of parliamentary privilege lies in the gulf between them. His Honour emphasised the importance of a case-by-case consideration of whether the admission of any submissions on the proceedings of Parliament would have a ‘chilling effect’ on the conduct of Parliament (for example, in the classic case of defamation, even the admission in a Court proceeding of the facts of words spoken in Parliament may impede the ability of Parliamentarians to speak freely).
Given the willingness of Edelman J to entertain a less restrictive interpretation of parliamentary privilege than had been argued by the Attorney-General, and the reluctance of the Court at large to otherwise stake out clear boundaries of the privilege, practitioners should be prepared for the scope of the privilege to remain a contested space for the foreseeable future.
Patrick Hossack is a solicitor based in Victoria, specialising in public and administrative law.
Suggested citation: Patrick Hossack, ‘Public works and private duties – the roles of the judiciary and the legislature in Attorney-General (Tas) v Casimaty [2024] HCA 31’ (4 February 2025) <https://www.auspublaw.org/blog/2025/02/public-works-and-private-duties-the-roles-of-the-judiciary-and-the-legislature-in-attorney-general-tas-v-casimaty-2024-hca-31>