R v Richards; Ex parte Fitzpatrick and Browne

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.