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Transcripts from the Prime Ministers of Australia

Transcript 29


Photo of Menzies, Robert

Menzies, Robert

Period of Service: 19/12/1949 to 26/01/1966

More information about Menzies, Robert on The National Archive website.

Release Date: 13/06/1955

Release Type: Statement

Transcript ID: 29

P R I V I L E G E C A S. E
MONDAY,' JUNE 13, 1955.
TO MEMBERS: This is forwarded with the
compliments of the Prime Minister. He trusts
it will be helpful and that you will make use
if it. P R I VI L E G EC A S. E

PRIVILEGE CASE June 13. 1955.
The Prime Minister, Mr. Menzies. today
made the following observations on the privilege case
dealt with by the Commonwealth Parliament last week:--
QUESTION: Who gave Parliament the right to deal with
breaches of parliamentary privileges?
ANSWER:. The Commonwealth Constitution did, by
Section 49. which reads:.-
' 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 Common..-
. Parliament has not thought it necessary
to declare any new powers, privileges and immunities.
but has been content to rest upon those already wellestablished
by the House of Commons over the course
of centuries.
k. OUESTION What is the most important of these
privileg. s. from a public point of view?

ANSWER: The privilege to speak freely in
Parliament on behalf of the electors without fear
or favour. This is the greatest of the Parliamentary
privileges, for without it Parliament would become
ineffective. The privilege does not exist as a sort
of personal property of the individual member nor is
he guilty of a selfish action when he seeks to defend,
it. The privilege is that of the people speaking
through their institution of Parliament. It must not
be forgotten that the vital conflict in the 17th
century was between the power and privilege of the
King and the power and privilege of the Pa-rliament.
It is only because that struggle was won by Parliament
that modern democracy has become possible. -If a
member-of Parliament can be threatened into silence
on matters which, otherwise. * Ihe would think it his
duty to lay before Parliament. then the most important
of the people's democratic rights has been ta-ken away
and the true function of Parliament threatened.
QUESTION: But why should Parliament act as the
judge in-the matter'when a breach of privilege is
ANSWER: In the United Kingdom and in
Australia anc*. as I believe, in all other 3ritish
countries, the Parliament always has-been the judge.
for the very good reason that it is constitutionally
the expressed-custodian of its own rights and
privileges.,. which. as I have said.. are the rights and
privileges of the electors.
QUESTION-Could Parliament. on this occasion.
by some existing procedure. have delega-ted its
-aut-hority to a Court?

ANSWER: No. Assuming that it could properly make
such a law ( as to which I offer no opinion) Parliament
would have had to legislate to define an offence and to
invest some Court with the jurisdiction to investigate
that offence. Clearly, any such law could not be made
to apply to the case of Browne and Fitzpatrick except
by retrospective operation; which would have been
contrary to one of our most deeply-held principles of
criminal jurisprudence.
QUESTION: Were these men denied a fair hearing?
ANSWER: All the facts are to the contrary. They
appeared before the Committee of Privileges which,
I stress, is an all-party Committee and, thereafter,
fully and frankly admitted what they had done and. the
reasons why they had done it. In a substantiallsense
they pleaded guilty. This is made manifest by the
unanimous report of the Committee which was unanimously
agreedwith by the House. I do not want to re-state
all the facts in the report but those who read it will
see that Fitzpatrick agreed that the idea in printing
the.. newspaper articles about Mr. Morgan wasto
intimidate him and to prevent him saying things in
Parliament. This statement was made by Fitzpatrick
on several occasions. When asked by one member of the
Conmmittee whet~ her, he realised that the documents would
affect Mr. Morgan's reputation very seriously.
Fitzpatrick replied that that was why it was put out.
So far as Browne was concerned
Fitzpatrick stated quite openly the reason-why he had
employed ; rowne ' I told him to get stuck into him
( Morgan). That is what I employed him for'.
The witness. Browne. admitted to being
the author of the articles and to having been paid
for writing them. No attempt was made to prove the

charges against Mr. Morgan. In answer to the
Committee. Mr. Browne said that he did not have
the proof with him, nor did he possess the proof
at the time the article was written. Mr.
Fitzpatrick. when asked ' Have you any personal
evidence of. any charges against. Mr. Morgan'.,
replied: ' No_. The Committee found,, as it was bound to
find on the undisputed evidence, that a deliberate
attempt had been made to misrepresent Mr. Morgan
and that both Fitzpatrick and Browne had been
guilty of a serious breach of privilege by
publishing articles intended to influence and
intimidate a member ( the Honourable Member for
Reid) in his conduct in the House and in
deliberately attempting.. to impute corrupt conduct.
as a Member ( Mr. Morg. an) for the express purpose
of discrediting. and silencing him.
There is, so far as .1 know, nothing in
the general principles of the law which prevents
somebody accused of an offence from pleading
guilty and being dealt with accordingly.
OUESTION: Did the House . of RepOresentatives act
hastily ifn this matter?
ANSWER: It did not. The unanimous report of the
Committee was tabled during, the evening session on
Wednesday, June 8th. Consideration of it was,
deferred until next day. so that members might have
an opportunity of reading it. I, myself. though
much pressed with work. devoted several hours to
studying the report and past Parliamentary practice.
The matter. in fact, did not come on for discussion
until the afternoon of Thursday, June 9th.. when.
as Prime Minister. I moved that the house agree with
the report of the Committee. This was discussed for
some time and'the motion was then unanimously carried.

I thenx prooosed a motion that Fitzpatrick and Browne
be notified to attend the House at 10 a. m. on Friday
June 10th. They attended and they were heard one
of them Browne at considerable length. It was
necessary that they should be both seen and heard in
a matter of such gravity.
When Browne's speech was concluded. I
suggested a suspension of sittings so that members
could consider the material put before them.
I immediately had a discussion with my
Cabinet. because it will be agreed that a Government
should be prepared to give some lead in such a matter.
I then had a meeting of a few minutes with the Govern
ment parties in which I told them what I was proposing
to do. There was no question of action on party lines-
Members were. obviously going to exercise a judicial
function and could make their own decisions. 3ut. at
the same time. my general impression was that. at any
. rate., most Government supporters agreed with the
Government's view. I understand ( I may have been
misinformed) that the Executive of the Opposition
also had discussions. The debate was resumed on a motion by
myself. for the imposition of a term of imprisonment
and an amendment by Dr. Evatt favouring the imposition
of very substantial fines. It will be observed that
we both thought a serious offence had been properly
proved, and deserved se. rious punishment. The only
difference was as to the nature of the penalty. The
' debate continued on a high and responsible level:
with the possible exception of one rather unfortunate
and intemperate speech. with the final decision not
being reched until almost the end of the afternoon
session, The vote of the House was overwhelmingly
in favour of imprisonment, members of all four parties
forming part df the majority.

OUESTION Would a reprimand have been an adequate
punishment in this case?
ANSWE.: Hiaving regard to-what I have explained
as the nature of the offence and of the finding
-iade by the Committee, a-nd unanimously approved by
the House, a mere reprimand would have been
farcical. It would have amounted to a statement
by the House of Representatives that a conspiracy
to silence a member of Parliament was a trifling
matter. It should not be forgotten that the
freedom of Parliament and of every member in it
is vital to the continuation of free self--government.
OUESTION: Would not a fine have been preferable to
committal to orison for contemot?
ANSwEr Under the disclosed circumstances which
indicated that Browne had been employed to do vha
he did. it is in the highest-degree unlikely that
any fine imposed upon him would have been paid by
him. Indeed. Fitzpatrick had. before the Committee,
declared that he assumed full responsibility for the
whole matter. To impose a fine would, therefore.
have meant that no punishment would have been
inflicted upon Browne at all, while: so far as
Fitzpatrick was concerned, even a substantial fine
would, not have caused him any notable inconvenience.
I should add that the power of the House
to impose a fine is extremely doubtful, having been
denied by several leading constitutional authorities.
As the Constitution points out. the powers are those
of the House of Commons, The House of Commons has
not imposed a fine for breach of privilege since
1666 but has invariably proceeded, either by
committal to custody or by reprimand: in appropriate
cases. In one of the most recent cases only a few
years ago where a Member of Parliament was found
guilty of a serious breach of privilege, the House of
Commons actually expelled him from his seat in the

QUESTION-: Are the privileges and immunities of
Parliament inconsistent with, or a threat to. the
freedom of the Press?
ANSWER: No. the simple historic fact is that
the modern protection of the freedom of Parliament
and the equally modern freedom of the press have
gone hand in hand. One cannot exist adequately
without the other. Parliament makes no challenge
to the right of newspapers or citizens to
criticise Members of Parliament, closely or even
bitterly. We are in a position to be attacked,
and to accept as well as to use free speech. No
Parliament see'kst. o restrain such freedom.
But the case is different when an
attempt is made to prevent free speech on the part
of a people's representative in Parliament. No
reputable newspaper either demands or expects
the right to silence a Member of Parliament.
speal-ing in his place in the House.
QUESTION: Hbving regard to the great public
interest in this matter, should Parliament address
itself to a review of the machinery for declaring
and enforcing its-jfivileges?
ANSWER: There could be no possible objection
to this course. Indeed, I would welcome it. and
will promote, in co-operation with the Opposition,
the fullest consideration of it during the next
sittings. But it should be-understood that no
future law, ought to be made to operate

Transcript 29