The Coercion Act court case, May 18, 1895.

*THE WORKER*

BRISBANE, MAY 18, 1895.

The Suspension cases.

Action for £2000 Damages.

Plaintiff Non-suited.

Supreme Court Proceedings.

{FYI: Peace Preservation Act}

The circumstances attending the passage through the Queensland Legislative Assembly of the Peace Preservation Act – better known as the Coercion Act – must be still within the vivid recollection of the people of this colony. It will be remembered, too, that on that occasion eight members of the Parliamentary Labour party (Messers. Browne, Reid, Turley, Dawson, M'Donald, Dunsford, Glassey and Kerr) were suspended from service of the House at the instance of an undignified and bullying Chairman of Committees, Mr. W. Stephens, for alleged disorderly conduct, without either one of them or any of their friends, in spite of repeated attempts, being allowed to be heard in explanation. This scandalous treatment at the time merited the warm censure of such journals as the Courier, which can safely be said to be in no way friendly disposed to the Labour Party; and so strong was the feeling in Brisbane that within the short space of four days two monster public meetings were held in the Centennial hall, at which resolutions condemnatory of the action of the Government were passed. Similar meetings and similar resolutions were passed in every centre of importance in the colony. As intimated at the time, it was determined by Parliamentary labour party to appeal for funds, and, notwithstanding the exceptionally bad times, this appeal met with a most generous response, about £600 having been subscribed up to date.

The case has been put off from time to time at the instance of the Crown Law authorities. On Monday morning last the proceedings were opened in the Supreme Court before his Honour Chief Justice Griffith and a special jury of four. The large amount of interest manifested in the case, in which is involved a great constitutional question, was evidenced by the fact that the courtroom and the public gallery was crowded from the moment the judge took his seat on the bench until the close of the proceedings. Members of the legal profession were largely represented in the auditorium, and there was a good sprinkling of members of parliament. Labour members Rawlings, Reid, Cross, Wilkinson, Turley, Hardacre, Fisher, and Dawson, were amongst the number. Some were there as witnesses; others as interested onlookers.

Seated at the large table on the floor of the courtroom at the right of the astute judge was Mr. F. Lilley, and with him were Messers. Powers and Drake, M.M.L.A., the counsel for the plaintiff. At the end of the table, quiet and unassuming, looking somewhat pale after the recent operation to his leg, sat labour member Browne, of Croydon, whom case, in conjunction with that of Labour member Reid's, was taken as the test case. On the left-hand side of his Honour sat the Attorney General, and with him Messers. Virgil Power and Shand, the counsel for the defence. Mr. A. S. Cowley, the Speaker of the Legislative Assembly and defendant in the present action, occupied a seat close alongside his legal advisers. He wore a neat bouquet in his button hole. A supercilious air, accompanied by an occasional sarcastic smile, lit up his countenance as the learned judge, with his keen and penetrating intellect, endeavoured to sift out from Barrister Lilley's opening address to the jurors such matters as appeared to him to be irrelevant to the cause of action. His manner was certainly unbecoming the dignity of one occupying the position of Speaker, and was the subject of frequent comment amongst the auditors.

Little difficulty was experienced in the selection of a jury. There were but three challenges, and these came from the counsel for the plaintiff. The following are the names of the gentlemen empanelled; - Messers. G. M. Carter, R. J. Wilson, W. B. Wilson, and G. J. Morrison.

Mr. C. Powers rose and reviewed the statement of claim which his side set up. It sets forth that the plaintiff Browne was, on the 12^th September, lawfully in the Assembly for the purpose of consulting, deliberating, and voting, and whilst so lawfully there the defendant gave the plaintiff into the custody of the Sergeant-at-arms, and assailed and forcibly expelled him or caused his assault or his expulsion, and unlawfully hindered and prevented the plaintiff, or caused him to be hindered or prevented from attending at the said meeting and from consulting, treating, and voting upon the business aforesaid, and that for a period of one week thereafter he was prevented from attending the meeting of members of the Assembly, assembled for the purpose of the despatch of the business of Parliament. £2000 damages were claimed.

The statement of defence set forth a denial by the defendant that he did, save as therein after appearing, lawfully, or otherwise, give the plaintiff into the custody of the Sergeant-at-arms, assault or forcibly expel, or cause him to be expelled, or that he hindered him from attending the sittings of the Assembly; that the plaintiff was guilty of disorderly conduct, and of disregarding the authority of the Chair, that he was warned, the proceedings suspended, and the defendant, as Speaker, resumed the chair. The defendant denied that the plaintiff, on being named, immediately desisted from his disorderly conduct, that Acting Chairman made a charge against the plaintiff on the Speaker resuming the chair, that he (the defendant) did not give the plaintiff an opportunity of being heard, or that the plaintiff sought or desired that opportunity. The defendant admitted that he directed the mover of the motion for the suspension to abstain from debating the question, but denied, save as aforesaid, that he refused to allow the mover or the plaintiff, or any other member to speak to such motion, or that any member desired to speak to such motion. If, which the defendant denied, the facts were as stated in the statement and claim – that no opportunity for debate was allowed, the defendant claimed that no member moved that his ruling be disagreed with.

Barrister Lilley then addressed the jury at considerable length. He alluded to the gravity of the issues at stake, and pointed out that it was of the utmost importance to all of them that when they sent their representatives to the Houses of Parliament, no matter what political opinions they held, they should have the right to express these opinions before the Assembly and take part in its debates and deliberations. He was proceeding to relate the circumstances which occurred in committee and which led up to the suspensions, when his Honour ventured to presume that Mr. Lilley was merely giving a historical resume' of the matter, to which Mr. Lilley replied that he was going to offer proof of what took place in Committee, and submitted that he was entitled to go into everything that took place while the acting-chairman was in the chair. The Attorney-General here rose and announced his intention of objecting to all evidence of that kind, whereupon Mr. Lilley and his Honour entered into a long argument as to the propriety of relating the circumstances which occurred in committee, in the course of which various authorities in support of his contention were quoted by Lilley. It resulted in his Honour stating that he could not stop Mr. Lilley opening in the way he proposed, but at the same time it was, in his opinion, a most unusual course to pursue. Mr. Lilley, who clung most tenaciously to his point, continued to relate the instances leading up to the alleged disorder, as if nothing had occurred. It was not long, however, till his Honour entered into another argument with him, and later on the Attorney-General rose and applied to have the case struck out, resting his plea on the nature of the jurisdiction. He contended that all the authorities cited by his learned friend went to support the contention that the Standing Order on which the resolution for suspension was based was within the powers of the Assembly to pass, and that being so the resolution having been passed by the House, neither his Honour nor the jury, nor any tribunal could question its propriety.

Mr. Lilley then tendered the Standing Order of the Assembly, and called Mr. W. H. Browne as the first witness. Browne had answered the usual preliminary questions, and was being examined as to what took place in committee when the Attorney-General again rose and objected to the admission of any such evidence. In answer to his Honour, Mr. Lilley agreed that this was a convenient question to argue the point as to the admissibility of evidence concerning what took place prior to the Speaker taking the chair.

The Attorney General based his objection on the ground that it was inadmissible against the Speaker and that it was irrelevant; further that this being a proceeding in which matters that took place are being questioned, the court cannot inquire into any preliminary proceedings prior to the passage of the resolution in question, that resolution being one that it was competent for the House to adopt. Mr. Lilley submitted that the evidence was relevant, and at once proceeded to show how, by quoting numerous authorities and citing various instances. In this he was ably assisted by Mr. Drake, but in the course of argument his Honour pointed out that in all the cases quoted the legislature had assumed to do something they had no power to do. The Privy Council, he pointed out, had distinctly ruled that the legislature can pass standing orders. Provision was made in the Queensland Standing Orders for the present case, and the Assembly had passed a resolution which, under some circumstances, they had power to do. In the case of Taylor v. Barton in New South Wales the Assembly had taken unto itself a power which, under their Standing Orders, they did not possess. If that Assembly had possessed the powers given under Queensland Standing Orders 166 the case would have been exactly similar.

After further argument his Honour delivered his ruling on the point raised, which, briefly put, was that in his opinion no court of justice can review the decision of the chairman. If such a course were permitted, and the protection of the Speaker or officers, or indeed the members of the House, were to depend on the conclusions that the tribunal arrived at, an intolerable burden would be imposed upon members of the legislature in the discharge of their duties. He was, therefore, of opinion that the functions of the chairman under Standing Order 166 are quasi judicial, and that his decisions must be dealt with on the same footing as the decisions of a tribunal, and cannot be challenged in a court of law in a proceeding founded upon the erroneousness of the decision, the court of law not being constituted an appellate court for that purpose. Evidence of the proceedings in the committee antecedent to the report of the chairman to the House is not admissible. Under ordinary circumstances, therefore, and especially having regard to the novelty of the point, he would be disposed to admit the evidence, leaving the ultimate decisions to a later period of the case; but having regard to the unseemly conflict and even scandal that might arise if this court were to assert the right to sit as a tribunal of appeal from the determination of the Legislative Assembly on a question of fact as to a matter of which it is necessarily the primary judge, he thought he ought not, against his own opinion, to be the first judge to enter upon such an investigation. He therefore rejected the evidence.

On the resumption of the court on Tuesday morning, the examination of Mr. Browne was proceeded with as to what occurred after the Speaker was in the chair, and was followed by the evidence of Mr. C. Powers, M.L.A. Messrs. Morrison and Knight, pressmen, and Labour members Reid and Hardacre. Mr. Lilley said he had eight other witnesses but he did not propose to call them. He tendered the Votes and Proceedings of the Assembly dated October, 1892, as showing the practice of dealing with disorderly members, which were ruled inadmissible. The Attorney General, at this stage, submitted that no case had been made out by the plaintiffs, and he therefore moved for a nonsuit, giving arguments at length to support his motion. Messrs. Lilley and Powers contested the point. In the course of his argument Mr. Lilley ventured the opinion that it was contrary to natural justice that a member charged with disorderly conduct should not be heard, whereupon his Honour remarked; “You talk about it being contrary to natural justice that the member should not be heard. We know as a matter of common knowledge that in the House of Commons, the mother of Parliaments, they don't hear a member before they suspend him” Mr. Powers' contention was the court to inquire into the proceedings of the Assembly. This closed the argument, and his Honour reserved his decision until the following (Wednesday) morning.

THE JUDGE'S DECISION.

When the court resumed on Wednesday morning, his Honour at once proceeded to deliver judgement. It was a most comprehensive one, and reviewed the various points raised by counsel on either side. He held the opinion that when the Legislative Assembly was empowered to make standing orders for preserving order and for imposing the punishment of exclusion upon offending members it had also conferred upon it all authorities necessary to give effect to those powers, without which the powers themselves would be idle and nugatory. From the meaning of the law the fact of the offence must be ascertained and adjudged before the penalty can be inflicted.

The penalty is to be inflicted instanter so as to remove the obstruction, and enable the business of the House to be proceeded with. If then the House to not itself entrusted with the power of adjudication the pretended power of punishment would be mere mockery and insult.

For the validity of the punishment would depend not upon the facts as they appeared to the authority which is called upon to inflict it, but as they afterwards appear to some court of law.

He adopted and applied to the Legislative Assembly of Queensland, acting within its jurisdiction, the language of Parke B. delivering the judgement of the Court of Exchequer Chamber in the case of Howard v. Gossett with regard to the House of Commons; “At least as much respect is to be shown and as much authority to be attributed to these mandates of the House as to those of the highest courts of the country, and if the officers of the ordinary courts are bound to obey the process delivered to them, and are therefore protected by it, the officers of the house are as much bound and equally protected.” A different notion may have prevailed at one time with regard to the legislatures of what were somewhat contemptuously referred to as the dependencies. But he thought that any other view than that which he took was inconsistent with modern ideas as to the status and functions of the legislatures of the great self-governing colonial States of the empire. The Legislative Assembly of Queensland, it was true, had not all the attributes of the house of Commons, but it had some of them, and when it was discharging functions analogous to those of the House of commons, he was of opinion that the same respect should be paid to it, and the same effect given to its decisions as in the case of the House of Commons.

He held that the Legislative Assembly had under the standing orders authority to adjudicate upon a report of the Chairman of Committees and to pass sentence of exclusion. The error alleged in the present case, if it be one, was, in his opinion, one of procedure only of which he thought the Legislative Assembly themselves were the judges without appeal to that court. It is hardly necessary to point out that the practice of Parliament is a branch of knowledge of itself, of which successive Speakers have been distinguished exponents. He believed this was the first instance in which the ruling of a Speaker, which is subject to appeal to the House itself, had been sought to be submitted to the review of a court of justice.

He was not disposed to be the first judge to review a Speaker's decision on the construction of the Standing Orders – a function which required not only a consideration of the printed document, but an acquaintance with the law and practice of Parliament, with reference to which the Standing Orders themselves were framed, and without which the undertaking the duty would be ill-equipped for the task, although, if the Parliament's contention is valid, any justice sitting in the Small Debts Court may be called upon to discharge it. On the whole, therefore, he was of opinion that it was not within the province of that court to act as a Court of Appeal from the decision of the Legislative Assembly upon a motion to suspend a member under Standing Order 166, when it once appears, as it did in that case, that a report was made by the Chairman of Committees, upon which such a motion could be founded.

He did not think that, as a matter of law, the resolution was void by reason of the plaintiff not being heard in the House before it was passed, even if the Standing Orders required that he should be so heard, or by reason of the absence of a previous resolution of censure, even if the Standing Orders contemplate such resolution. Holding these views, he thought it would not be consistent with the dignity of that court to offer an opinion as to the manner in which an independent branch of the constitution, over which that court had no authority, should sustain its own rules and orders. He might, however, be pardoned for remarking that it was by no means obvious to him that a member who, after being named by the chairman for disorderly conduct, does not desist from it, can fairly say that he had not been heard, or that it was ever contemplated by the Standing Order that a member reported under such circumstances should be heard again, although the House may, of course, hear him as a matter of grace. It followed that, in his judgement, the evidence disclosed no case against the defendant which that court could entertain.

He had been urged, however, to let the case go to the jury for the assessment; of damages. If he thought that by doing so he should be aiding in the administration of justice he would accede to the request, although he held that a judge ought not to hesitate to give judgement of non-suit when a defendant who, in his opinion is entitled to that judgement, claims it, unless it is to the interests of both parties to take the opinion of the jury. He confessed, however, that he did not feel himself capable of giving a proper direction to the jury in the interests of the plaintiff in a case of alleged personal injury, when he thought that he had sustained no actual injury. He, therefore, gave judgement of non-suit, with damages.

In the case of Reid v. Cowley his Honour made the following entry: “By consent I enter judgement of non-suit, it being agreed by both parties that, in the event of the non-suit being decided on appeal in the case of Browne and Cowley, a rule shall be drawn up setting aside this judgement and granting whatever relief is directed by the ultimate Court of Appeal in that case.”

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The WORKER understands that it is the intention of the Parliamentary Labour Party to refer the decision of Chief Justice Griffith to the Full Court at its next sittings.

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Labour Members' Suspension Fund.

From Burke Branch G.F.W.A., Percyville, £2 2s.

South Brisbane friends, per M. Leneham, 13s. 6d.

Fred Wapshott per W. Fothergill, 2s. 6d.