By Paul Gregoire and Ugur Nedim
On 9 December 2025, the New South Wales Director of Public Prosecutions Sally Dowling SC called for the removal of Judge Penelope Wass from presiding over a historic sex offending trial then before the NSW District Court, based “on ground of apprehended bias”, after the judge had made a 28 November submission to a NSW Legislative Council committee that was highly critical of the DPP.
The judge made the submission to the NSW Legislative Council Portfolio Committee No 5 – Justice and Communities, in respect of an inquiry into “identity protections for proceedings involving children”. And after an edited version of the submission was published on the committee website on 4 December, it went on to garner media attention.
The hearings relating to the historic sex offending in the judge-alone case took place from early November to December 2025, and they involved an elderly defendant, with various mental and physical conditions, with charges against him relating to crimes committed in the 1950s, which were brought by six of his elderly siblings, whose names were the subject of nondisclosure orders.
However, a contention was raised by the NSW Legislative Council president in regard to whether the judge should submit a recusal order, as doing so may breach article 9 of the UK Bill of Rights 1689, which protects free speech in NSW parliament. This mechanism is also known as parliamentary privilege, and it permits MPs to speak freely in the chamber without fear of court reprisals.
The question of law went before the NSW Court of Appeal (NSWCA) in February 2026. Both the NSW and federal attorney generals had intervened in the matter, as per section 78A of the Judiciary Act 1903 (Cth). And what was to be determined by the court was whether article 9 would block such submissions in general, while questions regarding the merits of the submission weren’t involved.
The right to free speech in parliament
The NSW DPP sought declaratory relief from the NSWCA, over her wanting to rely upon the judge’s submission about herself to the parliamentary committee in seeking a recusal order based on apprehended bias involving no infringement of parliamentary privilege, or alternatively, if article 9 of the Bill of Rights does have this effect, then that law impedes the institutional integrity of the court.
However, the Legislative Council president then changed their position on consulting the authority in Kable and then asserted that article 9 does not prevent the NSW DPP from applying for the recusal order in respect of the Judge Wass submission, and nor did it prevent the judicial officer from considering the recusal order due to this specific submission.
The president added that the dispute didn’t prevent the declaratory relief being sought by the DPP. Yet the federal attorney general in intervening went on to oppose the relief sought, arguing that article 9 does prevent the tendering of the submission as reason for recusal, and this was due to other avenues being open to maintain integrity, as well as the operation of a constitutional power.
The three NSWCA justices presiding over the question of law then turned to the precedent set in the 1996 High Court case Kable versus the NSW DPP, which provided that chapter III of the Australian Constitution creates a national integrated court system, and this means that state parliaments cannot confer function on courts that have potential to interfere with federal institutional integrity.
The federal AG argued that Kable didn’t preclude parliamentary privilege from preventing the inclusion of the judge’s submission, as there are “at least four broad avenues” that can be relied upon to deal with apprehended bias at trial. And because these other avenues could result in ending an apprehended bias issue, there was no reasons to erode article 9’s application on parliament.
These other avenues included approaching a judge at chambers, evidentiary basis for the submission being sought via other means, as well as applying for a stay or a judicial review. But the director and the president submitted that these four avenues were no alternative to the tendering of the Judge Wass submission, as they inevitably triggered the same concerns when properly examined.
The three justice bench summed up their conclusion on this matter, in stating that “constitutional prohibitions cannot be avoided by doing indirectly what cannot be done directly” and further, concluded that article 9 doesn’t “prohibit the tender of privileged material solely for the purpose of establishing what was said in, or submitted to, parliament”.
Constitutional concerns
The three justice bench then considered the assertion that section 49 of the Australian Constitution would prevent the NSW DPP from relying on the Judge Wass submission, when applying for judge recusal.
Section 49 asserts that the “powers, privileges, and immunities of the Senate and of the House of Representatives” are to be those declared by the parliament. However, until such declarations are made, Australian parliaments are to take on the default position of the UK House of Commons in 1901.
The Australian attorney general then argued that section 49 reinforces the article 9 free speech protections. Yet the three justice bench of the NSWCA disputed this, because whilst the provisions of section 49 begin with an absolute starting point, this is then open to complete revision. So, as all aspects of section 49 can be changed, it therefore, presents no immutable standard.
And as chapter III of the Australian Constitution stipulates that this nation’s courts must be free from bias or apprehended bias, article 9 cannot be seen to be leading to outcomes that are perceived as bias.
The operation of article 9
The Imperial Acts Application Act 1969 (NSW) ensures that the UK Bill of Rights 1688 applies in terms of NSW parliament. Article 9 of the bill maintains that freedom of speech in parliament is not later to be impeached or be the subject of any court proceedings. And a body of law has been built up over the centuries around the operation of article 9.
The NSWCA justices then explained that there are two ways that article 9 can be confined, despite its unconfined operation, when it comes to intruding upon the just operation of a trial. So, while article 9 has broad application, it shouldn’t be considered to breach constitutional norms, and further, the federal jurisdiction’s preservation of the courts, should limit the state operation of article 9.
Orders of the day
On 5 March 2026, the NSW Court of Appeal three justice bench, Justices Mark Leeming, Kristina Stern and John Griffiths, found that statutory relief should be granted. And neither party sought court costs.
Their Honours then made the following declaration:
“Declare that article 9 of the Bill of Rights does not operate validly to prevent the director from making (and the District Court from determining) a recusal application on the ground of apprehended bias by reference to the judge’s submission dated 28 November 2025 and in accordance with the written submissions filed by the director on 9 December 2025.”
