A mace to swat two blow-flies: interpreting the Fitzpatrick and Browne privilege case.

Despite its singular character, the Fitzpatrick and Browne privilege case of 1955 remains poorly understood and remembered. Though the Commonwealth parliament imprisoned two citizens of a democracy on a vote of members of the House of Representatives without recourse to the law, most general histories of Australia pass it by, perhaps because other events of the Cold War--the Petrov espionage drama and the split in the Australian Labor Party (ALP)--seem more compelling. The civil liberties implications of the case were sufficient to compel its inclusion in Enid Campbell and Harry Whitmore's 1973 work, Freedom in Australia. Yet at the time the privilege case was ignored by Brian Fitzpatrick's Australian Council of Civil Liberties. Today the 1955 Bankstown Observer privilege case is overlooked by the nation's leading civil liberties' advocates. (1) It did not, for instance, appear in George Williams' recent book on the need for a Charter of Rights in Australia. (2) Though references to the privilege case appear in the memoirs of various politicians, in Gavin Souter's history of Commonwealth Parliament, in Clem Lloyd's account of the media and parliament, and in an unpublished thesis on Allan Fraser, one of the few parliamentarians to emerge from the affair with any credit, the secondary literature about the case remains truncated. (3) The curiously delayed release of the relevant archival documents in 2001 was expected to encourage scholarly attention to Fitzpatrick and Browne. Yet the only significant addition to the literature was provided by Harry Evans, the Clerk of the Senate, who in large part used the new evidence only insofar as it allowed him to rebut the earlier account of his erstwhile parliamentary colleague, Frank Green. (4)

This article seeks to understand the motivation of the 1955 privilege case by employing this new (and some old) evidence to revisit the historiographical parameters of Fitzpatrick and Browne, provided in large part, by Harry Evans on the one hand and Frank Green on the other. This is not to revisit the constitutional propriety or background of the stand taken by Commonwealth parliament. Though there may well be doubts about the independence of Sir Owen Dixon's High Court from an executive led by the eminent judge's friend and former pupil (5), the High Court view that parliament inherited the right to imprison from the UK legislature is sustainable. (6) Harry Evans is right. This was a case of contempt, a little known aspect of parliamentary procedure and a sanction dating back to the origins of representative government in England and to the Bill of Rights in 1689. (7) Speaking at the Twenty-First Summer School of the Australian Institute of Political Science in Canberra, five months before the parliamentary debate about the Bankstown Observer case, Gough Whitlam eloquently spelled out its rationale. In the process he foreshadowed the reasons for which he would subsequently cross the floor with three other Australian Labor Party (ALP) members to vote for the imprisonment of Fitzpatrick and Browne. Whitlam argued:

 
   Parliament has been our great liberating force [...] There is no 
   freedom without equality. To redistribute and equalise liberty has 
   been one of the principal functions of Parliament. Parliament alone 
   can give equality of opportunity and thereby increase liberty for 
   all. If we are to have economic equality of opportunity, which is 
   the next stage in the advance of liberty, we must have effective 
   parliamentary government and, accordingly, dispense with fetters on 
   Parliament rather than contrive them. (8) 

Here we are concerned with explaining why the House of Representatives acted as it did, employing little known punitive powers to gaol two citizens, one a newspaper proprietor, the other a journalist, effectively for criticising a parliamentarian. Whatever the validity of the argument that ultimately all freedoms spring from the independence of parliament, it was equally true, as Allan Fraser, a crusading Member of the House of Representatives (MHR), suggested at the time, that the press invariably intimidated parliament. Witness the vigorous campaign conducted by the national media against Prime Minister Chifley's plans to nationalise the private trading banks in 1947. What made this any different?

The Offending Bankstown Observer Story

Fitzpatrick and Browne's imprisonment followed a complex sequence of events. On 3 May 1955, Charles Morgan, MHR for Reid, a western Sydney seat that included the rapidly developing centre of Bankstown, informed Commonwealth Parliament that an article appearing on 28 April 1955 in the Bankstown Observer, a local throwaway newspaper, impugned his personal honour and questioned his fitness to remain a member of parliament. The offending article made reference to certain pre-war "immigration rackets" in which, purportedly, he had been involved. It was alleged that Morgan (who was a solicitor in private life) had corruptly accepted fees as an immigration agent to allow prospective migrants of non-British background to jump queues and migrate to Australia. That the allegations related to 1939, before Morgan was an MHR and were therefore unrelated to his career as parliamentarian, was not emphasised. It was imputed that Morgan continued to derive income from such sharp or illegal practice. In response, it might well have been expected that Morgan would seek redress in a civil court of law. No writ for defamation, however, was forthcoming. Instead Morgan argued that Ray Fitzpatrick, the rough-hewn and ill-educated proprietor of the Bankstown Observer and Frank Browne, his editor, had sought to intimidate him, to bludgeon him into silence, and therefore influence his work as a member. Seen in this light the matter assumed the dimension of a contempt of parliament.

Frank Courtenay Browne, the author of the offending article, was also well known as the proprietor of Things I Hear. This was a notorious subscription newsletter known for its penchant for scandal. More than likely Browne used it to blackmail individuals into paying for "Public Relations in Reverse". (9) "Brownie" was an exuberant character, indeed a hard-drinking larrikin who was not cowed by the sequence of events brought on by Morgan's complaint. In response to the contempt charge, on 10 June 1955 he delivered a stirring speech about the need for free speech from the bar of the House. "I say that, if this Parliament establishes a precedent and takes the right of punishment into its own hands", Browne thundered, "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." (10) Unsurprisingly, much of the fourth estate agreed and there was a spirited media campaign criticising the decision to gaol Fitzpatrick and Browne. Craving further notoriety, Browne emerged from gaol in September 1955 to establish the basis of Australia's first post-war Nazi Party. (11)