Willis v Perry [1912] HCA 12; (1912) 13 CLR 592 (19 April 1912)

HIGH COURT OF AUSTRALIA

Willis and Christie Defendants, Appellants; and Perry Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

19 April 1912

Griffith C.J., Barton and Isaacs JJ.

Wise K.C. and Armstrong, for the appellants.

Knox K.C. (with him Mitchell), for the respondent.

Griffith C.J.

The appeal in this case was not brought by special leave, the grant of which suggests a doubt as to the correctness of the decision of the Supreme Court, but as the decision, although in form an interlocutory judgment, practically deprives the defendant of any defence, this Court, in pursuance of its usual practice, granted the leave as a matter of course. For my part, I have had difficulty in treating the arguments for the defendants with becoming gravity. The complaint is that the defendant Willis directed the other defendant to arrest the plaintiff, a member of Parliament, while he was outside the legislative chamber, and to bring him into the chamber, there to be admonished by the Speaker. The plea alleges towards the end of it that "the defendant Willis, as such Speaker, believed that the existing disorder as aforesaid would so increase that the then sitting of the said Assembly could not further be continued by reason thereof, but would terminate in disorder, and immediately thereupon the defendant Christie, in pursuance of the said direction of the defendant Willis, within the precincts of the said chamber then and there gently laid his hand on the plaintiff and conducted him into the said chamber," etc. Immediately before that the plea contained the allegation that "it was then and there necessary for the purpose of preventing the spread of disorderly and unseemly conduct during the rest of the then sitting, and for the purpose of securing obedience during the rest of the said sitting to a certain Standing Order of the said Assembly, which requires that a member of the said Assembly shall be uncovered and make obeisance to the Chair when leaving the Assembly, that the plaintiff should be brought back into the said chamber forthwith." It appears from other portions of the plea that the plaintiff, shortly before he left the chamber, had been guilty of disorderly conduct, and that when leaving it he did not make obeisance to the Chair and kept his hat on his head.

In my judgment the question at the root of the case is whether the Speaker of the Legislative Assembly of New South Wales has power to arrest a member not in the chamber and bring him into it against his will. In the case of Barton v. Taylor[1], which was an appeal from the Supreme Court of New South Wales brought by my brother Barton who was then Speaker, Lord Selborne, in delivering the judgment of the Judicial Committee, after referring to the cases of Kielley v. Carson[2] and Doyle v. Falconer[3] said[4]:—"It results from those authorities that no powers of that kind are incident to or inherent in a Colonial Legislative Assembly (without express grant), except such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute54 Moo. P.C. 63 at p. 88.. Whatever, in a reasonable sense, is necessary for these purposes, is impliedly granted whenever any such legislative body is established by competent authority. For these purposes, protective and self-defensive powers only, and not punitive, are necessary." A little further on he said, quoting from Doyle v. Falconer[6]:—"If a member of a Colonial House of Assembly is guilty of disorderly conduct in the House while sitting, he may be removed or excluded for a time, or even expelled. ... The right to remove for self-security is one thing, the right to inflict punishment is another. ... If the good sense and conduct of the members of Colonial Legislatures prove insufficient to secure order and decency of debate, the law would sanction the use of that degree of force which might be necessary to remove the person excluded from the place of meeting, and to keep him excluded. ... The principle on which the implied power is given confines it within the limits of what is required by the assumed necessity. That necessity appears to their Lordships to extend as far as the whole duration of the particular meeting or sitting of the Assembly in the course of which the offence may have been committed. It seems to be reasonably necessary that some substantial interval should be interposed between the suspensory resolution and the resumption of his place in the assembly by the offender, in order to give opportunity for the subsidence of heat and passion, and for reflection on his own conduct by the person suspended; nor would anything less be generally sufficient for the vindication of the authority and dignity of the assembly." I think that this judgment authoritatively expresses the law applicable to the present case, and the question is whether it can be called defensive action on the part of the Legislative Assembly of New South Wales to arrest a member who is out of the chamber and bring him back into it. The only purpose can be to punish him. The plea contains the extraordinary allegation that the plaintiff having been disorderly in the chamber had gone out of it and that, in order to prevent disorder from continuing in the chamber, it was necessary to bring him back. That is self-contradictory. While absent from the chamber he certainly could not contribute to disorder in the chamber. In my opinion the Speaker had no more authority over the plaintiff when he was outside the chamber than he had over a person who was not a member. The Speaker undoubtedly has power when any person who is outside the chamber is conducting himself in such a manner as to interfere with the orderly conduct of proceedings in the chamber to have that person removed, and for that purpose to obtain the aid of the police. But that is quite a different thing from arresting a person and bringing him into the chamber. The only object of such action is to punish him, or, as Ferguson J. said, "that the example made might be effective as a deterrent." The appeal must therefore be dismissed.

Barton J.

I am of the same opinion. The case is so abundantly clear that I am not justified in adding many words to what has been said by the Chief Justice. The Speaker is merely the mouthpiece of the House of Assembly. He exercises for it powers which it possesses, but the exercise of which is placed in his hands, subject to its control, for reasons of necessity or convenience. Now the Assembly does not possess power to punish for breaches of order. Still less has it power to punish in anticipation of disorder. It can protect itself against existing disorder on the part of a member by removing him and in other ways, but if he desists from disorder it cannot punish him for what has ceased. In the plea it is not even alleged of the plaintiff that while he was outside the chamber he was doing anything which created disorder inside the chamber. Had such been the case, different considerations might possibly have been applicable. The utmost that is said is that the plaintiff intended to cause further disorder. To bring him back into the chamber was in no sense an exercise by the Speaker of the self-protective power of the Assembly. Order in debate is necessary to the proper performance of the functions of a branch of the legislature, and the power to preserve order belongs to it as a necessary consequence. But the Speaker's action went outside the necessity of the case when he ordered the plaintiff to be brought back. It is pleaded that the defendant had failed to take off his hat and to make an obeisance to the chair, and that in other respects he had been guilty of gross disorder while in the chamber, and for the purposes of his demurrer the defendant admits all the misconduct alleged. Such misconduct might be ample warrant for bringing a member back and punishing him where there is power to punish. But where there is no punitive power, conduct such as that of the plaintiff, outrageous as it may be, does not warrant the Speaker, or an officer of the House under his orders, in arresting a member and bringing him back into the chamber. Such action is beyond the legal power of the Speaker in New South Wales, and in view of his position under the law his action was totally unjustified, and the plea is therefore bad. Judgment must therefore pass for the plaintiff on the demurrer.

Isaacs J.

I quite agree. The Legislative Assembly of New South Wales has assigned to it very high constitutional functions and it is an implied part of the grant of those functions, there being a corresponding duty to perform them, that it is not to permit itself to be impeded or obstructed in discharging these functions. But it has only the common law implication to depend upon and so has no punitive power at all. Of course, if the House has no punitive power, its officer, "who has no eyes to see, or ears to hear or mouth to speak with except as the House directs him"—as was said on a great historical occasion—has no further power. The limit of this implied power, which is one of necessary implication, is the necessity of the circumstances. As put by Lord Selborne in Barton v. Taylor[7]:—"The principle on which the implied power is given confines it within the limits of what is required by the assumed necessity."

Then the question is, what is the assumed necessity? That is laid down in Kielley v. Carson, by Parke B., who said[8]:—"Their Lordships see no reason to think, that in the principle of the common law, any other powers are given them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it was competent for the Crown to perform. This is the principle which governs all legal incidents. Quando lex aliquid concedit, concedere videtur et illud, sine quo res ipsa esse non potest. In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their legislative functions, they are justified in acting by the principle of the common law."

Now the facts relied on in this case by the defendants to establish the necessity are shortly these:—That the plaintiff was guilty of very disorderly conduct while in the chamber and of very disrespectful conduct in leaving it. But, having left it, there is not a single allegation against him of any other disorderly act, or even intended disorderly act, and yet it is said that his arrest outside the chamber, whether in the precincts of the chamber or not, but at all events in a place where he was not in a position to interfere with the legislative functions within the chamber, and his forcible re-introduction into the chamber were justified on the ground that other members would probably repeat his conduct if he were not brought back. The simple answer is that those other members had not done so, and if they had, they could have been dealt with and could have been removed from the House, and in law there could not be a necessity to bring the plaintiff back into the chamber in order to prevent other possible disorder on the part of other members from arising. The facts as alleged therefore do not, in my opinion, amount to any possible justification.

Appeal dismissed with costs.

Solicitor, for the appellants, J. V. Tillett, Crown Solicitor for New South Wales.

Solicitors, for the respondent, Minter, Simpson & Co.

[1] 11 App. Cas., 197.

[2] [1842] EngR 593; 4 Moo. P.C. 63.

[3] L.R. 1 P.C. 328.

[4] 11 App. Cas., 197 at p. 203.

[5] [1842] EngR 593; 4 Moo. P.C. 63 at p. 88.

[6] L.R., 1 P.C. 328 at p. 340.

[7] 11 App, Cas., 197, at p. 204.

[8] [1842] EngR 593; 4 Moo., P.C., 63, at p. 88.