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R v Richards; Ex parte Fitzpatrick and Browne

R v Richards; Ex parte Fitzpatrick and Browne

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Case Copied 24 June 1955 26 min read

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THE QUEEN RICHARDS; Ex PARTE FITZPATRICK AND BROWNE Constitutional Law Cth.)-Parliament-Privileges-Enforcement-Nature of function

-Judicial power-Whether open to Parliament having regard to structure of and division of functions under Constitution-Contempt-Power of Parliament to judge what constitutes--Speaker's warrant consistent on face with breach of MELBOURNE, acknowledged privilege-Conclusiveness-The Constitution (63 &64 Vict. C. 12), June 22, 23, SS. 49, 50, Chap. III.

Under S. 49 of the Constitution the Senate and House of Representatives possess the powers, privileges and immunities of the House of Commons at the establishment of the Commonwealth, Parliament having made no declara- tion within the meaning of the section. The section operates independently of S. 50 and is not to be read down by implications derived from the general structure of the Constitution and the separation of powers thereunder. such privilege is that of judging what is contempt and of committing therefor. If the Speaker's warrant is upon its face consistent with a breach of an acknow- ledged privilege it is conclusive, notwithstanding that the breach of privilege is stated in general terms.

Case of the Sheriff of Middlesex (1840) 11 Ad. &E. 273 [113 E.R. 419]; Dill v. Murphy (1864) 1 Moo. P.C.C. (N.S.) 487 [15 E.R. 784]; Speaker of the Legislative Assembly of Victoria v. Glass (1871) L.R. 3 P.C. App. 560, followed.

CASE referred by the Supreme Court of the Australian Capital Territory.

Raymond Edward Fitzpatrick and Frank Courtney Browne were taken into custody on 10th June 1955 by Edward Richards in pursuance of warrants issued by the Speaker of the House of Representatives of the Parliament of the Commonwealth. The

92 CLR 158

warrants in all material parts were in similar terms, that relating to Raymond Edward Fitzpatrick being as follows :-

"The Parliament of the Commonwealth.

THE QUEEN

House of Representatives. To Edward Richards, the person for the time being performing the duties of Chief Commissioner of Police at Canberra in the Australian Capital Territory :-

Whereas the House of Representatives did, on the tenth day of June, 1955 agree to the following resolution :-

1. That Raymond Edward Fitzpatrick, being guilty of a serious breach of privilege, be for his offence committed to the custody of the person for the time being performing the duties of Chief Com- missioner of Police at Canberra in the Australian Capital Territory or to the custody of the keeper of the gaol at such place as Mr. Speaker from time to time directs and that he be kept in custody until the tenth day of September, 1955, or until earlier prorogation or dissolution, unless this House shall sooner order his discharge.

2. That Mr. Speaker direct John Athol Pettifer, Esquire, the Serjeant-at-Arms, with the assistance of such Peace Officers of the Commonwealth as he requires, to take the said Raymond Edward Fitzpatrick into custody in order to his being committed to and kept in custody as provided by this resolution.

3. That Mr. Speaker issue his warrants accordingly.' These are therefore to command you…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1955] HCA 36
Decision Date: 24 June 1955

CaseChat Overview and Summary

This case concerned applications for writs of habeas corpus brought by Raymond Edward Fitzpatrick and Frank Courtney Browne, who had been taken into custody pursuant to warrants issued by the Speaker of the House of Representatives. The warrants were based on resolutions of the House finding the applicants guilty of a serious breach of privilege and committing them to custody. The matter was referred to the High Court of Australia by the Supreme Court of the Australian Capital Territory.

The central legal issues before the High Court were whether Section 49 of the Constitution, which grants the Senate and House of Representatives the powers, privileges, and immunities of the House of Commons at the establishment of the Commonwealth until otherwise declared by Parliament, authorised the House of Representatives to judge and punish breaches of privilege in the manner it had done. Specifically, the court had to determine if this power was limited by the constitutional structure and division of powers, particularly Chapter III concerning the judicial power, or by Section 50 of the Constitution, which allows each House to make rules for the exercise of its powers and privileges. The applicants argued that the House's actions constituted an exercise of judicial power, which was exclusively vested in the courts under Chapter III, and that Section 49 should be read subject to this division of powers.

The High Court held that Section 49 of the Constitution operated independently of Section 50 and was not to be read down by implications derived from the general structure of the Constitution or the separation of powers. The Court affirmed that, under Section 49, the Parliament of the Commonwealth possessed the powers, privileges, and immunities of the House of Commons at the establishment of the Commonwealth, as Parliament had not made a comprehensive declaration of these privileges. A fundamental privilege of the House of Commons, as established by English law and affirmed by Privy Council decisions in cases like *Dill v. Murphy* and *Speaker of the Legislative Assembly of Victoria v. Glass*, was the right to judge what constituted contempt and to commit for it by a warrant stating the contempt in general terms. The Court found that if a Speaker's warrant was, on its face, consistent with a breach of an acknowledged privilege, it was conclusive and could not be challenged by the courts, even if the breach was stated generally. The Court rejected arguments that the Parliamentary Papers Act or the Parliamentary Proceedings Broadcasting Act constituted a declaration of privileges sufficient to limit the operation of the latter part of Section 49, finding these Acts to be minor and subsidiary, and more appropriately falling under Section 51(xxxix) of the Constitution. The Court concluded that the powers conferred by Section 49, including the power to commit for contempt by a general warrant, were not strictly judicial but were considered essential for the legislature's protection and were therefore not rendered invalid by the separation of powers doctrine.

Consequently, the High Court found that the warrants issued by the Speaker were valid and conclusive, demonstrating that a breach of privilege had occurred and that the applicants were lawfully held. The applications for the writs of habeas corpus were therefore refused.

Orders