NSW’s top prosecutor, Sally Dowling, and NSW Legislative Council prez (Ben Franklin) formed an unlikely alliance against the Cth Attorney General in a recent Supreme Court hearing that initially placed the two as adversaries.

The case concerns the long-standing, and highly publicised dispute between Dowling and District Court Judge Penny Wass, who made a submission critical of the DPP to a parliamentary committee at the end of last year (see further: Welcome to Country).

The Court of Appeal ultimately confirmed that Dowling could use Wass’ submission as a ground for disqualification on the basis of apprehended bias in an historic sexual abuse trial. The trial, which so far has sat for 13 days, has since been adjourned.

It is understood that similar recusal applications have been made by the DPP in a number of other proceedings before Wass.

Maybe the problem has been solved with Wass’ recent appointment as the Dizzo’s defamation list judge.

The use of the parliamentary submission was initially disputed by the NSW Legislative Council, which argued that to do so would be in breach of Article 9 of the Bill of Rights – an English law hand-me-down from 1689 which protects freedom of speech in parliament.

The NSW and Commonwealth AGs both joined the fray, each making substantive submissions.

However, before the final trial took place, the NSW Prez changed his position, ultimately agreeing with the DPP’s argument that if Article 9 did prevent reliance on the Judge’s submission, it would impair the institutional integrity of the court, and therefore to that extent be invalid.

The President therefore argued against the Court administering relief, on the basis that as there was therefore no longer a dispute, the Court had no jurisdiction, or, in the alternative, that the court should exercise its discretion to refuse relief to prevent fragmenting the criminal process. Both of these arguments were rejected.

With the issue of jurisdiction resolved, and the NSW AG siding with Parliament on the matter of Article 9, the Commonwealth AG was left as the only party arguing that Article 9 does prevent reliance on Wass’ submissions and does so without breaching Ch III of the Constitution.

In support of this, they raised a number of arguments, with the combined effect of extending the trial by an extra day. Whilst some arguments were better than others, some were particularly fragile, such as that section 49 of the Constitution, which is inherently defeasible, is in fact ‘absolute’.

This pattern led to subtle reproaches from the bench.

“It was said that would occur ‘on a bene esse basis’, as though a Latin incantation would assist.”

Despite this, no costs were ultimately sought.

Separately, at the end of 2025, the NSW Legislative Council President had also referred the matter to the parliamentary Privileges Committee, which seeks to investigate whether adducing evidence of the Judge’s submission is breach of parliamentary privilege.

The status of the separate investigation by the Privileges Committee remains unknown.

DPP v President of the Legislative Council of NSW [2026] NSWCA 20