Balancing the System: What happens when systems of power come into conflict with each other?

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Introduction

The Australian Constitution is based on basic principles such as democracy, the rule of law and separation of powers.[i] Thus, many moving parts work together to support these principles. However, a natural part of the civil judiciary process involves balancing competing interests such as autonomy with control or open justice with privacy.[ii] Thus, compromise is essential to an effective system of power. This article focuses on the 2025 decision in Cullen v President of the Legislative Council of NSW (‘Cullen v President’) and the constitutional tensions it exposed, to examine the Australian constitutional government’s response when compromise becomes conflict.

Background

In 2025, the Court of Appeal of the New South Wales Supreme Court passed down a ruling determining that ss 7-9 of the Parliamentary Evidence Act 1901 (NSW) (‘The PEA Act’) were constitutionally invalid.[iii] These provisions provide the Supreme Court of NSW with the authority to issue an arrest warrant in the case of non-attendance by a summoned witness.[iv] In this case, James Cullen, the Chief of Staff of the Premier of NSW, refused to comply with a summons to give evidence,[v]  arguing the arrest warrant contravened the institutional integrity principle outlined in Kable v Director of Public Prosecutions (‘Kable principle’).[vi] More precisely, this case considered whether ss 7-9 of the PEA Act impermissibly compromised the institutional integrity of the NSW Supreme Court, contrary to the Kable principle. The court found the provisions effectively stripped the judge of decision-making power regarding whether or how the warrant can be issued.[vii] Further, the President of the Legislative Council is to give all future orders, providing them full discretion regarding the nature of the subsequent arrest and detention, without available exceptions.[viii]

Issue

As highlighted in the Civil Procedure Act 2005 (NSW), the civil process’s ‘overriding purpose’ is to facilitate the just, quick and cheap resolution of disputes — a purpose described in case law as the 'administration of justice'.[ix] Hence, protecting a just, democratic constitutional system takes precedence over individual moral considerations. However, this case has resulted in possible adverse consequences for the system’s transparency. Notably, witnesses are refusing to appear before NSW parliamentary inquiries.[x] Justice Spigelman describes open justice as ‘one of the most pervasive axioms of the administration of justice’,[xi] and limiting the court’s access to important information through witness evidence threatens this aspect of the system. This tension reveals the fallibility of the current system of power, where two mechanisms with the same aim can conflict with one another. Hence, this case highlights how such issues can be addressed.

Possible Solutions

The main course of action in such a situation is to exercise the option to appeal. The NSW Supreme Court’s jurisdiction to hear appeals originates in the Supreme Court Act 1970 (NSW).[xii] The Constitution further vests jurisdiction in the High Court to hear appeals from any court.[xiii] The appeal system safeguards this democratic system, holding the court accountable for its mistakes and allowing it to rectify them. [xiv] In this case, an appeal has been lodged to overturn the decision, aiming to return to the previous system.

However, the appeal system is limited, being slow and reliant on the availability of resources. In this case, special leave to appeal, while granted, is unlikely to run until August.[xv] Regardless, this system ensures that ‘justice is done in each case’, [xvi] with the consequences of such decisions being necessary and appropriate.

The other option is legislative change, which can adjust existing laws and systems to ensure compliance with the Constitution.

This is practically viable, with the Parliamentary Evidence Amendment (Attendance of Witnesses) Bill 2026 already before Parliament. It outlines proposed changes,[xvii] such as providing the power to issue a warrant to the President.[xviii]  This resolves the issue while preserving the previously threatened separation of powers.

However, practical considerations complicate this issue, where political context and the impact of legal proceedings affect the likelihood of such bills being accepted.[xix]

Conclusion

Thus, this case exemplifies the potential for Australia’s current system of power to come into conflict with itself. However, it also provides solutions to such conflict through options such as appeal or legislative reform. Cullen v President illustrates the tension within Australia’s constitutional framework: courts can strike down laws that threaten the judicial system’s integrity, but this may limit parliament’s ability to hold the executive accountable. This case shows that separation of powers is a live and sometimes uncomfortable constraint on all arms of government. Both options of redress highlight the system’s ability to self-correct, whereas the political and practical obstacles to each highlight how fragile that balance can be.

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References
[i] ‘Introduction to the Six Principles’ Australian Constitution Centre (Web Page) [1] <https://www.australianconstitutioncentre.org.au/the-six-principles/>.

[ii] Sonya Willis, ‘Civil Dispute Resolution: Competing Themes and Objectives’ (Cambridge University Press, 2022) 266-7.

[iii] Cullen v President of the Legislative Council of New South Wales [2025] NSWCA 278 [79] (‘Cullen v President’).

[iv] Parliamentary Evidence Act 1901 (NSW) ss 7-9.

[v] Jordyn Beazley, ‘NSW political staffers could be arrested after failing to appear at Dural caravan inquiry’ The Guardian (Web page, 20 June 2025) < https://www.theguardian.com/australia-news/2025/jun/20/nsw-political-staffers-could-be-arrested-after-failing-to-appear-at-caravan-fake-terrorism-plot-inquiry-ntwnfb>.

[vi] Cullen v President [44].

[vii] Ibid [5].

[viii] Ibid [6]-[7].

[ix] Civil Procedure Act 2005 (NSW) s 56.

[x] Penry Buckley, ‘‘Not a good look’: witnesses refuse to appear before NSW parliamentary hearings after court ruling’ The Guardian (Web Page, 5 May 2026) <https://www.theguardian.com/australia-news/2026/may/05/witnesses-refuse-nsw-parliamentary-hearings-evidence>.

[xi] James Spigelman ‘Seen to Be Done: The Principle of Open Justice’ (1999) Australian Law Journal 290, 298.

[xii] Supreme Court Act 1970 (NSW) s 44.

[xiii] Australian Constitution s 73.

[xiv] Peter Marshall ‘A Comparative Analysis of the Right of Appeal’ Duke Journal of Comparative and International Law 22(1) 1, 3.

[xv] Alexander Lewis ‘Ruling rendering NSW parliament powerless to compel witnesses used for the first time’ ABC News (Web Page, 13 March 2026) <https://www.abc.net.au/news/2026-03-13/witness-cites-court-win-for-no-show-nsw-inquiry-/106452662>.

[xvi] Marshall (n 14) 3.

[xvii] Parliamentary Evidence Amendment (Attendance of Witnesses) Bill 2026 (NSW).

[xviii] Ibid s 7.

[xix] Buckley (n 10) [20].