Separation of powers is an important principle, it stops an individual, or a small group of individuals acting as judge, jury and executioner. Strong separation of power promotes a nation of laws, rather than a nation of men and protects against arbitrary government. I was surprised to read of Frank Browne in Michael Fullilove's collection of speeches. Browne was accused, sentenced and gaoled by the Australian Federal Legislature.

Frank Browne

During the mid-fifties Browne ran the free weekly newspaper, Bankstown Observer . He was also known for printing and distributing a pamphlet called Things I Hear which Fullilove described as muckraking in Drudge Report style. In May 1955 Browne wrote an article titled, "MHR and Immigration Racket". Browne alleged that the member for Reid, Charles Morgan had engaged in immigration racketeering. Morgan claimed that the newspaper article should be referred to the House of Representatives Standing Committee of Privileges for investigation. This committee investigated Morgan's claims, and decided that a breach of privilege had occurred and that Browne, along with the newspaper's owner Raymond Fitzpatrick, should be required to appear infront of the committee.

The House of Representatives heard the charges against Browne and Fitzpatrick and on a motion from Robert Menzies, the house voted that the two men serve ninety days in gaol each. This is the only time that Federal parliament has gaoled an Australian citizen. Though DIMIA has been skating around this recently, if Australian citizens caught in the indefinite detention debacle can be called gaoling. Browne protested his handling at the hands of parliament;

It is considered the right of every Australian citizen charged with an offence that he, first must be charged; and secondly; he must have legal representation. That is denied to me even here. He must have the case against him proved, and he need not answer incriminating questions. There there is the fact that he must have the right to cross-examine his accuser. And lastly, he must have the right to appeal. There is also another inherent right which is always observed in every court in this Commonwealth, and every court where there is any reasonable conception of justice - that he shall present his case in an atmosphere which shall not have had the effect of prejudging him.

Browne continued with a warning to Parliament;

I say that, if this Parliament establishes a precedent and takes the right of punishment into its own hands, the rights that have been fought for since 1215, and even before, are seriously endangered. The right of free speech is endangered. You talk about intimidation, sir. You visit exemplary punishment and what happens? There will not be a journalist in the land, not a newspaper proprietor in the land, who will feel free ...

The High Court backed the legislature using Section 49 of the Constitution. From the case ;

Constitution. The Constitution in s. 49 provides : - "The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth."

The case goes on to define privilege, contempt and the power of the House of Commons and its relation to the House of Representatives through Privy Council cases.

For s. 49 says that, until the powers, privileges and immunities of the House are declared by Act of Parliament, the powers, privileges and immunities of the House shall be those of the Commons House of Parliament of the United Kingdom at the establishment of the Commonwealth.

The language is such as to be apt to transfer to the House the full powers, privileges and immunities of the House of Commons. As Lord Cairns has said, an essential ingredient, not a mere accident, in those powers, is the protection from the examination of the conclusion of the House expressed by the warrant.

So the legal argument was, the House of Common can do it, and since there is no Australian federal act saying parliament cannot do it, federal parliament were not committing an illegal act. But what of the doctrine of separation of powers?

Then it was argued that this is a constitution which adopts the theory of the separation of powers and places the judicial power exclusively in the judicature as established under the Constitution, the executive power in the executive, and restricts the legislature to legislative powers. It is said that the power exercised by resolving upon the imprisonment of two men and issuing a warrant to carry it into effect belonged to the judicial power and ought therefore not to be conceded under the words of s. 49 to either House of the Parliament.

It is correct that the Constitution is based in its structure upon the separation of powers. It is true that the judicial power of the Commonwealth is reposed exclusively in the courts contemplated by Chap. III.

It is further correct that it is a general principle of construction that the legislative powers should not be interpreted as allowing of the creation of judicial powers or authorities in any body except the courts which are described by Chap. III of the Constitution. Accordingly, it is argued that a strong presumption exists against construing s. 49 in a sense which would enable the particular power we have before us to be exercised by the Senate or the House of Representatives.

It was pointed out that in the case of the Inter-State Commission s. 101 had received a construction which made it impossible to invest the Inter-State Commission with the character of a court and confide to it judicial functions, because it was not a body which fell within Chap. III. That was relied upon as an instance or example of the kind of construction or interpretation which we were urged to adopt in the case of s. 49.

The High Court chose an explicit reading of Section 49, which enabled the House of Representatives to adopt all the powers of the much older, and informal British House of Commons. The constitutional ineptitude of the "Bearded Men" strikes again. The judge writes;

Accordingly, all the arguments which have been advanced for giving to the words of s. 49 a modified meaning, and the particular argument for treating them as not operating, fail. We are therefore in a position of having before us a resolution of the House and two warrants which conclusively show that a breach of privilege has been committed and the two persons who seek release are properly held by the person to whom these proceedings are addressed, Mr. Edward Richards.

It follows that the applications for the writs of habeas corpus should be refused and we accordingly refuse them.

ORDER. Applications refused.

Australia's parliamentary system has weak separation of powers anyway, but in the Browne and Fitzgerald incident it wielded absolute power. The legislature made itself King.

More Information

• national Archives of Australia: Fact Sheet 204