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Wednesday, 21 July 1920


Mr GROOM (Darling Downs) (Minister for Works and Railways) . - I ask honorable members to cast back their minds to the circumstances under which this ruling was given. The honorable member for West Sydney (Mr. Ryan) was attempting to discuss the whole question of the deportation of Father Jerger - an Executive act carried 'out, -as we believe, under the authority of the law. The -deportation of Father Jerger was being argued in the Courts, awd it was raised here. The honorable .member for West Sydney (Mr. Ryan) in his capacity as counsel, had made application to the High Court for an order nisi for a writ of habeas corpus. That case .had been argued before the Court one afternoon, and on the following morning a decision was given by the learned Judge. The honorable member announced in Court that he intended to give notice of appeal; and that notice of appeal has actually been given, so that the question is still sub judice. An attempt was made to discuss in this House the whole question of Father Jerger's deportation, when the validity or invalidity of that action was before the Court for decision. When the matter was first raised the grounds on .which, the action taken was alleged to be invalid were not known, except by reference to a writ which had been issued in addition to the application for an order nisi. In this writ it is stated that-

The plaintiff's claim is for a declaration that the War Precautions Act 1914-16 and the War Precautions Regulations 1915 are no longer in operation, and are ultra vires of the Constitution Act-


Mr Ryan - That is a pure point of law.


Mr GROOM - But in this writ the plaintiff also claims an injunction - to restrain defendant by himself or his agents or servants from taking any action or step interfering with the personal liberty of the plaintiff, and' compelling him to leave Australia, and also for an order to restrain the said defendant or his agents or servants from authorizing or permitting any military or naval authority from arresting the plaintiff or interfering with his personal liberty as aforesaid:

It will thus be seen that the question of a man's personal liberty, which is involved in this writ, was raised by the honorable member. During the debate he sought to create, and might have been successful in creating, in this House a political opinion upon the case while it was still before a Court for decision. That was the atmosphere which the honorable member intended to create. Our functions as a legislative body are clear, and there can be no doubt that the House is perfectly justified in criticising freely the actions of the Government and in calling upon it to answer for its conduct. Such criticism is clearly within the functions of Parliament. The Courts of law, however, stand in a different position. They are created to deal, amongst other things, with questions relating to the liberty of individuals and to take into account the circumstances concerning such matters. The honorable member f or Kennedy (Mr. McDonald) will no doubt have a clear recollection of the ruling that he, as Speaker, gave when Sir William Irvine, then the honorable member for Flinders, sought to discuss something relating to the Australian Workers Union, which at that time had a case before the Arbitration Court.


Mr McDonald - The case was actually before the Court.


Mr GROOM - It was, and the honorable member ruled that, since it was sub judice, the matter could not be referred to in this House. The principle then laid down was that it was not right or proper for the House to discuss matters which are pending before the judicial tribunals of the country.


Mr Riley - If a Judge committed an outrage on the bench, could we not discuss his action?


Mr GROOM - Yes. The procedure is clearly laid down by the Constitution itself. If a Judge is guilty of misconduct we can deal with that misconduct.


Mr Mathews -But the majority in this House would prevent us from doing so.


Mr GROOM - Not at all. I am merely showing that there is a proper procedure to follow. If a Judge is guilty of misconduct his actions can be challenged in this House, and by resolution of the Parliament he can be removed from office.


Mr Ryan - The question here is not the removal of a Judge for misconduct, but the removal from office of the Executive of the dayfor misconduct.


Mr GROOM - And in dealing with that alleged misconduct the honorable member was trying to bring before the House the f acts concerning the case which was before the Judge for decision.


Mr Ryan - Not at all.


Mr GROOM - That was the actual position when he was called to order.

In the House of Commons, as reported inVol. 64, 4th Series, of the Parliamentary Debates, page 867, an honorable member sought to discuss allegations of bribery before any legal proceedings had been brought before a tribunal, but before the time within which a petition could be lodged had expired. Mr. R. G. Webster rose to a point of order, asking -

Is it in order for an honorable member to refer to an election at a time when the period during which a petition may be lodged has not yet expired?


Mr SPEAKER - I must say that I think it is most unusual.

Sir J.Maclure. ; I think, if I may be allowed to say So, that it is disgraceful.


Mr SPEAKER -Order, Order ! It is a most unusual course,and I think it is out of order. The honorable member is now about to go into the allegations that there was bribery and corruption at the Great Grimsby election. That, I understand, is his object.







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