23rd Parliament · 2nd Session
Mr. SPEAKER (Hon. John McLeay) took the chair at 2.30 p.m., and read prayers.
– I preface a question to the Minister for Primary ‘Industry by saying that it is reported in a section of the press that the Government is expected to appoint a least one member of the Parliament to the proposed committee which will inquire into wool marketing. I ask the Minister: ls there any truth in that report? If there is, will the Minister give the Parliament an undertaking that all points of view represented in this Parliament will be expressed, not by one member but by representatives of all the political parties represented in the Parliament?
– The Prime Minister recently announced that a committee of inquiry to investigate the marketing of wool would be set .up.
– Why did not the Minister for Primary Industry make the announcement?
– Because the Government considers this matter to be of such importance that it is only fitting that the head of the Government should make the announcement. The Prime Minister has said that a top-level committee will be appointed. Obviously, some members of the Parliament would not come into that category. However, I can assure the honorable member for Lalor that a top-level committee of inquiry will be appointed. The Government is still considering the personnel but I do not think the honorable member’s fears have any foundation in fact.
– Will the Minister for External Affairs inform the House whether any consideration has been given by the Government to the use of the Llanherne airport at Hobart as a support base for the extension of Australian exploration in the Antarctic? Is the right honorable gentleman aware of a view that has been expressed by the Royal Australian Air Force officer who visited the Antarctic recently that such a proposal would be feasible and desirable?
– I am not aware of any precise consideration that has been given to this matter, but I am grateful to the honorable member for suggesting it and putting it into the area of discussion.
– Recently, in a Canberra court, a young and gallant airman was fined for a traffic offence. He said that he would rather face the court than face the anger of the Prime Minister who was on a plane, ready to go away and waiting for his rations. I would like to ask the Prime Minister whether he is really as fierce as was implied. If so, will he bring members of the Royal Australian Air Force to the House more frequently as a sort of breakdown preparation?
– I have one thing in common with the honorable member for Parkes - I, too, read this in the “ Canberra Times “. Oddly enough, I laid a bet with myself that the honorable member for Parkes would put a question about it.
– I wish to ask the Treasurer a question concerning the proposed new legislation by which large undertakings will be taxed on the cost to them of interest on money borrowed other than from banks. In view of the timing of this measure and its likely profound effect on the financial structure, is it designed to be temporary in order to meet current difficulties only or is it designed to be permanent? If the measure is designed to be permanent, what action, if any, will be taken with regard to new companies in our fast developing country to offset the enormous competitive advantages which would otherwise be conferred on existing large and wealthy corporations? What will be the position of parties who, prior to last Tuesday, had already committed themselves contractually to new issues of debentures or interestbearing notes, including underwriters who had taken up new issues firm and printed prospectuses on the basis of existing law but had not already gone on the market by that day?
– As I indicated when I made my statement to the House the other night, the proposal which the Government will introduce by way of legislation at this stage is of an interim character. It is recognized as being far from perfect in its present form for any indefinite period of operation. How long a more permanent measure should operate and the manner in which it would operate are questions of Government policy which have received a good deal of consideration already, and that consideration will continue. We now feel free to discuss openly some of the problems which are manifest and of which the honorable gentleman has given some examples. I suggest to him that study will be given to the latter part of his question and that I hope to be able to answer him in more detail shortly.
– Will the Prime Minister, as Minister for External Affairs, have a statement prepared and tabled, before the House goes into recess, on the position in the Congo and adjacent African territories about which we read very much in the press and about which we have heard very little authoritatively up to date?
– A week or two ago I gave an undertaking, I think to several honorable members, that I would do my best to have a comprehensive statement prepared which would include reference to the matter raised by the Leader of the Opposition. I already am working on the first draft of this matter and I propose to make the statement to the House within the next few days.
– I preface a question to the Treasurer by reminding him of his statement that the Reserve Bank of Australia would give much more specific guidance on the class of borrowers, especially those producing for export, whose activities might reasonably call for extra accommodation. Is the Treasurer aware that, with the prospect of a record cereal crop, many primary producers are in need of extra financial help? Has the Reserve
Bank issued the directions mentioned in the Treasurer’s statement, and can the Commonwealth Bank and the private banks now be confidently expected to provide the finance necessary to help primary producers who are so urgently in need of assistance?
– I do not know whether the honorable member’s question is related in any way to the normal practice of making advances to wheat-growers in respect of the new season’s crop.
– No, I am concerned about harvesting machinery.
– There have been discussions in recent days between officials of the Treasury and of the Reserve Bank on the form of any directive that should be issued by that bank. I will see how far those discussions have proceeded, and how the trading banks will be affected.
– I ask the Treasurer a question. It relates to the increase in bank overdraft interest rates which he announced a week ago. I remind the Treasurer that the 1952 and 1956 increases in interest rates on loans to building societies have resulted in continuing and substantial increases in the amount or the period of the repayments that have to be made by members of the societies. I now ask the right honorable gentleman: Does the Government intend that interest rates on loans to building societies shall be further increased by the average of onehalf of 1 per cent, or by the maximum of 1 per cent., which increases were announced last week?
– We indicated broadly the classes of activities in respect of which the trading banks should require the higher rate to be paid by their clients. Those activities did not include cooperative housing. The rate in a particular class of case will vary, perhaps, from one bank to another. We certainly do not require the banks to impose what might be interpreted as a punitive or deterrent rate in respect of co-operative housing.
– My question is directed to the Postmaster-General. I preface it by directing the Minister’s attention to the fact that a section of the Broadcasting and Television Act provides that persons receiving age, invalid and civilian widows’ pensions, as well as service pensioners and those receiving the pension payable to totally and permanently incapacitated ex-servicemen, are entitled, subject to a means test based on pension plus income, to the issue and renewal of wireless and television licences on the payment of only half the normal fees. Is the Minister aware that the only class of pensioner excluded from this benefit, in her own right is the war widow? Will the Minister consider an amendment of the Broadcasting and Television Act to extend to all war widows a benefit which is already available to other types of pensioners?
– This is a matter into which I am at present inquiring. I have asked my department to give me a complete report, setting out the effects of the recent increases in pension rates. As soon as I have any definite information, which I expect to receive very shortly, I shall advise the honorable member for Henty.
– I ask the Treasurer: To what level of production is it intended that the motor car industry should be reduced before the Government will consider removing the additional 10 per cent, sales tax on motor cars which was recently announced? Does the Treasurer realize that much forward planning in the industry depends on the Government’s attitude to this question?
– At this point, no one can give a precise answer to this question, because the matter depends on various factors operating in the economy. The justification for the action which the Government has taken is to be found in various circumstances, including the pressure of imports made by this industry - imports which, I pointed out earlier, are running now at the rate of £200,000,000 a year compared with £152,000,000 a year in the September quarter of the preceding year. This has occurred at a time when steel has been in short supply and when our export income would ordinarily have increased as a result of exports of steel which is now being used in great quantities by the motor industry. This has occurred at a time also of serious labour shortages in some States, in particular New South Wales and Victoria. If we find ourselves in a situation in which the pressures have eased and the imports situation seems to be more healthy from our point of view, there will be occasion to review our policy in relation to this industry. But other circumstances may be operating at such a time, and the Government could not hold itself bound to give any undertaking now. I did make a broad statement that when the situation of the industry and that of the economy as a whole, looked at together, appeared to warrant a review, it would be made.
– My question is directed to the Treasurer. Did the right honorable gentleman recently say that Australia would have had a depression as disastrous as that of the 1930’s but for the Menzies Government’s economic policy?
– I thank the honorable gentleman for putting this question to me, because I was somewhat dismayed to see the interpretation put by some sections of the press on remarks which I made last evening at a meeting in the Higinbotham by-election campaign. Of course, I did not say that if the measures recently adopted had not been taken, this country would have drifted into a state of depression. What I said - I put it as briefly as I can - was that we, as a government, had certain broad goals of national expansion associated with full employment and that we had been able to maintain steady progress in the direction of those goals over recent years, during which our terms of trade had worsened from, say, a base ot 100 in 1953 to something under 70 at the present time. I made the point that it had been necessary to modify our economic tactics as we encountered these problems from time to time. I said that a deterioration in the terms of trade of that magnitude in earlier years when these tactics might not have been adopted so readily, could easily have led us into a situation of depression comparable with that of the 1930’s. I think that honorable members who have some prior knowledge and experience of these matters will see that there is quite a significant difference between that statement and the version which subsequently appeared in the press.
– I ask the AttorneyGeneral: Has he read the strong criticism of the proposed new divorce court rules which has been made by the president of the South Australian Law Society? Is it correct that South Australian courts, 30 years ago, abandoned rules similar to those now proposed? Will the proposed rules prove more costly to the public in South Australia and cause further delay? Has the Minister been approached to allow the courts in South Australia to continue to function under their well-tried existing procedures? Will the Matrimonial Causes Act 1959 still come into operation on 16th January, or does the honorable gentleman intend to treat the suggested alterations of the proposed rules with his usual flexibility and announce further amendments later?
– I have not read the document to which the honorable member refers, but I inform the House that I did consider whether it would be possible to allow the State courts to continue to function under their existing rules under the new act. This I found to be impossible unless the States all made changes of very wide significance in their rules. Consequently, I considered it better that the Commonwealth make one set of rules. On each occasion when any one has suggested to me that the proposed rules would make divorce more costly, I have examined the submissions made, and when I have got down to details, I have found that in no instance have the suggestions made by the persons who have approached me proved to be correct.
– My question is directed to the Treasurer. Is the right honorable gentleman in a position to assess the losses sustained by small investors as a result of falls in the price of shares on the stock exchanges which have been occasioned by a selling panic generated by certainsections of the metropolitan press?
– I can accept that portion of the honorable gentleman’squestion which states that some sections of the press engaged in a programme virtually amounting to hysteria following the announcement of the Government’s economic proposals. It would, obviously, be quite impractical to make any sort of assessment of the effect this may have had on individual investors. All I know is that, an opportunity having been given to the public to put its own assessment on the Government’s proposals, there has been a> marked revival in the share market which, after all, was a thin market in the first place - a thin market on the down and a thin market on the up. It has been brought tomy notice that one overseas organization with great faith in Australia attempted to make a substantial purchase of Australian stocks when the slump occurred but found it could receive accommodation to the extent of only about one-third of the buying order that it had placed.
– I ask the
Postmaster-General a question about the siting of the commercial television station for Canberra. A photograph appeared in the “ Canberra Times “ recently showing the directors of the television company inspecting a site on Black Mountain. While having every confidence in the ability of this company to provide an excellent programme for this district, I ask the PostmasterGeneral: Will it not be necessary to site the transmitter at a much higher elevation to ensure that the programmes are received in the surrounding districts, particularly in the south-east of New South Wales which otherwise may not enjoy the benefits of television for a long time to come? If this is the position, will he take up with the directors of the company the necessity to site the transmitter at a much higher elevation?
– The honorable member, having seen the report of the Australian Broadcasting Control Board, will know that the recommendation, though not finally accepted, is for a site to be chosen on Black. Mountain for the Canberra television service-. I have been discussing this whole- question of sites during the week-end with members of the board and with officers of my department. It has not yet been finally determined, but I have found, as I mentioned to the honorable member and certain gentlemen whom he brought to see me some time ago about this site, that the Canberra area - that is, the wider area rather than the Canberra city area - is not an easy area in- which- to choose a site for the transmitter. There are certain difficult problems associated with it which have not yet been quite solved. The object is to give as wide a service as possible to the greatest number of people, and that we will attempt to achieve in. the final determination.
– Is the Prime Minister in a position to comment on the agreement signed last week between the Western Australian Government and the Broken Hill Proprietary Company Limited for a £40,000,000 integrated iron and steel plant at Kwinana, particularly on the requirement of the agreement that early approval be given for the completion of the standard gauge railway between Kalgoorlie and Kwinana?
– Before the Western Australian Government brought to a head its negotiations with the steel company, its Premier and Mr. Court came to Canberra and had some discussion with me and with others about the matter. The Cabinet of the Commonwealth Government has had a look at the project. It is, of course, enormous and the railway operations involved are of great magnitude. It, therefore, requires a great deal of close examination, and we are putting that examination in hand. We will bring our consideration to a conclusion as soon as we can, but I ask the honorable member to realize that matters which run up to £30,000,000 or £40,000,000 and which involve a wholesale railway reconstruction cannot be lightly disposed of in a week or two.
– I ask the Minister for Trade: Is he aware of the announcement that Consolidated Zinc Proprietary Limited will establish a £160,000,000 aluminium smelter works in the Southland Province of New Zealand and that it intends to use Weipa bauxite? Does the Minister approve of this raw material being exported to another country for processing by this, international company when an aluminium’ smelting industry could be established: economically in Australia? Will theMinister give consideration to imposing, restrictions on the export of this rawmaterial unless a comparable industry isestablished in Australia? Is the Minister aware that a strong case for the establishment of this industry in Newcastle was prepared and submitted to the company mentioned by a Newcastle committee?
– This is not a matter which falls within my ministerial responsibility. I think it is a matter which is to some extent the responsibility of the Minister for National Development. The question raises an issue which has engaged the attention of Cabinet, and 1 am sure that in due course a well-considered statement will be made by the Government in connexion with it. I remind the honorable member that there does not exist at the present time in Australia any source for the bulk supply of electricity at a price that would make the smelting of aluminium for export to world markets an economic proposition.
– I address to the Minister for Shipping and Transport a question supplementary to that asked by the honorable member for Stirling. Will the Minister assure me that the proposed standardization of the railway line between Kalgoorlie and Perth will not set back the standardization of the line between Broken Hill and Port Pirie?
– T can understand the interest that the honorable member for Wakefield has in this project. I feel that this question was inspired by a newspaper report published this morning. That report, as is so often the case with press reports, was founded on surmise. The matter is under consideration and is therefore one of future Government policy.
– Will the Minister for Trade make the earliest possible approach to the incoming United States Administration with a view to its adopting a more just and enlightened attitude with respect to trade by reducing the present high tariff duties imposed on Australian primary produce, including wool, lead and zinc? In view of the necessity to arrest the decline in our overseas balances, will the Minister stress the very favorable treatment that is accorded to American investors in Australia and emphasize the urgent need for more equitable treatment of Australian exports entering the United States of America?
– During the coming year there will be opportunities to discuss this subject, particularly within the General Agreement on Tariffs and Trade. Australia’s general attitude to the matters that the honorable member mentions are wellknown in United States Administration circles. I am bound to point out that the only item on which a particularly high duty is imposed is wool. In relation to lead and zinc, our problem is more one of quotas than of duties. Having said that, I should point out that the negotiations to which I have referred will be possible because of the initiative of Mr. Dillon, the Under-Secretary of State for Economics in the United States Administration.
– My question is addressed to the Postmaster-General. Is he aware that on several occasions in this House I have advocated that the transmitter of the new television station in the Bendigo, Victoria, area should be placed as far northwest as possible from Bendigo, while at the same time giving that city an effective coverage? Does he know that a transmitter north-west of Bendigo would encompass an important part of north-western Victoria and part of the Riverina and would be much more acceptable than the site which at present appears to be favoured and which would, if adopted, to some extent duplicate coverage by other existing and proposed television stations? Will he give further urgent consideration to my advocacy?
– The honorable member for Mallee asks whether attention will be given to his advocacy. Of course, it is well known that complete attention is always given to the matters which he so actively pursues and advocates. The honorable member has referred to the site of the television station for Bendigo, and more or less the same remarks which I made in reply to the honorable member for EdenMonaro apply to that question. These are matters which are under consideration. When I made my announcement in the House regarding television licences I stated that the final determination of sites was left to a sub-committee of Cabinet, after consultation with the Postmaster-General’s Department. I expect the finalization of most of these matters in about a week or so. Such problems as the honorable member for Mallee has brought forward will receive full consideration. The main consideration always, after the engineers have taken the field strengths from the various proposed sites and determined what site will give the best coverage, is which site is most suitable. That is the site which will be chosen.
Report of the Forster Committee.
– My question is directed to the Minister for Territories. Will the Minister give an assurance that the report of the Forster committee on agriculture in the Northern Territory will be printed as soon as possible, so that honorable members may be informed of the committee’s recommendations and the reasons therefor? Will he also give an assurance that the House will be afforded an opportunity to debate the report?
– This report of the Forster committee is without doubt the most comprehensive, thorough and expert examination of these problems that has ever been made. It is my intention to seek funds for the printing of the report so that it will be available not only to honorable members of the House but also to all persons interested in this important subject. The report covers about 250.000 words, together with diagrams, graphs and illustrations, so the printing cannot be done hurriedly. If there is any undue delay in getting printed copies of the report, I will try to get an extensive summary in mimeograph form and make it available to honorable members. I should stress that this is a report prepared at ministerial request for departmental purposes and the question of whether or not there should be a debate on it scarcely seems to arise. At any rate, that would be a matter for the Government in framing the programme of the House.
– My question is directed to the Treasurer. Can he describe to the House the means by which the Reserve Bank ensures that its directives to the trading banks are in fact carried out, and particularly its directive to make advances available to meet the reasonable demands of export producers and to charge the lowest or minimum rate of interest? Has the Reserve Bank legal power to enforce its directives?
– That question invites, in fact, a legal opinion, and it is not customary-
-It would be out of order.
– Yes, Mr. Speaker, it would be out of order. I shall examine the detail of the honorable member’s question and see how much information I can supply in a manner which will be within the Standing Orders.
– My question is addressed to the Treasurer. In view of the fact that increased overdraft interest rates and increased sales tax will undoubtedly be reflected in the production and distribution costs of goods and services, can the Treasurer say how he proposes to protect the primary producing industries from the adverse effects of higher costs in the economy?
– The Government’s view is that had action not been taken along the lines which were indicated to the House, inflationary pressures, which would have a far more serious effect upon farming costs than have the Government’s proposals, would have been allowed to go unchecked. We feel that the means that we have proposed give us a good prospect of bringing the economy under reasonable restraint and, in that way, holding down costs and prices which otherwise would have operated very seriously against the farming community.
I may add that whatever criticisms have been offered publicly in relation to the measures that we have announced, it is very gratifying to see the realistic and, indeed, commendatory attitude which has been shown by farmer organizations and by very many members of the farming community who have been in touch with me and with other members of this House.
– Will the Minister for Health review the quarantine regulations which apply to the importation of various kinds of strawberry plants, because the existing regulations create a delay of up to three years, in some cases, in the importation of new plants? My purpose in asking the Minister to review the regulations is that the unrestricted entry of canned pulp from overseas countries, such as Bulgaria, is creating great difficulty for strawberry growers both in my electorate and elsewhere in Australia.
– I shall ask the Department of Health to examine the quarantine regulations, but the honorable gentleman must realize that the very purpose of such regulations is to ensure that plants grown in this country are free from disease. It would be of very little use relaxing the regulations to such a degree as to put those plants in jeopardy merely to protect local growers against the introduction of canned fruit from abroad.
– I preface my question to the Minister for Territories by directing attention to the fact that about twelve months ago we discussed in this House the Minister’s statement relating to the imposition of new taxes in Papua and New Guinea. Is it a fact that the Territory Administration is considering easing taxation to encourage private enterprise to invest in the Territory? If this is a fact, what form will this relaxation take? Will the House be given the opportunity to discuss the new proposals?
– It was the announced intention of the Government to devise for the Territory of Papua and New Guinea a taxation system which would not be a replica of the Australian system, but would suit the particular needs and circumstances of the Territory. It is also announced policy to promote industries in the Territory to provide a sound economic basis for the Territory’s future. If, in the course of carrying out that policy, taxation can be used to encourage the establishment of new industries, it will be so used.
Taxation proposals normally will be introduced in the Legislative Council for the Territory which will have the opportunity to either accept or reject them. This House will not have the opportunity to debate such taxation measures when they are introduced in the Legislative Council. Opportunity on Territory matters will arise on such occasions as when this chamber is discussing the Estimates or when, by its own motion, it brings any Territory matter under scrutiny.
– Has the attention of the Minister for the Interior been directed to the fact that some two months ago a trench, measuring about 10 or 12 feet long by about 6 feet wide, was dug across the main pathway leading from this building to the Hotel Canberra, and that this trench has constituted a man-trap - and, I presume, a woman-trap - for people who have to negotiate muddy patches in wet weather and rough surfaces in dry weather? In view of the fact that many unsophisticated persons, distinguished visitors such as doctors, lawyers and accountants and, later, rural people, will be visiting the National Capital, could the Minister make some arrangement to have the trench at least filled in with good gravel until such time as it is possible for the National Capital Development Commission to put the concrete path in order, so that there may be no destruction of the life or limb of any one visiting here?
– I am aware that a trench has been dug in the place mentioned for the purpose of some public work in the city of Canberra. I would remind the honorable member that there is a good deal of activity in that direction going on all over Canberra, and not merely between Parliament House and the Hotel Canberra, or between Parliament House and the Hotel Kurrajong. I would commend to the honorable gentleman’s interest some of the other areas of this National Capital, because it has been said, somewhat cynically, by some people in the Department of Works that, so long as they keep the footpaths between the Hotel Canberra and Parliament House and the Hotel Kurrajong and Parliament House in order, they need not fear anything from this Parliament. I hope that that is not the case. Anyway, I will have a look at the work that the honorable member mentions and see whether anything can be done.
– My question is addressed to the Attorney-General. I ask him whether he agrees with the “ Hansard “ report of last Thursday evening’s debate, which now makes it clear that he either misunderstood, misheard or distorted a comment made by my colleague, the honorable member for Eden-Monaro. In view of the fact that the honorable member for EdenMonaro said, “ Stop sheltering behind the Sovereign all the time “-
– Order! The honorable member is now canvassing a debate that took place. The question is out of order.
– Does the PostmasterGeneral realize that while the extended local service area telephone charges have been of considerable advantage to countrymen living within about 25 miles of their main shopping town they have also placed an added burden on people in the sparsely settled inland areas? Is he aware that trunkline charges will double for some of those people, who will hardly be able to make any local calls at Elsa rates? Will he consider reviewing these charges?
– I do not know that it is correct to say that in the great majority of cases the introduction of the extended local service area system has brought about a doubling of trunk-line charges for people in outlying districts. I know that there are many areas in which trunk-line rates have been reduced. This follows on the fact that the original number of 22 trunk-line divisions has been reduced to eight divisions. There have been some increases, and there have been some reductions. I think that, by and large, the advantage has been with the subscriber rather than with the department in this matter. However, I have found, as the result of representations made to me by various honorable members, that certain anomalies have developed. As I said previously, we are always, prepared to look at those anomalies. While I give this reply to the honorable gentleman in general terms I also invite him to give me the details of any particular case he has in mind, and I shall be quite happy to look at it.
– My question is to the Treasurer, ls it a fact that last February instructions were given to the trading banks that their advances should be very carefully regulated? Is it also a fact that since then their advances have risen by something like £150,000,000? Did the Treasurer say in his economic statement last week that this was something that the Government had not reckoned for, and did he imply that he was unaware of where this money had gone? Can he now tell the House where this £150,000,000 in new advances did go, and can he give the House any assurance that the instructions which the Reserve Bank is now giving to the trading banks will have any better prospect of being carried out than had the instructions given last year?
– During a period beginning towards the end of last year and ending early in this year the Reserve Bank made certain calls into the statutory reserve deposits. At about the same time, instructions went out to the banks in respect to lending. Perhaps those instructions operated earlier than that. The banks had an under standing that there were not to be loans for speculative or hire-purchase activities.
At the same time, the Reserve Bank stated that its policy would permit of a moderate increase in the level of advances over the remainder of the financial year. In the result, there was an increase in advances, very much greater than the Reserve Bank or the Government had anticipated or, for that matter, greater than the- trading banks themselves thought was likely to occur. It is not for me to debate now how these developments occurred, to what extent they were the product of requirements for additional imports, or to what extent they were a response to the buoyancy which had developed within the economy. But if the honorable gentleman wishes to know where the advances have gone, he. can get a very quick and detailed picture by looking at the latest issue of the “ Statistical Bulletin “ issued by the Reserve Bank.
Assent to the following bills reported: -
Appropriation (Work and Services) Bill 1960-61.
Customs Tariff Bill (No. 3) 1960.
Customs Tariff (Canadian Preference) Bill (No. 2) 1960.
Customs Tariff’ (Canada Preference) Bill 1960.
Customs Tariff (New Zealand Preference) Bill (No. 2) 1960.
Customs Tariff (Federation of Rhodesia and Nyasaland Preference) Bill (No. 2) 1960.
Excise Tariff Bill (No. 2) 1960.
Speaker, I desire to make a personal explanation. According to “ Hansard “ at page 3037, the honorable member for Eden-Monaro (Mr. Allan Fraser), on Thursday night, in making a personal explanation, said that T had stated that he had said -
Do not protect the Sovereign. and that I had added -
That shows the attitude of the Labour Party.
Mr. Speaker, I did not say that nor, if 1 might say so, anything remotely resembling that. What I said was that the honorable member had said, “ Stop talking about the Sovereign so much”. That, Mr. Speaker, was what I believed the honorable member had said and, indeed, two of my colleagues on the bench behind me had the same belief and so did some members of the back bench who have spoken to me. However, I have both seen “ Hansard “ and spoken to others, and it seems to me right that I should say that the honorable member for Eden-Monaro did not say, “ Stop talking about the Sovereign so much “, but that he said something which was either “ Stop sheltering behind the Sovereign “ or “ Stop hiding behind the Sovereign “. I have received these different accounts of what he did say. “ Hansard “ states that the honorable member said -
Stop sheltering behind the Sovereign.
Opposition Members. - That is correct.
– I am prepared to accept that. What was put to me the other evening was that I had deliberately falsified what the honorable member had said. I refused to accede to that proposition and I still would. I believed the honorable member to have said that which I repeated. I regret that I did not hear what the honorable member said and I regret accordingly that I did not repeat what the honorable member did say. I want to say quite distinctly that I would not withdraw on the basis that I had either lied or deliberately falsified what I heard.
Declaration of Urgency.
– I declare that the Crimes Bill 1960 is an urgent bill.
Question put -
That the bill be considered an urgent bill.
The House divided. (Mr. Speaker - Hon. John McLeay.)
Majority . . . . 25
Question so resolved in the affirmative.
Allotment of Time.
– I move -
That the time allotted in connexion with the bill be as follows -
For the committee stage -
clause 23, proposed section 24aa, until 5.20 p.m. this day.
clause 23, proposed section 24ab, until 8.50 p.m. this day.
remainder of clause 23, until 9.5 p.m. this day.
proposed new clause 23a, until 9.10 p.m. this day.
proposed new clause 23b, until 9.40 p.m. this day.
clauses 24 to 26, until 9.45 p.m. this day.
proposed new clause 26a, until 10.15 p.m. this day.
clauses 27 to 48, until 10.45 p.m. this day.
clause 49, until 4.45 p.m., Wednes day, 23rd November.
remainder of committee stage, until 5.45 p.m., Wednesday, 23rd November.
For the remaining stages, until 6 p.m., Wednesday, 23rd November.
Mr. Speaker, the bill was debated on general principles at the second-reading stage and some 38 members spoke. A little more than eight hours have already been spent in the committee stage. It seems, with great respect, that the procedure proposed will enable the measure to be amply discussed with some certainty as to what time is available. This should ensure an even and sensible division of time between the various clauses.
– The Government should be ashamed of itself for bringing down the guillotine at all on an important measure of this sort, and it should be doubly ashamed of itself for limiting the time in the scandalous way now proposed. The Attorney-General (Sir Garfield Barwick) said that the bill had been amply debated. It consists of 60 clauses to which the Attorney-General has 22 amendments and to which I have 44. Two days only were allowed for the discussion on the motion for the second reading of the bill. I have never known of an important piece of legislation to be rushed through the second-reading stage in such a scandalous fashion.
Now, although we have had one day in the committee stage, we have made reasonably good progress. We have disposed of clauses 1 to 22 and part of clause 23. But the Attorney-General is not satisfied. He wants the Parliament to rush into recess. He wants this bill to become law before Christmas. The Government waited for years before introducing the bill at all. There is no urgency for it. Indeed, there is no need for it. The bill could have have waited until next year. There are 22 other bills on the notice-paper all of which the Government would love to gallop through the House, too, if it could. Very little opportunity will be afforded to honorable members between now and Thursday week - eight or nine days time - to attempt to discuss those bills properly.
This Government has used the guillotine on about sixteen occasions. It has moved the gag on about 600 occasions and it intends, apparently, to continue to add to its already black record in the matter of forcing legislation through the Parliament. This justifies all the fears that we have of the nature of this legislation and the reasons why the Government wants to push it through as quickly as it can. The Government will not give time for a dispassionate examination, even of the amendments proposed by the Attorney-General. Who can tell whether he has finished introducing all his amendments yet? If ever there was a Minister who earned for himself the title of the “ amendment king “ it is the present Attorney-General. Look at the way in which he has dealt with divorce, marriage and patents legislation! Now, he is dealing with this bill in a similar way.
When the Crimes Bill gets to the Senate, no doubt further amendments will be introduced in order to meet further criticism. We are told that this bill is to be pushed through in a few hours. We had two days for the second-reading debate. There will have been two and a half days, at the very most, for the committee stage. Yet the Government tries to persuade the Australian people that they are being well governed, that their interests are being looked after, that legislation is being properly and dispassionately considered! The truth is that no government ever treated the Parliament and the people with greater contempt.
– The Leader of the Opposition (Mr. Calwell) has done his best to put on a show for his troops. He has whipped himself up into the synthetic passion he usually shows on issues of this sort. He knows as well as those who sit behind him that, having regard to the very important measures in the programme ahead of this Parliament for the remainder of this session, this is a very reasonable, indeed, a liberal allocation of the time available.
– Why not go on sitting?
– Members of the Government including the Cabinet will be in Canberra up to .Christmas time on one item of business or another and it would be no great discomfort to us if .the Parliament were to sit at the same time. But it is well known that honorable gentlemen opposite regard this session as having been abnormally heavy and are feeling the strain of it. In order to make a case, the Leader of the Opposition has, of course, quite distorted the picture. He mentioned that the Attorney-General had 22 amendments. He knows that only six of those amendments are of substance and that the others are entirely consequential. An analysis of the Opposition’s 44 amendments would show a similar state of affairs.
No Minister has been more considerate to the Parliament and to the public on measures which he has brought before the Parliament than the Attorney-General. The manner in which he dealt with the matrimonial causes legislation, the manner in which he allowed this bill to lie without debate for a considerable time so that public judgment could be formed on it, and the patience and the care that he has given to suggestions and to proposed amendments which have reached him from all manner of people, all suggest a Minister and a parliamentarian who has a deep respect for the principles of democracy.
What is the position now? A debate which we had thought - and not without some good grounds - might have concluded to-night is going to be allowed by the Government to extend until dinner time to-morrow. In these circumstances the Opposition has very little to complain about.
I want to make one other point. In this Parliament, as, indeed, in all democratic parliaments, it is desirable that there should be some collaboration between the spokesman for the Government and a spokesman for the Opposition in the organization of a programme covering the whole session or, as the session proceeds, a day-to-day programme. I say, not in criticism of the Deputy Leader of the Opposition (Mr. Whitlam), but as a matter of fact, that during the time when the Leader of the Opposition (Mr. Calwell) was acting in this way as spokesman for the Opposition, we were able to make arrangements which, having regard to limitations of time available to the Parliament, were as satisfactory to both sides as could be contrived. It is no fault of the Deputy Leader of the Opposition, but is merely symptomatic of the deep divisions which currently exist within its own ranks, that the Opposition will not give its Deputy Leader authority to come to some arrangements with me, as the Leader of the House and as the spokesman for the Government. So the honorable gentleman has to come along and ask, “ What is it that the Government has decided? “
I would much prefer a situation in which he and I, acting with full authority for the respective sides of the Parliament that we represent, could say, “ Here is the programme. Here is the time available, and this is the best disposition of the time that we can arrange in an attempt to meet the requirements of both the Government and the Opposition.” But until honorable members opposite cease behaving like a lot of school children and consider these matters quite realistically, and until they show a disposition in .debate-
-Order! The Minister’s time has expired.
.- The Opposition is willing to spend as much time in debating this bill as is necessary for the proper scrutiny of it. I certainly have never adopted the attitude - and I do not believe my leader, when he was Deputy Leader of the Opposition, ever adopted the attitude- that the Opposition should help the Government to hurry into recess. We believe that the Government’s job is to bring in legislation, and that it is the job of all parliamentarians, on both sides of the House, to scrutinize that legislation. We have not been given the opportunity to scrutinize this legislation.
The Attorney-General (Sir Garfield Barwick) said that 38 members, less than a third of the membership of the House, less than the number required to constitute a quorum, debated this bill in its secondreading stage. I remind the House that at the second-reading stage there was no opportunity to debate the 22 Government amendments or the 44 Opposition amendments that have now been circulated. We are expected to debate those 66 amendments - some of them, admittedly, in the same terms as others - in the course of two and a half debating days.
We had last Thursday to debate this matter in committee and during the course of the debate there were eighteen divisions. Nine of those divisions were on the application of the gag, and there should have been one other division on the application of the gag. In the course of the day We disposed of nine Opposition amendments out of 44, and two Government amendments out of 22.
I will give the House three examples of how the debate on this measure will be truncated. We have until twenty-past five to-day to deal with three Government and seven Opposition amendments. We then have until ten minutes to nine, 90 minutes at the most, to deal with 20 Government and 25 Opposition amendments. Tomorrow afternoon we will have from the conclusion of question time and the presentation of statements and other formal business until a quarter to five to dispose of ten Government and thirteen Opposition amendments.
Let me give honorable members an example of how cavalierly the Government has treated this debate. On Thursday there were five Opposition speakers and none at all from the Government side on a section of the legislation concerned with the death penalty. This is a provision which occurs in only one other place in Commonwealth legislation. The death penalty is a matter upon which all State parliaments and the British Parliament have spent days at a time. Yet this Government will not put up a single argument on the point.
The sharp practice which the Government is introducing on this occasion can be seen very clearly when one realizes that if there are no Opposition amendments voted on by the time set down for the expiry of debate on any of these items, then there will be no vote at all on those Opposition amendments. That is, the Government is ensuring that there will be a minimum of divisions. It will never have to apply the gag, and unless we ourselves ration our debating time it will never have to stand up and be counted on the very great number of matters of principle which are involved in the Opposition amendments. If this is liberal government, then the people have had a very good exposition of it.
In economic matters and in matters concerning civil liberties we have seen disgraceful .performances by the Government during the last week. We have seen sharp practice and unexpected devious dealings, and we are therefore voting against this proposal for the allocation of time. It will give completely inadequate time for debating a very great number of amendments. There have been no bills, at all events within the last decade, to which so many amendments have been moved. The amendments aTe concerned with matters of great importance and they should be properly debated, even if the Parliament has to sit for another week.
– The Deputy Leader of the Opposition (Mr. Whitlam) has spoken in heroic terms, but I think he has overlooked the well-established usages of the House. From the way in which the honorable member has spoken one would imagine that the use of the guillotine is a most novel procedure, and that it is hot one of the customary methods adopted by governments of both political complexions to deal with situations that arise.
A proper judgment on this matter can be made by any one who cares to go back over the debate that has taken place on this bill. Although it is true that the. gag has been applied on a number of occasions, any one who reads the record of the debates carefully, and with a reasonable sense of fairness, will see that argument has been exhausted and irrelevancies have arisen on every occasion before the closure has been moved.
My colleague, the Leader of the House (Mr. Harold Holt), referred to the patience that the Attorney-General (Sir Garfield Barwick), who is in charge of this bill, has shown. I think that patience is obvious to any one who reads the record fairly and sees the points of time at which the closure has been moved, and who asks himself, “Was there anything more that remained to be said on the particular point under discussion? Was there any argument that had not been repeated more than once? “ It is only because, for reasons of its own - and reasons which are acceptable in this place - the Opposition wanted to prolong this debate by obstructing the passage of the various clauses, that the Government has been forced to adopt a procedure which is also acceptable and customary in this place, and which would be adopted by any government responsible for the conduct of the business of the House.
Let me point out to honorable members opposite that the guillotine on this occasion will prove an economical measure. Under the proposal now being discussed honorable members will get far more, time for debate, in the time now remaining available, than if repeated divisions were called for, each of them taking two, three or four minutes to complete. If we think of the period between now and dinnertime to-morrow, the. effective debating time will be much greater as a result of the use of the guillotine than it would be if, in the face of Opposition obstruction, we had to move the gag on each clause, vote on it and then vote on the clause itself.
The Leader of the House also referred to the fact that it is necessary, in order to preserve orderliness in the proceedings of the Parliament, to have consultation between representatives of the Government and the Opposition. In other days, when the person nominated by the Opposition to conduct negotiations with the Leader of the House had the backing of members of the Opposition, it was possible to bring such negotiations to an orderly conclusion and make satisfactory arrangements. But of course the Deputy Leader of the Opposition has been repeatedly placed in a position which must be embarrassing for him, and which must make his task very difficult. He has been obliged to say, “ I cannot enter into any agreement with the Government “.
– We have never discussed it with you at all.
– The Deputy Leader of the Opposition is of short memory. I can remember that during the periods when it has been my responsibility to act for the Leader of the House (Mr. Harold Holt), the Deputy Leader of the Opposition and I have met behind the Speaker’s chair and I have said, “ Will we agree to this?”, and he has said, “ No. The Government must make its decision”. He is obliging us to make a decision, because he knows full well - we sympathize with him in his humiliating position. - that if he made an arrangement, he could not be certain that he would have the backing of the members on his own side for carrying it out. He knows full well that on his own side there are some who would smile broadly at his public humiliation while they did something contrary to the arrangement which he had made with the Government.
We accept the responsibility of making the decision. As the Government, we have charge of the House. We are responsible to all members of the House for the orderly conduct and the progress of its business item by item. Discharging that responsibility and avoiding unnecessary procedures of frequent closures, and without truncating the debate unduly-
– Order! The Minister’s time has expired.
.- Mr. Speaker, the Minister for Territories (Mr. Hasluck) has just uttered the kind of selfrighteous humbug that we have come to associate with him. The Government is not entitled to receive any co-operation in this House when it attempts to deal with a bill in the manner in which it has attempted to deal with this Crimes Bill. Anybody would think, hearing the way the Minister for Territories ‘ has spoken, that we were in the Legislative Council of a Territory.
– Order! The time allotted by Standing Order No. 92 for the discussion of the motion for the allotment of time has expired.
Question put -
That the motion (vide page 3082) be agreed to.
The House divided. (Mr. Speaker - Hon. John McLeay.)
Majority . . . . 26
Question so resolved in the affirmative.
In committee: Consideration resumed from 17th November (vide page 3067).
Section twenty-four of the Principal Act is repealed and the following sections are inserted in its stead: - “ 24aa. - (1.) A person shall not -
Penalty: Imprisonment for life. “ (4.) In this section, ‘ proclaimed country ‘ means a country declared by proclamation to be a proclaimed country for the purposes of this section, and includes -
Penalty: Imprisonment for fifteen years. “ (3.). On a prosecution under this section it is not necessary to show that the accused person was guilty of a particular act tending to show a purpose prejudicial, or intended to be prejudicial, to the safety or defence of the Commonwealth and, notwithstanding that such an act is not proved against him, he may be convicted if, from the circumstances of the case, from his conduct or from his known character as proved, it appears that bis purpose was a purpose prejudicial, or a purpose intended to be prejudicial, as the case requires, to the safety or defence of the Commonwealth.”.
.-I move -
In proposed section 24aa, sub-section (1.), omit “ in an attempt “, insert “ with intent “.
This amendment is inline with several others which the Opposition has circulated. All of them are designed to ensure that, under the terms of this bill, criminality will attach to an act only if it is intentional and* deliberate and not merely inadvertent and unknowing.
– The Government is prepared to accept this amendment not, I may say, because the words” in an attempt “ do not necessarily involve a deliberate act but because the words “ with intent “ do make the section cover a wider area than is covered by the words “ in an attempt “.
Amendment agreed to.
.- I move -
In proposed section 24aa, sub-section (1.), omit “ or sabotage. “.
The word “ sabotage “ is not defined in this proposed new section. It is useful to recall a passage between the Minister for Labour and National Service (Mr. McMahon) and the Leader of the Opposition (Mr. Calwell) on this very subject. We are familiar with the special pleading of the Minister for Labour and National Service: We know that he is frequently short on facts; it is a pity that in this instance he was short on law. The Leader of the Opposition stated -
Proposed new section 24aa would treat as treachery … an attempt to overthrow the Constitution of the Commonwealth by sabotage, but sabotage is not defined.
The Minister interjected -
Have a look at proposed new section 24ab.
The Leader of the Opposition said -
I will come to proposed new section 24ab in due course.
When the Minister spoke, he said -
I come now to the second objection, that relating to sabotage. Clause 24ab is the relevant provision. To illustrate the confusion in the mind of the Leader of the Opposition, I mention that he first made the astonishing statement that there was no definition of “ sabotage “. Later he corrected himself and referred to what “ sabotage “ actually meant as set out in clause 24ab.
What the Leader of the Opposition said is perfectly correct. There is no definition of “ sabotage “ in proposed new section 24aa which deals with treachery. It is quite plain that the definition of “ sabotage “ in proposed new section 24ab which carries the marginal note “ Sabotage “, relates to that section alone. Indeed, the very first words of the section are, “ In this section, ‘ act of sabotage. ‘ means . . . “ Sabotage is included here in the comprehensive spirit in which the AttorneyGeneral has ransacked the criminal legislation of all the English-speaking countries to find something that could be made a fresh crime.It is true that the word “ sabotage “ is used in the same sentence as this in section 30a of the principal act, where it is one of the ingredients of the propaganda which qualifies an association to be declared unlawful, in Part Ha. But there is no definition of sabotage there, either, and it is pretty plain from reading section 30a that sabotage there refers to a course of conduct. Sabotage in the proposed new section refers probably to a single act.
We certainly believe that it should be a crime to do anything with intent to overthrow the Constitution by revolution or to overthrow by force or violence the established government of the Commonwealth or a State, but we believe that sabotage is too indefinite a term to import in that connexion. It need not be force or violence; it certainly need not amount to revolution. It is an undefined term. It does not occur, as. far as I am aware, in any State act in Australia. It does not occur, as far as L am. aware, in any British act. It does not occur, as far as I am. aware, in: any. Commonwealth- act other than in section 30a of the Crimes Act, and proposed new section 24ab imported by this> bill. We believe that there is no need for it in this proposed- section. If sabotage in a defined sense is committed, it comes within the penalties imposed by proposed new section 24ab, and they can amount to imprisonment for fifteen years. We think that sabotage; properly defined, is a crime and is adequately punished’, in the subsequent section. We see no need, to put in anundefined new term: in. this new offence 06 treachery.
.- Proposed new section 24aa goes to the root of the. proposals in the bill which may have an impact upon the political and social behaviour of members of the public: I support the Deputy Leader, of the Opposition in asking’ the Government, if it is going, to enact legislation of. this kind, to make its meaning: as clear and precise as possible. Tt is of no use saying that a law which provides that it is an offence to do any act or thing with intent to overthrow the Constitution of the Commonwealth by revolution or sabotage is in any way clear and precise. Behaviour coming within the provisions of this proposed new section would depend completely upon the circumstances. In countries where these matters- have- reached the courts, such as the United States of America, it has been the responsibility of the courts to determine the circumstances of the alleged offence and to determine, in relation to the public disorder or commotion, the clear and present danger that exists in the circumstances. But in Australia there is no history of court decisions and no constitutional safeguard which would allow that kind of test to be applied.
This is an offence which’ is vague and general, and it is based on the new offence of treachery. If the Government is concerned to define an- offence; why not do- so in a precise and objective fashion rather than attach to it a coloured term Such as treachery, which would be directed to prejudice the trial of- any person accused of an offence under this provision. To say that there is some historical antiquity favoring the use of such words as “ treason “ and “treachery” is no justification for their adoption in I960 by a. government that believes- in unprejudiced, trials and decency im law. This- kind of section has given rise to a number of cases in the United’ States and the question of loyalty has been raised’ in the courts. I want to refer the committee and those interested in this matter to a conclusion drawn by Zechariah Chafee recently.. The whole question of loyalty is put intoits proper context. He said. -
Behind the dozens of sedition bills in Congress last session-
That is, in the United States - behind teachers’ oaths and compulsory flag salutes,, is a desire to make our citizens loyal to- their government. Loyalty is a beautiful idea, but you. cannot create it by compulsion and force.
At this early stage in the attempt to. introduce laws of compulsion and force in order to- achieve loyalty, I think attention should be drawn to the last ten years of history inthe United States in this connexion. Mr. Chafee1 went on -
A government is at bottom the officials who carry it on: legislators and prosecutors, school superintendents and police. If it is composed of legislators who pass shortsighted sedition laws by overwhelming majorities-
That was the shadow of the future in Australia - of narrowminded school superintendents who oust thoughtful teachers of American history and eightyearold children whose rooted religious convictions prevent them from sharing in a brief ceremony - a government of snoopers and spies and secret police - how can you expect love and loyalty? You make men love their government and their country by giving them trie Kind of government and the kind of country that inspire respect and love: a country that is free and unafraid, that lets the discontented talk in order to learn the causes for their discontent and end those causes, that refuses to impel men to spy on their neighbors, that protects its citizens vigorously from harmful acts while it leaves the remedies for objectionable ideas to counterargument and time.
The men who examined the situation in the United States came to the conclusion that loyalty, which this Government is trying to secure by this proposed new section, had’ become, a cult and an obsession in the United States, hut it was negative. And no less a conservative than Senator William E. Borah said this -
The safeguards of our liberty are not so much in danger from those who openly oppose them as from those who, professing to believe in them, are willing to ignore them when found inconvenient for their purposes; the former we can deal with, but the latter, professing loyalty, either by precept or example, undermine the very first principles of our government and are far the more dangerous.
The concept that Senator Borah was putting was that danger to security can come from two sources - from those who openly oppose safeguards of liberty for reasons which may or may not seem good to themselves, and from those who, relying upon loyalty and the force of the status quo of government, endeavour to restrict activity in the community by the force of law. He was telling us that the dangers to liberty in the United States, in his opinion, were coming more from those who, relying upon loyalty and the exercise of the powers of law, were capable of destroying liberty in that country.
Sub-section (1.) of proposed section 24aa will apply to a wide range of activities which have never been defined in Australia. The provision should be capable of application only in some emergency when there is some clear present danger, or where there rs a serious breach of the peace. But the Government is unwilling to insert the necessary safeguards. If it does not propose to invoke this provision unless there is an emergency or an existing danger, why does it not write into the law the provision that some emergency must exist before the law can be used? But the Government wants it both ways. It wants a law which would be applied in any democratic country only in case of emergency, or when there is a serious breach of the peace, but it is not prepared to write these necessary safeguards into its legislation.
Proposed section 24aa contains a principle that should never be agreed to by any democratic parliament. When considering this type of law, we should be prepared to include the safeguard that it will apply only where there is a breach of the peace or where there is some clear and present danger. The lawyers surely ought to be able to draft a suitable provision. But no, this Government wants a blank cheque. It wants this extremely wide and extremely vague provision which it can apply to any person at all with whom it disagrees. Such a person can be brought within the full force of the law and the full force of the indirect intimidation upon which the Attorney-General himself has admitted he relies in order to bring about a degree of conformity and to counter any radical activity. That is the real reason for the legislation.
.- This proposed new section is the greatest possible proof one could have that the bill is in reality a prosecutor’s measure; that it is designed deliberately to make prosecution easy and to remove protection from the defendant. The Deputy Leader of the Opposition (Mr. Whitlam) has moved that the words “ or sabotage “ be deleted. I submit that is a most valid amendment. This provision is also symbolic of the imprecision which characterizes the whole bill.
We could have no greater proof that “ sabotage “ is indefinable and undefined or that this measure contains no protection whatsoever, than the definition of “ sabotage “ contained in the dictionary which is on the table of this chamber. That dictionary says that the word “ sabotage “ probably originated from the use of heavy wooden sabots - or shoes - to kick and injure persons or property. The meanings given are -
Accepting these meanings as definitions of the word, clearly one can argue that this provision is particularly directed at trade unions and their activities. But the situation is even worse than that. The AttorneyGeneral does not know what he means by “ sabotage “ and we do not know what he means by it. In fact, nobody knows exactly what is meant by “ sabotage “ in this measure and there is no reason why any law of this Parliament should use terms of such imprecision. For that reason, I support the amendment proposed by the
Deputy Leader of the Opposition, and I oppose the provisions of this bill.
As the honorable member for Yarra (Mr. Cairns) pointed out, this is an emotional term. “ Treachery “ is an emotional term. In what way is treachery different from treason? As far as I can see from reading the bill, treachery is an act against any country which is proclaimed - one of this country’s friends for the moment. What countries could they be? There could be trouble in the Middle East, perhaps between Israel and the Arabic nations. Perhaps our oil supplies from the Middle East would be menaced and passions would be aroused in Australia. Perhaps fearing industrial action here to aid one side or the other, the Government would proclaim all countries involved. The proposed measure therefore constitutes a menace to legitimate political and industrial action and for that reason this Parliament should reject the provision, first because of its general tenor and secondly because of the use of the word “ sabotage “. I shall be pleased indeed if the Attorney-General can give us a precise definition of the term “ sabotage “ and thus remove from it the emotional content and the atmosphere that I find associated with it when I turn to the definition contained in the dictionary which lies on the table of this chamber and which ought to be the logical repository of definitions for a parliamentary body.
– The honorable member for Yarra (Mr. Cairns) referred to the political behaviour of a particular section of the community and the effect of those proposed amendments on that section. Remembering many of the speeches of the honorable member for Yarra, I wonder what section of the community he has in mind. I recall that one section of our community, the Communist Party, is pledged to the overthrow of the Constitution of this Commonwealth and is strongly protesting against the amendments proposed by this measure.
The amendments before the committee assume real importance when one refers back to the findings of the Victorian royal commission on communism. The commission’s report stated amongst other things that the aims and objects of the Communist Party in Australia are to overthrow the State, to smash the existing State machine, to introduce socialism by expropriating the present ownership of the means of production and distribution - which, of course, is what the Labour Party calls nationalization - and, ultimately, to introduce communism throughout the land. I remind the committee of the High Court judgment which ruled against the validity of the Communist Party Dissolution Act and which disclosed grave defects in the power of the Parliament of the Commonwealth, in time of peace, to protect this nation against treacherous agents acting for a foreign power - agents who are quick to invoke,, either themselves or through their spokesmen, the names of freedom and justice whilst working to engineer the destruction of the foundations upon which freedom and justice rest.
Dr. Evatt made this statement
From the point of view of the Australian Labour Party, it is a fundamental proposition that any person who attempts to endanger in any way the internal security or defence of the country can be, and should be dealt with under the laws contained in the Crimes Act. … If the existing criminal law needs strengthening in these respects, the Labour Party will support amendments to it.
The present Leader of the Opposition (Mr. Calwell) had this to say -
There are also sections of the original act, the Crimes Act 1914-1959, which the Opposition believes should be revised by the Parliament. . . . The clauses of the present bill … to which the Opposition takes the strongest possible exception . . . are provisions which deal with . . the offences which the bill calls treason, treachery, sabotage.
Dr. Evatt must have considered that there were weaknesses in the Crimes Act, because this committee will recall that when Communist threats were made to hold up work on the guided missiles testing range, the then Labour Government secured the passage of the Approved Defence Projects Act which prescribed penalties for any boycott of defence projects. It will also be recalled (hat when the Communist Party attempted to sabotage production in this country by fomenting a general coal strike in 1949, the then Labour Government secured the passage of the National Emergency (Coal Strike) Act. The Opposition has expressed opposition to this and other amendments to the existing Crimes Act. It is interesting that in no speech on these amendments has any speaker for the Labour Party spoken out against communism in Australia or used the danger of communism in support of any argument he has presented on these amendments. Let us again examine section 24aa, which states -
A person shall not do any act or thing in an attempt to overthrow the Constitution of the Commonwealth by revolution or sabotage-
We are reminded at once of the aims of the Communist Party of Australia, as outlined by the royal commission on communism. Is it any wonder that at this very moment, and indeed since the amendments were first announced, the Communist Party has been organizing a supreme effort to defeat the amendments which are now before the committee? Are we surprised to see the amendments attacked by the honorable member for East Sydney (Mr. Ward), the honorable member for Parkes (Mr. Haylen), the honorable member for Reid (Mr. Uren) and his ghost writer, the honorable member for Yarra (Mr. Cairns)? We have further proof of their efforts to sabotage this bill. All honorable members will recall that certain Labour members were sooling the Communists onto Government members right here in King’s Hall in this Parliament House, only a few weeks ago. The Communists were protesting against the very amendment we are now discussing. In reference to these protests I quote from the Communist “ Tribune “ of Wednesday, 9th November, when it referred to these protest delegations in the following terms: -
There were rank and file members of both the Australian Labour Party and the Communist Party. On reaching Parliament House the deputations divided into 12 working groups. These groups, assisted by a number of Labour members, including the honorable member for Shortland (Mr. Griffiths), the honorable member for Newcastle (Mr. Jones), the honorable member for East Sydney (Mr. Ward) and the honorable member for Parkes (Mr. Haylen) and others set out to interview Government party representatives.
What the “ Tribune “ really meant was that the Communists set out to waylay members of this Parliament in King’s Hall and it is a tragic thought for this country that they were assisted by Labour members of this Parliament. We know that the rank and file of Labour Party members opposite are opposed to communism, but there are others, as we all know, who are always plugging, the Communist line. They have been most vocal against these amendments. But many honorable members opposite are glad that the gag has been used by the Government. Some of the Labour members who have not spoken are in favour of all the amendments put forward by the Attorney-General, and no wonder, because these amendments will ease the minds of all freedom-loving people and will result in a sound piece of legisation that will be Australia’s Rock’ of Gibraltar for the future security of this nation.
– Sir, the speech we have just heard is easily the most important contribution to this debate that we have had from the other side so far.
– How many other important contributions were there?
– There were not any others. What the honorable member for Stirling (Mr. Cash) says is something that ought to be causing all Australians great concern, because here we see the real pattern of this legislation being revealed. It was never intended by the more erudite members of the Government that this should be revealed until after the legislation became law, because it is quite clear that the Government intends to put in the word “ sabotage “ to cover treachery and every kind of activity that it is possible to imagine in the field of politics. The honorable member for Stirling has indicated that if he had his way he would make it am offence for a citizen of this country to way-lay - that is the term that he used - a member of Parliament in King’s Hall. Government supporters show, by their interjections, that they disagree with that statement, but I emphasize that. He said that members of Parliament were being waylaid by Communists and others in King’s Hall. He said that it is terrible that this sort of thing should be permitted in this country. Presumably, the whole gravamen of his speech was that this law was necessary in order to prevent people from talking to members of Parliament.
What I am concerned about is the definition which the honorable member gave to the word “communism “. He said that it was clear beyond doubt that a Communist is a person who belongs to a party which believes in overthrowing the Constitution of the Commonwealth by force and by violence. Therefore, it surely follows that, if the Communist Party believes in the overthrow of the Constitution by violence or by revolution, every member of that party will become guilty of an offence under this measure, merely by being a member of the Communist Party.
– He has a remedy.
– What is it?
– To pull out of the Communist Party.
– So unless people pull out of the Communist Party they are to commit an offence against this legislation! See the devious means by which the Government is proposing to bring about a state of affairs which the people, by referendum, declared was unacceptable to Australians when they rejected the Communist Party Dissolution Act, and a state of affairs which the High Court of Australia said should not be tolerated in this country. The Government is trying to achieve, by means of this legislation, what it failed to achieve at a referendum and what it failed to achieve in the High Court, when that court rejected the Communist Party Dissolution Act. You look surprised at this, Mr. Chairman-^ -
– I am astounded.
– You look surprised at this, Sir, and you sound it. I am sure everybody would be astounded and grieved to know that, as the honorable member for Stirling now discloses, !any member of the Communist Party - I have not finished yet; this, is just coming to another point - will be guilty of sabotage unless he pulls out of the Communist Party and . . .
– The provision does not say that.
– -The honorable member for Stirling, has made it clear that- that is what the provision says and I think he would know as much about this ;as would, the honorable member for Wide Bay (Mr. Bandidt). He ma.4e it clear when “he read a prepared, speech - not just some speech given off the cuff. He read a carefully prepared speech, no doubt prepared for him by officers of the Crown Law Office «or the Attorney-General’s Department. It was not just a slipshod speech or a slip of the tongue. He carefully and deliberately stated that to avoid prosecution a person would have, for a starts to resign from the Communist Party. This means that every Communist union secretary would have to resign from the Communist Party.
– Will you let them know?
– They can read the honorable member’s speech and in that way find out what is to happen to them.
Another part of the same provision says that not only can countries be proclaimed, but also that persons can be proclaimed. It would be a relatively simple matter to proclaim, as a group of people against whom the defence forces of this country were opposed, the Communist Party of Australia and its members. Then it is only a very short step away from the old method, proposed in the Communist Party Dissolution Act, to declare a person to be a Communist whether he is a member of that party or not.
I do not like the use of the word “ sabotage “, because it goes even further than the honorable member for Stirling said it went. “ Sabotage “ could conceivably mean any attempt to bring about a general s.trike in order to force a change in the Constitution. The time could very well come when through decisions of the High Court constantly hamstringing the power of the Commonwealth Parliament, the people of this country could conceivably reach the stage when they might say: “We no longer have democracy in the true sense of the word. We have a nominal right to eject a parliament, but the. High Court has so hamstrung the powers of that parliament by its interpretation of the Constitution that the real governors of this country are not the Parliament but the High Court judge*, who are appointed for life “. If the people of Australia reached the stage where they felt that parliamentary democracy had become nothing but a hollow sham, it might very well be that the trade unions of Australia could see that there was no alternative for them but to organize a general stoppage and strike” until such time as the Constitution was altered in such a. way as to allow the elected’ Parliament to govern in the interests of the people. They might ask what is the use of electing a parliament if the Constitution is to be interpreted by the High Court in such a way as to prevent the elected Parliament from governing in the interests of the people.
.- The honorable member for Hindmarsh (Mr. Clyde Cameron), as I understand his argument, has tried to convey the impression that a member of the Communist Party can be convicted of treachery simply because he belongs to the Communist Party.
– The honorable member for Stirling said so.
– I am not concerned with any argument between the honorable member for Hindmarsh and the honorable member for Stirling (Mr. Cash), but I am concerned with the proposals contained in this amending bill. As the honorable member for Hindmarsh has not read the proposed section, I shall do so to make its meaning clear, Proposed section 24aa is in these terms - (1.) A person shall not -
Do any act or thing in an attempt -
I merely say in conclusion that any person who does any act or thing in an attempt to overthrow the Constitution of the Commonwealth by revolution or sabotage deserves everything that is coming to him.
Question put -
That the words proposed to be omitted (Mr. Whitlam’s amendment) stand part of proposed section 24aa.
The committee divided. (The Chairman - Mr. G. J. Bowden.)
Majority . . . . 22
Question so resolved in the affirmative.
.- by leave - I move -
In proposed section 24aa, sub-section (1.), omit “, of a State or of a proclaimed country “, insert “ or of a State
The consequence would be that a person would commit the crime of treachery if he did any act or thing with intent to overthrow by force or violence the established government of the Commonwealth or of a State, but not if he did so in respect of a proclaimed country. The provision regarding proclamations of countries and of enemy countries will be the subject of later amendments, but at this stage I invite the attention of the committee to the fact that this paragraph (a) is not limited, as is paragraph (b), to action within the Commonwealth or a Territory not forming part of the Commonwealth. Under this paragraph a person can commit treachery if, anywhere in the world, he does an act or thing with intent to overthrow by force or violence the established government of a proclaimed country. The combined effect of proposed section 24aa (1.) (a) (ii) and proposed section 3a will be to penalize conduct beyond the Commonwealth and the Territories by persons who could have no knowledge of a proclamation or of its effect, but who subsequently may become subject to the jurisdiction of Australian courts. Australians overseas are not aware of these proclamations. They do not see the “ Gazette “. They may in some circumstances do an act or thing to overthrow the established government of a proclaimed country while not knowing that the country has been proclaimed. If they come back to Australia they may find that they have committed a crime and are subject to prosecution for an offence which attracts a penalty of imprisonment for life.
The whole procedure of the proclamation of countries can be an invidious and mischievous one. We should either enforce a neutrality in the attitude of our citizens towards all other countries or we should provide that our citizens and those of other countries should undertake mutual and reciprocal rights. It is invidious to pick out which countries we are to protect and which countries, by inference, we are not to protect. In any case, there are limitations already in the law on the extent to which Australians may enlist in the armed forces of other countries. The Foreign Enlistment Act of 1870 - an Imperial act which applied to Australia and still applies to Australia - provides that it is a crime for any British subject, within or without Her Majesty’s dominions, to accept or agree to accept any commission or engagement in the military or naval service of any foreign State at war with any foreign State at peace with Her Majesty or, whether a British subject or not, within Her Majesty’s dominions to induce any person to accept or agree to accept any commission or engagement in the military or naval service of any such foreign State.
There are also, Sir, penalties for embarking persons for foreign service, for building ships for such foreign service, and the like. The act is quite extensive. It still covers Australians who engage in these freebooting operations. It is, we submit, unnecessary to introduce this other act of treachery within the new section governing treachery. Above all, there is the objectionable feature that Australian citizens can commit a crime without knowing it.
.- The attitude of the Opposition in this matter is quite extraordinary. It has been suggested by members of the Opposition that this offence of treachery is something that has been dreamed up out of nowhere. That, of course, is quite untrue. It may be that the word “ treachery “ as applied to the offence is new - although I deny that - but that is as far as the Opposition could go. The truth of the matter is that those acts which will constitute treachery under this bill constituted treason under the common law. As the Attorney-General pointed out in his second-reading speech, there are categories into which, in modern days, these offences should be split, because some acts should attract greater penalties than others. This, I believe, is what has in fact happened in this bill. That which is, under this bill, to be an offence of treachery was formerly part of the offence of treason under the common law. It is not new to the common law. We can again resort to Halsbury on this. At page 561 of the third edition of “ Halsbury’s Laws of England “ it is stated -
A person adheres to the Sovereign’s enemies who, in conjunction with those enemies, commits hostile acts upon an ally of the Sovereign who is also at war with the Sovereign’s enemies.
Because of the changed circumstances of modern life, and the changed nature of war, it has become increasingly apparent that the formality of a declaration of war is no longer a part of international relationships. A state of war can readily exist without the formality of a declaration of war. Hence the provision in respect of the proclamation of countries.
I believe that the provision for the proclamation of countries is most necessary, for it follows quite clearly that if we formed an alliance with a country and, as a result of that alliance, that other country stationed some article or equipment of war in our territory, we would then owe a duty to our ally to prevent our own subjects from destroying that equipment. The same would apply in reverse. If we sent troops and articles of war overseas we would expect our overseas ally to afford our troops and equipment the same protection. It follows further that if we had an alliance with another country in order to repel a common enemy we would have an interest in retaining the government of that proclaimed country, because if that government were overthrown by force we could not be sure that the alliance we had. entered into would subsist - and we would have entered into that alliance only because it was necessary, in our own interests. In the protection of those interests it is- proper to make it an offence for one of our own’ citizens, subject to our own law, to- essay the overthrow by force or violence of the government of. an allied or proclaimed country.
The safeguard’s, if any are needed; are three in number. First, the proclaimed country must be proclaimed by the Houses of the Parliament; and secondly, a proclaimed enemy must be proclaimed by the Houses of the Parliament. I interpolate here that I recall’ in my second-reading speech on the bill I suggested that if would be desirable that an enemy should be proclaimed, and I am very glad that this is, in fact, to be done. The other main safeguard comes in categories (a) and (b) - jury trial and judicial’ interpretation. Those are things that we have clung to for centuries, and they are things which have proved a safeguard throughout those centuries. They will remain under this legislation.
In the debate on this clause some matters have been raised which are clearly quite wrong. The Deputy Leader of the Opposition said in his last address to the committee that it is not fair to make it an offence for an Australian beyond Australia or Australia’s territories to be subject to this proposed section in relation to the commission of the offence of treachery, because, the honorable gentleman said, an Australian overseas could not know of the proclamation of a country or of the proclamation of an enemy. The Deputy Leader of the Opposition said, according to my recollection, “ He assists in the overthrow of that government, but then comes back to Aus tralia and finds himself charged”. Let us be realistic about this. Nowhere in the world does anybody set about assisting in the overthrow of a government without making a very close scrutiny as to whether what he is about to do is an offence and, if so, what sort of offence. It is idle to suggest that an Australian living overseas would enter- into this sort of activity without first ascertaining whether or not what he was about to do or, having done it, whether or not what he had done, would render him subject to penalty or prosecution on his return to Australia.
The honorable member for Yarra (Mr. Cairns) said that the provision in regard to treachery was vague. I find it incredible that the honorable member for Yarra should regard- it as, vague. I feel that it is a very tight provision. It makes perfectly clear what the offence of treachery is. There is no vagueness about it. If somebody enters into a course of action which amounts to treachery under this bill, a jury will determine the issue. I do not think a jury will have great difficulty in reaching, a determination in fact as to whether an offence was committed. If jurors had any doubt, then in accordance with our laws the accused would be entitled to his acquittal.
The honorable member for Yarra (Mr. Cairns) has suggested that you do not create loyalty among your subjects by creating this offence. Of course that is true. You do not create loyalty. Nobody would suggest that this bill is designed to create loyalty. We do not need to create such an offence to create loyalty. We have in this country the overwhelming loyalty of 99.99 per cent, of this population. It is that vicious minority which is prepared to destroy our way of life that is the danger, and it is for that minority that we have to create the penalty.
It is not designed to create loyalty at all, and I deprecate the suggestion by the honorable member for Yarra that he considers the Australian population is being whipped along to loyalty by such legislation as this. He knows it not to be true. He knows that we would not apply a provision like this unless there is danger or crisis. Let us make no mistake about this::
For a country or an enemy to be proclaimed, nobody would suggest that we had not reached something like a crisis. Indeed, I would say that any proclamation such as this, if a crisis had not occurred, would provoke a crisis. This provision will enable action to be taken in case there is no formal declaration of war. The task of making a declaration would not be lightly undertaken by the Government, and it is a task which would not be lightly undertaken by members of this chamber who would have to vote on such a proclamation. Therefore, what the honorable member for Yarra asks for is ascertained .and ascertainable.
The honorable member for Wills (Mr. Bryant), in his characteristic fashion, not knowing what it is all about and certainly not knowing what he was going to vote on, said that the use of the word “ sabotage “ in this bill would mean an infringement of trade union rights. He is apparently unaware of what the Deputy Leader of the Opposition pointed out, namely, that the word sabotage is in the principal act and has been there since the enactment of the principal act. It cannot interfere with the trade union activities of anybody.
It is true that the jury lists of this country have been extended to a point where almost anybody who is adult and who is qualified by the lowest degrees of qualification, may serve on a jury. If you look at a jury list, you will find a wide range of names and types of names. If you look at the occupations, you will find every occupation listed. A number of people have been in King’s Hall recently. I asked every one of them to whom I spoke, “ Are you eligible for the jury list? “ Many of them did not know whether they were on the list, but something like 60 per cent, of them said ,” Yes, I am on the jury list “. These are of the very people who are likely to be called to serve on a jury. Are they likely to make the curious finding of fact suggested by the honorable member for Wills?
.- The honorable member for Bruce (Mr. Snedden) rs supposed to be a lawyer.
– Is a lawyer; not supposed to be.
Mr. -CAIRNS.- Well, we will see how good a -lawyer you are before this is over. The honorable member began with a statement that the law with regard to sabotage could not apply ‘to a trade union. He said that there might be trade -unionists on juries, and therefore it would not apply. The point we on the Opposition side are making is that we are concerned with the legal definition of the law and whether the law as it appears in the bill will apply to trade unionists. At the right time, we will argue that it will apply. But the answer put forward by the honorable gentleman, who is supposed to have advanced a lawyer’s argument that it will not apply because there are “likely to ‘be trade unionists on juries, is a totally vicious argument and completely irrelevant to the discussion.
Let us look again at his example of the law. This is put forward by an honorable member who claims to be setting out a lawyer’s argument. He said that what is supposed to be treachery in the bill is in the common law. Was it ever treachery to harm any country other than your own? Was it ever treason to harm any other country? It has never been treason to break loyalty or allegiance to any country other than your own. The introduction of this idea of a proclaimed country has not been in the common law of this nation or in the law of any other country, and any one who puts it forward as a lawyer’s argument has no legal ground for doing so.
The second thing about this provision is the introduction of the proclaimed country. The government for the time being, which might have a majority of one or two, will be able to select any one of the countries of the world and proclaim it, and will make it an offence punishable by life imprisonment to harm that country. That has never been in the common law and it has not been thought of by any government of a civilized country before. I regard it as completely obnoxious and objectionable to ask any citizen of this country to give allegiance and loyalty to a foreign country which might be proclaimed by a government with a temporary majority in this Parliament. It is completely wrong and unsound and has never happened in any civilized country before.
As the Deputy Leader of the Opposition has pointed out, this proclamation is to be made in Australia and it will apply throughout the world. Any Australian citizen who may be in another part of the world can commit an offence by harming some obscure country somewhere in the world that this Government, in Australia, has said is a proclaimed country. In order to be aware of that fact, a citizen who is abroad has to read Australian literature, papers, and “ Hansard “. He has to be in a position to know that a country has been proclaimed. It is quite reasonable to suggest, as the Deputy Leader of the Opposition has done, that an offence could be committed under this provision by an Australian elsewhere, and he would have no knowledge that he had committed that offence.
The honorable member for Bruce said that in to-day’s world, the formal declaration of war is no longer in use. I challenge that statement. There have been very few cases in which war has taken place and there has not been a formal declaration; and the assumption on which this proposition is based by the Attorney-General will not stand up to examination. Even if it were true, and even if some countries adopted a practice of going to war without declaring war, is that any reason why this country should adopt what is an obnoxious practice? You argue that the lowest people in the community and the lowest standards in the world are such, and then immediately you begin to adopt them! That is the kind of argument that should not be put forward and accepted by any one.
The honorable member for Bruce said that we owed a duty to an ally; that we might be associated in some place in Australia or elsewhere in some military action with an ally, and, therefore, that we must have this proclaimed country procedure in order to protect that ally. If that is what the Government is concerned with, why not put provision in the law making it an offence to harm the troops of an ally with which you are associated? But the Government does not do it that way. It is introducing a wide provision that can apply in any circumstances - not the circumstances with which the honorable member for Bruce is concerned, but circumstances which could be the widest in their application.
The honorable member said that where you have an alliance, it is necessary to have a provision to protect the country with which you have an alliance. There is no need for an alliance in relation to this provision. The Government could have any country in the world proclaimed, whether we have an alliance with a country or not. No argument can be based upon an alliance because an alliance is not necessary. You could select a country like South Korea under Syngman Rhee or Turkey under Menderes or Cuba under Batista. You could proclaim those countries by a narrow majority in this Parliament, and it would become a breach of your fundamental alliance to harm those proclaimed countries. Nothing like that has happened in this country before or, so far as I am aware, in other countries.
How will this proclamation be made? Let us take it in two steps. First we proclaim a friend, and then take a second step and proclaim the enemies of the friend. Are we going to ring Washington when we have proclaimed the United States of America and say, “ Mr. President, we want to proclaim your enemies for you. You have not done this, but we will do it.”? Or if we do not keep in touch with Washington and ask for a list of the enemies of the United States so that we can proclaim them, are we going to do it from Canberra? Are we going to take the initiative in this spontaneous unilateral action of proclaiming the enemies of our friends? Will we take the responsibility here in Canberra of selecting those enemies or undertake discussions with the government of the friendly country? What, precisely, is the machinery which the Attorney-General has in mind for the application of that and other provisions?
In order that as many members of the Opposition as possible may put forward their point of view, Opposition speakers have had to ration their speaking time carefully because of the application of the guillotine to this debate. Consequently, I shall conclude by saying that I oppose completely this “ proclaimed country “ provision. It is completely obnoxious and objectionable to ask any Australian citizen to pay allegiance to a foreign country which happens to be selected by a government temporarily holding office in this Parliament, and to render him liable to a penalty of life imprisonment if he does not do so. The whole provision is completely obnoxious and objectionable and no Australian should subscribe to it.
.- I propose to disregard the rather warped reasoning of the honorable member for Yarra (Mr. Cairns) because it has no relation to the science of semantics. I would like to question the statement made by the Deputy Leader of the Opposition, who, if my memory serves me rightly, referred to an Imperial act of 1870 as applying to Australia.
– I referred to the Foreign Enlistment Act.
– I remind the Deputy Leader of the Opposition that he would be quite correct if section 2 of the Colonial Laws Validity Act still applied to the Commonwealth of Australia, but it does not. Under sections 2 to 4, particularly section 2, of the Statute of Westminster, no law of the Imperial Parliament applies to, nor shall any future law of the Imperial Parliament apply to, the Commonwealth of Australia without the consent of the Commonwealth. To the best of my knowledge, since that legislation was passed at the instigation of the former Leader of the Opposition, Dr. Evatt, in 1942-
– But that applied to acts thereafter passed by the Imperial Parliament, not to acts which had previously been passed and already applied.
– With due deference, I disagree because if that were so, on your own argument, the common law of Great Britain would have applied and there would have been no necessity, as has been already pointed out by the Attorney-General, to apply the common law in the federal sphere because of the passing of the Statute of Westminster. Although the AttorneyGeneral was very careful in his secondreading speech to point out the import of the Statute of Westminster, I have not yet heard a single member of the Opposition, in dealing with this bill, refer to the implications of that statute.
Question put -
That the words proposed to be omitted (Mr. Whitlam’s amendment) stand part of proposed section 24aa.
The committee divided. (The Chairman - Mr. G. J. Bowden.)
Majority . . . . 20
Question so resolved in the affirmative.
.- by leave - I move -
In proposed section 24m, sub-section (1.), omit paragraph (b).
Paragraph (b) in its original form makes it an offence to -
We have, Sir, the same technical objection to sub-paragraph (i) concerning levying war or doing any act preparatory to levying war, that we had to the use of the same phrase in proposed new section 24, which dealt with treason. There is an added technicality with regard to the provision now under discussion. It will be levying war to perpetrate a riot or insurrection for a general purpose. Hitherto this has always been confined to doing such things within the realm, against the Sovereign. In this sub-paragraph the phrase is being used, not in the sense of against the Sovereign, but within the Sovereign’s realm. We have this very nice point: What would amount to a riot or insurrection for a general purpose in Australia against another country?
The second sub-paragraph, in its original form, was objectionable on two grounds. First, it provided that it shall be treachery to assist, but it did not specify that there must be intent to assist. Despite what the Attorney-General has said of previous cases, one can call in aid a Canadian decision, just as the Attorney-General has called in aid a Canadian statute. This decision has been quoted by learned counsel, among them senior counsel, whose remarks have been reported in the daily newspapers. A Chief Justice of one of the Canadian provinces said in 1917 that assisting, irrespective of intent, is the test of liability.
There was a second objection to this sub-paragraph in its original form, lt made no provision for ensuring that people would know who were the enemies of and at war with a proclaimed country, whom it would be a crime to assist. The Attorney-General has now circulated an amendment which will provide an acceptable answer to both those technical objections to proposed subparagraph (ii). It is in similar terms to an amendment that we have circulated. But there is to this whole paragraph (b) the same objection that has already been expressed to the provision for the proclamation of other countries’. The whole concept of proclamation of other countries is a novel one. It is- not found in the legislation of Great Britain, or, as far as I know, of any other English-speaking country. We believe that we should not embroil our country in wars without the consent of the Government of this country.
There are two ways in which we can ensure this. We can either ban all activity of a warlike’ nature on behalf of or in other countries, as has already been achieved by the Foreign Enlistment Act of 1870 - upon which- I respectfully differ from the honorable member for Griffith (Mr. Chresby) - or, alternatively, we can make a treaty, bilateral or multilateral, with another country or other countries, to provide that there shall be mutual abstention from hostilities or intrigue. There can be no doubt that Australians should not become involved in hostilities with other countries without the consent of the Australian Government. It is not for individuals to determine the foreign policy of the Australian Government. The proposed provision, as it stands, is not only novel; it is also unilateral, as distinct from mutual or reciprocal, and it is discriminatory. You ban activity against certain countries. You do not ban it against other countries. We should ban such activity against all the countries of the world, or against such countries as accept mutual arrangements with us. For the want of mutuality we have put ourselves in a position in which, under this statute, the Parliament can endorse the foreign policy of a country over which we have no control, and with which we have no treaty. That country, which we proclaim, can embroil us.
Not only is the provision discriminatory, unilateral and invidious; it can also be useless in some circumstances, because if we have no proclamation of another country, and two other countries engage in hostilities with each other, then it would be no crime, except under the Foregn Enlistment Act, for Australians to help either or both of those countries. In the unfortunate case which could have arisen in recent years, involving India and Pakistan in possible hostilities, or in the case which could still arise, in which Cambodia and Thailand might come to hostilities, if we proclaimed none of those countries it would have been, or it would be, no crime for Australians to assist, in a particular case, both of the countries involved, in hostilities.
The whole provision, we suggest, is one which would not achieve any satisfactory objective. We have no objection to mutual arrangements. We have no objection to pervasive neutrality. But we do have an objection to providing a procedure for picking out which country will be immune from our subversion or our activities, and which, by contrast, will be open to them.
I will not have much opportunity, and other honorable members will now have no opportunity, to indicate our attitude to proposed new sub-section (2.), to which we had intended to move an amendment which would have had the effect of deleting all words after the word “ Commonwealth “, second occurring, and of inserting the words, “ a person shall not do any act with intent to assist a country or force that the Governor-General, by proclamation, has declared is opposed to that part of the Defence Force or a force that includes that part of the Defence Force “. In these remarks I am referring, of course, to the proposed new sub-section not in its present form but in the form circulated by the Attorney-General in his amendment No. 4. The objection we will have to that is not to the fact that it shall be an offence to help persons who are opposed to Australian forces. We certainly believe that it should be a crime to attack Australian forces overseas or proceeding overseas - there can be no question of our attitude in that regard - but what we regard as unsatisfactory is that while the indefiniteness as to who our opponents are has been cured to a certain extent, it has been allowed to remain in respect of another aspect of the provision. It will be noticed that the amendment that the Attorney-General, has circulated refers to a proclamation of a class of persons. A class of persons may be classified according to race or religion or-
– Or politics, all of these being vague terms. It might be better to use some such word as “ forces “, because this would at least impart the meaning of some military body. But more satis factory still would be to do what was done in Malaya, a country to which this proposed provision may have some relevance. In Malaya the Government did not declare who were the enemies; it declared the zones where the enemies were. At least it would be more satisfactory to use the word “ forces “ to proclaim the forces opposed to our own defence forces overseas or proceeding overseas, or to proclaim the zones, the areas, in which assistance is not to be given. There can be no dispute as to an area. There may be no great dispute as to a force. But there can be very wide dispute as to a class of persons, or as to persons.
– Would not your suggestion depend on whether people stayed within the zones?
– Yes . You can, as was done in Malaya, control the zones. That is what actually happened. That is how the trouble was cleared up there. Any one who dealt with people in those zones did so at his peril. But if people came out of the zones, even if they were guerrillas, it was no crime in Malaya for people to have dealings with them. Why should it be a crime for an Australian, in similar circumstances, to correspond with or send assistance or information to persons outside the affected zone?
– Order! The honorable member’s time has expired.
– Mr. Temporary Chairman, I did not intervene earlier because I did not want to deprive any honorable member of any time, but I just want to explain now something that seems to have been completely overlooked so far. This device of a proclaimed country has been rendered necessary by changes in the British Empire and changes in the nature and the constitutional form of the members of the British Commonwealth of Nations.
If honorable members look at the existing act, they will see that section 24(1.) makes it treason to instigate any foreigner to make an armed invasion, inter alia, of any part of the King’s Dominions. Now we no longer cover the same area as was covered by the expression “ the King’s Dominions “ in 1914. So, in order to protect the countries of the Commonwealth of Nations, we must have some mechanism, and the Government has chosen the mechanism of the proclaimed country provision. By the use of this device, we are able to do what is done under the existing act and what was intended to be done. Equally, assisting by any means whatever any public enemy is treason. The words “ any public enemy “ have the effect of carrying the offence beyond Australia, as it were, to the enemies of other Commonwealth countries. If that intention is to be carried out, some other mechanism will now be needed. In this instance, the Government has not proposed much change in the existing law, but has provided a mechanism whereby the offence is divided, so that we have treason in relation to Australia itself and treachery in relation to other members of the Commonwealth of Nations where enemies of other Commonwealth countries are assisted. Quite frankly, this provision will extend also beyond the Commonwealth of Nations to other countries.
With very great respect, I do not share the difficulty of the Deputy Leader of the Opposition. I do not feel that when I pick my friends I discriminate. He says, in effect, “ This is discriminatory. We do not mind pervasive neutrality. We do not mind doing nothing. We do not mind if you pick everybody, but you are discriminating when you select one country and say, ‘ This country is our friend. It is helping us. We should like to protect it.’ “ I do not understand that.
– I said that we did not object to mutuality or reciprocity.
– The whole question will be before the Parliament at the time. There will be no hole-and-corner business about it. Is not this Parliament capable of sifting the facts of the situation when it arises? The Parliament will have the machinery ready at hand, and there will be a proper safeguard in that the Parliament will know what are the considerations and will be able to decide in the particular circumstances then current. There may be mutuality; there may not be; I do not know whether there will be. But the Parliament can determine the matter at the time. I see nothing discriminatory in picking my friends.
.- Mr. Temporary Chairman, I should like to say a few words in the few seconds that we have left before, in effect, the gag is applied to the discussion on proposed new section 24aa. We have been able to discuss only a few aspects of this most controversial proposed new section, which relates to treachery. The Attorney-General proposes to give us a sugar-coated pill of an amendment to sub-section (4.) of proposed new section 24aa. The reference in the amendment, which he has circulated, to “proclaimed enemy “ will not alter the original intention of the bill with respect to what is termed a “ proclaimed country “. The Minister wants to throttle any free discussion of foreign policy and any criticism of the Government. If honorable members have any doubts, let me quote the view of Professor Geoffrey Sawer, Professor of Law at the Australian National University. He stated -
The new Section 24aa . . . seeks to brand as “ traitors “ any citizens who disagree with the foreign policy of the Government in regarding as the “ baddies “, in a war between two other countries in which this country is not engaged, the side which the Government has chosen to regard as “goodies”, or vice versa.
The Attorney-General, when addressing a convention of Apex Clubs at Parramatta, as reported in the “ Sydney Morning Herald “, of 15th November, said -
We as the people do not have to ask the Government can we think, can we talk, can we gather together and discuss things.
If a group of young people want to get together to find the facts that is democracy.
And a Government which doesn’t take into consideration all the points of view of minority groups as well as the majority isn’t governing democratically.
Is not that utter hypocrisy? The Minister said that at Parramatta as recently as 15th November, but he attempts to gag and throttle any discussion of foreign policy by means of this proposed new section of the principal act. The attempt to gag this bill through indicates the Government’s attitude. The honorable member for Stirling (Mr. Cash) revealed the true principle of this proposed new section, and what it really means will not be altered. The Attorney-General made his position quite clear in his second-reading speech.
– Order! The time allotted for the consideration of clause 23, proposed new section 24aa, has expired. The question is, “ That the amendment be agreed to “. Those of that opinion say “ Aye “; of the contrary, “ No “. I think the “ Ayes “ have it.
Opposition Members. - The “ Noes “ have it.
– Is a division required?
– Will you read the question, Mr. Temporary Chairman? Under the Standing Orders, we are entitled to know what the question is. Will you read it?
– The amendment has been circulated; so there is no necessity for reading it.
– The Standing Orders provide that an honorable member is entitled to have read the question which is being put, and I am asking for it to be read.
– It is the practice that if the question has been circulated, that is quite sufficient.
– I am not talking about the practice. The Standing Orders provide that the question which is being put must be stated.
The TEMPORARY CHAIRMAN.The question is, “That the amendment be agreed to “. A division has been called for. Ring the bells!
Question put -
That the amendment (Mr. Whitlam’s) be agreed to.
The committee divided. (The Temporary Chairman - Hon. W. C. Haworth.)
Majority . . . . 27
Question so resolved in the negative.
Circulated amendments of the Government -
In proposed section 24aa -
Sub-section (1.), omit sub-paragraph (ii) of paragraph (b), insert the following sub-paragraph: - “ (ii) assist by any means whatever, with intent to assist, a proclaimed enemy of a proclaimed country; or”. “ ‘ (2.) Where a part of the Defence Force is on, or is proceeding to, service outside the Commonwealth and the Territories not forming part of the Commonwealth, a person shall not assist by any means whatever, with intent to assist, any persons -
Omit sub-sections (4.) and (5.), insert the following sub-sections: - “‘(4.) In this section- “ proclaimed country “ means a country specified by proclamation made for the purpose of this definition to be a proclaimed country, and includes any colony, overseas territory or protectorate of that country, or any territory for the international relations of which that country is responsible, which is a colony, overseas territory, protectorate or territory to which the proclamation is expressed to extend; “ proclaimed enemy “ in relation to a proclaimed country, means an enemy -
Question put -
That proposed section 24aa, as amended, and the circulated amendments of the Government to that section, be agreed to.
The committee divided. (The Temporary Chairman - Hon. W. C. Haworth.)
Majority . . 25
Question so resolved in the affirmative.
.- I move -
In proposed section 24ab, sub-section (1.), omit “, damage or impairment “, insert “ or damage “.
The purpose of the proposal is to limit the act of sabotage to the destruction or damage of one of those articles. No instances have been given of what would be covered by “ impairment “ which is not already covered by “ destruction or damage “. The Opposition believes that it should be a crime to damage or destroy any defence equipment. The term “ impair “ may have negative connotations which do not require intention. The terms which we seek to delete are too vague for us to support, and therefore I move that they be omitted.
Question put -
That the words proposed to be omitted (Mr. Whitlam’s amendment) stand part of the proposed section.
The committee divided. (The Temporary Chairman - Hon. W. C. Haworth.)
Majority . . . . 25
Question so resolved in the affirmative.
– I move -
In proposed section 24ab, sub-section (1.), omit “ prejudicial, or intended to be prejudicial,”, insert “ intended to be prejudicial “.
We seek to remove from the total expression “ for a purpose prejudicial or intended to be prejudicial” the word “prejudicial” where first appearing. The existing formula in the act now in force is, “for a purpose prejudicial “. The original amendments sought to add the words, “ or intended to be prejudicial “. I accepted a suggestion from the Opposition that the word “ prejudicial “ where first appearing might well be deleted. I do not think any significant change has taken place in the total form of the expression.
.- As the Attorney-General says, this amendment was sought by the Opposition and is supported by it.
Amendment agreed to.
.-I move -
In proposed section 24ab, sub-section (1.), omit paragraph (a), insert the following paragraph: - “ (a) that is used, or intended to be used, by the Defence Force or a part of the Defence Force or is used, or intended to be used by the armed forces of a country that are in the Commonwealth or a Territory not forming part of the Commonwealth with the consent of the Governor-General;”.
It will be noted that the provision which it is sought to replace provides that it shall be sabotage to destroy, damage or impair an article that is used, or intended to be used by Australian forces, or by forces of a proclaimed country. Our objections to the procedure for proclaiming countries have already been expressed in committee - and dismissed. But there is a remaining objection which I should think would commend itself to the Government. The proclamation procedure takes some time, and it seems to us to be reasonable that it should be regarded as sabotage to destroy, damage or impair articles used by forces other than Australian forces which are- in Australian territory with the consent of the Australian Government.
Our proposed amendment would achieve that. We believe that it is not necessary to extend the; provisions of earlier sections to all countries which may have forces in Australia, but, at the same time, it should be possible to extend protection to the forces from other countries which are in Australia even though countries to which they belong are not proclaimed, so long as they are there with our consent.
Question put -
That the paragraph proposed to be omitted (Mr. Whitlam’s amendment) stand part of the proposed section.
The committee divided. (The Temporary Chairman - Hon. W. C. Haworth.)
Majority . . . . 23
Question so resolved in the affirmative.
.- by leave - I move -
In proposed section 24ab, sub-section (1.), at the end of paragraph (d) add “ and that is of use in time of war “.
Sub-section (1.) of proposed new section 24ab defines acts of sabotage. Such an act occurs if destruction, damage or impairment occurs with respect to an article which falls within any one of four categories. The last of the four categories relates to any article -
The necessity for this amendment appears when we look at the definition of “prohibited places “ in section 80 of the act. Such prohibited places fall within five categories and I will summarize them in this fashion: (a) Any defence work or government office; (aa) Any camp, barracks or other place where prisoners of war or members of the defence forces are detained; I will leave (b) for the moment; (c) Any place belonging to the government which is declared by the Governor-General; and (d) Any communications or utilities which are declared by the Governor-General. Paragraph (b)is in the following terms: -
Any place not belonging to the Queen or the Commonwealth where any ship, arms, or materials or instruments of use in time of war, or any plans or documents relating thereto, are being made, repaired, or stored, under contract with, or with any person on behalf of, the Queen or the Commonwealth.
It appears, therefore, that an act of sabotage occurs if destruction, damage or impairment occurs with respect to any article that is in or forms part of a private place where there is a government contract for the making, repairing, testing or storing of goods of use in time of war. It is not necessary, in order to constitute an act of sabotage, that the destruction, damage or impairment should occur with respect to an article that is of use in time of war. It is sufficient if any of those things occurs to an article which is in a private place where the contractor has a contract concerning articles of use in time of war. The effect of our amendment, if agreed to, would be that sabotage would occur only where defence equipment was involved and was destroyed, damaged or impaired. There are many establishments where government contracts in respect of articles or materials or instruments of use in time of war are being made, repaired, obtained, tested or stored. An example given early in the debate on this bill was the establishment of a jeweller who had a contract to repair Air Force watches, which obviously are of use in time of war. A person would commit the crime of sabotage if two things happened, first, if he is a person concerning whom evidence can be given of his known character, which means his political reputation, and secondly, if evidence is given that he has damaged anything which is in or forms part of that jeweller’s shop. It certainly would be an absurdity that a man could be tried or convicted cf sabotage when he has damaged something in a jeweller’s shop where the jeweller had, among other things, Air Force watches for repair, although the articles which were damaged had no defence significance. The definition is wide enough to cover a case such as that. This has been stated several times in the House and on various mass mediums of communication, and it has never been denied. We want the definition tightened up sufficiently to ensure that sabotage shall occur only if damage, destruction or impairment is caused to defence equipment.
Various other examples can be conjured up, for instance, clothing factories where Army uniforms or Army boots are being made, or canning factories where bully beef is being tinned. In those cases, sabotage can occur if any damage is done to any article that is in or forms part of such a factory. I repeat that the definition is far too wide.
We have no objection to it being made a crime to damage defence equipment, but we do not believe that it should be possible to make it a crime, with such connotations as sabotage has in the public mind, to do acts which have no defence significance.
.- I think that the honorable member for Werriwa (Mr. Whitlam) overlooks one of the fundamental elements of this offence. The offence is committed only if a person does something for a purpose intended to be prejudicial to the safety or defence of the Commonwealth. The honorable member has claimed that this can be proved by giving evidence of character. That is an erroneous assertion because the jury must be satisfied beyond reasonable doubt of the existence of the purpose. Whether it will be satisfied by a little piece of evidence or by a lot of evidence is a matter entirely for the jury. The case is not made out merely by giving evidence of character. It still has to be carried to the point where the jury is satisfied beyond reasonable doubt that the accused person had in mind the purpose to which I have referred.
With that very strong safeguard, the Government believes that there must be some width in the description of the articles that a person cannot destroy with that intention without committing an offence. We are not willing to accept a narrowing of what is not a very wide category of articles in the bill as offered.
Question put -
That the words proposed to be added (Mr. Whitlam’s amendment) be so added.
The committee divided. (The Temporary Chairman - Hon. W. C. Haworth.)
Majority . . . . 21
Question so resolved in the negative.
Sitting suspended from 6.4 to 8 p.m.
.- by leave - I move -
In proposed section 24ab, omit sub-section (3.)
The effect of the amendment is to remove the “ known character “ provision from the first of the three places where it occurs. These are the worst of the Barwick blots on the Australian statute-book. They have been universally condemned and not just by superficial commentators as the Prime Minister (Mr. Menzies) describes them, not just by Communist dupes or by persons who have not read their books, as the AttorneyGeneral describes them. They have been condemned by persons such as Sir John Latham, a former Attorney-General of the Commonwealth and a former Chief Justice of Australia; by Professor Stone of the University of Sydney and Professor Sawer or the Australian National University; by Mr. Gregory Gowans, Q.C., who wrote a series of articles on the legislation, particularly on this proposed section, for the Melbourne “ Age “; by another anonymous author who wrote similar articles for the Melbourne “ Herald “ and the “ Sydney Morning Herald “; by Mr. John Kerr, Q.C., and by other counsel. They have also been condemned, Sir, by several present Supreme Court Justices, as the AttorneyGeneral knows, but whose identities, as he alsoknows, I am not at liberty to divulge.
The references occur in respect of the three offences of sabotage, espionage and breach of official secrets. Those three offences are committed if a person does certain things for a purpose intended to be prejudicial to the safety or defence of the Commonwealth. So far, Sir, nobody can cavil at such acts being made crimes and being made subject to severe penalties on proper and regular conviction. But under this legislation, to show such a prejudicial purpose it is enough to give evidence of a person’s known character - that is, his bad reputation. To take the only instance that the Prime Minister has given on the only occasion on which he has commented publicly on this bill, and to take all the instances which the Attorney-General has given in this chamber, on television and in lengthy articles written for the newspapers, reputation in those circumstances means political reputation.
The menace which is particularly felt by the Labour movement, political and industrial, is that a political reputation which is anathema to the Attorney-General or to the Prime Minister is easily acquired or given in trade union affairs, and persons who are known as pacifists, or militants, or aggressives or progressives might very readily be given a reputation or, for trade union purposes, might seek a reputation, which could go against them on their trial for any of these serious offences - that is, the anti-patriotic offences of sabotage, espionage and breach of official secrets. The evidence may be given, not by a person who knows them, but by a person who gives the evidence of character in any court, and gives it in the only circumstances in which it can now be given - except when the accused person himself provokes it - that is after conviction and before sentence.
It will be able to be given by a policeman or a security officer or anybody else who will go into the box and say, “ This is the reputation that the accused bears “. It is true that the witness is subject to crossexamination, and that contrary evidence can be given; but the menace of it lies in this fact - that it can be given, and obviously will be given, where there is no other adequate evidence to show that sabotage, espionage or breach of official secrets has occurred, where there is no other adequate evidence to show any purpose prejudicial to the defence of our country.
It will be urged that these provisions are somehow sanctified by usage. It is true that there were similar provisions in 1871 in an English statute dealing with rogues and vagabonds, with recidivists. If they were found guilty, the maximum sentence would be three months’ gaol. That section was put into the English Official Secrets Act of 1911, and it was adopted by the Fisher Labour Government and unanimously passed by this Parliament in one section of the original Crimes Act a couple of months after the outbreak of the First World War. The section has never been used in Australia, and in England there is no recorded instance of its use. Yet the Attorney-General is now making this provision apply not only in the one case where it applies in the present act, but he is putting it into effect in relation to the more serious offence that replaces that offence - the offence of espionage, as distinguished from the old offence of unlawfully spying. He is, moreover, introducing this for the first time in the new offence - new in Australia - of sabotage and the newly defined offence of serious breach of official secrets.
Such evidence cannot be given in cases launched under any other legislation in Australia except under the original unlawful spying section of this act, where it has never been given. In criminal matters such evidence is excluded unless the accused person seeks to prove in court that he has a better character than he really has, or unless he attacks the character of the prosecutor or of a witness for the prosecution. Character will be used now against the accused where there is no evidence from conduct or circumstances pointing in any direction on the issue of prejudicial purpose.
This proof of bad character - of political reputation - by direct evidence is an easy and effective weapon to wield against an accused person. Proceedings under these new provisions are likely to be taken in conditions of national tension and emotion, when every precaution is neces sary to ensure, not ease of conviction, but fairness of trial. Evidence of bad character, when admissible, is usually given by an official such as a police officer who, ir evidence-in-chief, speaks of the accused’s general reputation. It is a form of hear-, say - easy to assert and difficult to rebut. Evidence of bad character - political reputation - as proposed now in three provisions, in this bill is almost certain to cause a. -miscarriage of justice in a case in which ia person of allegedly bad character-a person with unorthodox political viewshappens to be, on the occasion in question, actually innocent of the criminal purpose alleged.
It is true that the Attorney-General has circularized three amendments. Two of them make no difference. The remaining one is no safeguard. It makes no difference that the judge can admit evidence only if it is relevant. That would have been the case anyhow. It makes no difference that the judge has to direct the jury that the evidence is relevant only on the question of purpose. He would have had to do so anyhow. It is no safeguard that the judge cannot admit the evidence if he thinks it is out of proportion in its prejudice to the accused, because the important thing in criminal trials is not the views of the judge but the views of one’s fellow men and women on a jury.
I conclude with some reported remarks made by Mr. John Kerr. Q.C.. who is not averse to the general purpose of this bill, but, like everybody else who has expressed a view on this matter - the judiciary, counsel and professors of our universities - has said that -
It would be very prejudicial to allow the prosecution to prove that a man was a Communist or a fellow traveller, or that he had supported Communist policies, because this might prejudice the jury on the central question of whether he had committed the act charged. There should be as departure from the traditional British procedural where a man has to be proved guilty of the ac*. The proposed amendment could open the way dp guilt by association.
– I enter this debate to say something about this objectionable feature of the bill which entitles the Crown to obtain a conviction by introducing as evidence a person’s known character as proved. I think the crucial question regarding this newly created offence of sabotage is that of purpose because proposed new section 24ab begins -
In this section - “ act of sabotage “ means the destruction, damage or impairment, for a purpose prejudicial, or intended to be prejudicial, to the safety or defence of the Commonwealth, . . .
It does not necessarily have to be in wartime. I wish to quote some extracts from a legal opinion that has been prepared by no less an authority than Mr. S. H. Cohen, one of the leading barristers in Melbourne, on the question of known character. No one who knows Mr. Cohen will suggest that he is a man of second-rate mind or secondrate legal knowledge. He is a man of repute, and is recognized everywhere as a man of great legal knowledge and eminence as a barrister. Mr. Cohen has stated in this connexion -
A certain act may be accidental or it may equally be capable of being considered deliberate. The section sets out to make it easy for the prosecution to prove the offence of sabotage by facilitating proof of “ purpose prejudicial “. It introduces, by sub-section (3.) - as well as in the new sections 7 (2) (a) and 79 (7), an evidentiary provision which is repugnant to all accepted forms of criminal justice, and which is dangerous to civil liberty and entirely unjustified even in time of the gravest national emergency.
– Tell us about Mr. Cohen’s membership of the Australian Labour Party.
– He will be a senator from Victoria in the next Parliament and he will be a Labour senator. Mr. Cohen has pointed out also -
A similar provision exists in other criminal legislation, e.g. section 72(9) of the Victorian Police Offences Act, 1928, which deals with “rogues and vagabonds “ and “ known thieves “ or cheats. In the Victorian section, however, the requirements of the section are cumulative, not alternative. Thus, “ he may be convicted if from the circumstances of the case and from his known character as proved to the Court it appears that his intention was to commit a felony or misdemeanour “.
But compare the provisions of the Victorian act with the bill we are now considering. Proposed sub-section (3.) of proposed new section 24ab states -
On a prosecution under this section, it is nol necessary to show that the accused person was guilty of a particular act tending to show a purpose prejudicial, or intended to be prejudicial, to the safety or defence of the Commonwealth and, notwithstanding that such an act is not proved against him, he may be convicted if, from the circumstances of the case, from’ his conduct or from his known character as proved, it appears that his purpose was a purpose prejudicial, or a purpose intended to be prejudicial, as the case requires, to the safety or defence of the Commonwealth.
It is true that the Government proposes to strike out the words “ prejudicial “ and will make it necessary to prove that the purpose of the act was intended to be prejudicial; and although that is important and follows the very amendment we as an Opposition have also moved, it still leaves the fundamental Objection of the Opposition untouched. I think it is important to remember that the only types of offences in respect of which it has been thought permissible in the past to depart from the accepted rule of excluding evidence of character, except when raised by the accused himself, are those offences in which the offence itself requires proof of character of the accused. That is why under section 72 (9) of the Victorian Police Offences Act it is an offence for a known thief or a known cheat to loiter in certain places at night without lawful excuse. The court in that case is entitled to draw an inference that a known thief loitering in an unauthorized place at night has a felonious intention. This is what Mr. Cohen has to say on this point -
Tt is clear enough what meaning is to be attributed to the words “ known character “ in that sub-section. But what meaning is to be given to the expression “ known character “ in these new provisions in this bill? Since the offences created are of the “ politico-security type, and since the “ security “ danger to Australia comes from Communist countries abroad and “Communists” at home, the only intelligible meaning to give to the expression in the context of this Bill is that it means “ political associations and proclivities “. So that, where a worker in a factory does some act which impairs the working of a machine, and the circumstances are equally consistent with the act being accidental or deliberate evidence may be given to show that he is or had been a Communist, or had expressed pro-communist views at some time past or present, or had attended a “ Peace Conference “ at which some Australian or “ Western “ policies had been attacked, or had protested against “ apartheid” or had otherwise been associated with some humanitarian or antiGovernment or “leftist” cause. It is quite plain that the Bill contemplates that these matters of “ known character “ will weigh against the accused. The section expressly permits the introduction of evidence which would otherwise be strictly excluded, the purpose of evidence being to facilitate proof of guilt where no overt act showing a criminal purpose is proved against the accused.
Do not forget that it is provided that, even notwithstanding the fact that no act is proved against a person, he can still be convicted if it is felt on his known character that he might have had an intention of doing something prejudicial. Mr. Cohen has stated -
It is important to remember that these crimes of “ treason “, “ treachery “, “ sabotage “ and “ espionage “ are crimes with respect to which public feeling often runs high, not only in wartime but also in the atmosphere, highly charged at times, of the cold war.
The Deputy Leader of the Opposition made an excellent point when he said the accused would not be tried by the judge presiding at the trial, but by the jurymen sitting on the trial whose own views might well be coloured by what they have read in the newspapers concerning the offence - things that have been read in an atmosphere generated as a result of some hysteria such as we witnessed in connexion with the Communist Party Dissolution Bill in 1951. Then we had the spectacle of the Prime Minister (Mr. Menzies) coming into this Parliament and giving his memorable oration on communism when introducing the Communist Party Dissolution Bill. The right honorable gentleman, who has just entered the chamber, will remember that he had the whole of the gallery lined up with pressmen with flashlights. Every few seconds a bulb was exploded by somebody taking a photograph of the Prime Minister. The Prime Minister electrified the atmosphere. It did not seem to be a parliament. It was more like a scene from “ Alice in Wonderland “ or a meeting at the Olympic Pool in Melbourne. This atmosphere was brought about by the eloquence and stage-play of the Prime Minister.
Order! The honorable member’s time has expired.
.- Of all the obnoxious provisions in this bill I should imagine that this would be the most obnoxious. It is aimed, no doubt, at the trade union movement. It will permit the use by a government of intimidatory tactics against individual trade unionists. I would imagine that this bill is drawn so loosely that there is no individual active in trade union or political affairs in this country who would not come within its scope if the Attorney-General, the Prime Minister or the Government generally wanted to pick him up.
Let us look at what this amendment proposes to do. What my two colleagues have said is perfectly true. The prosecution does not have to prove anything at all. It merely has to establish “ known character as proved “. How is that done? The average person believes that it would be necessary to produce some record of police court convictions. Nothing of the kind! The Attorney-General says, “ Oh, but they have to produce witnesses to give evidence in regard to known character “. When I approached him as a member of a deputation he said, “ Security service reports could not be used in this type of investigation because we would not produce our security officers. We would not want to expose the source of our information.” But Government officers can, by various means, secure information relating to the activities of any member of the community. They can use security reports obtained by all sorts of methods. The security service has its pimps everywhere. It has them in the universities and it has them in the trade unions. It even has them in the professional world, because we have had an illustration of doctors being employed by the security service in order to get information from their patients.
It is perfectly true that the prosecution would not produce the member of the security service who had secured the information but it could produce dummy witnesses. Information obtained by security agents by tapping people’s telephones and recording their conversations will be produced in order to prove the known character of a person accused of an offence.
As the Deputy Leader of the Opposition has said, no doubt such charges would be preferred against people in a time of national, hysteria. We have only to go back through the records to see what can happen when the people are aroused by a Government which has been playing upon their emotions. Men have been charged with offences because they answered certain questions at public meetings. One man was charged with seditious intent when he answered a question which he had been asked by a newspaper reporter. On that occasion it must have been obvious to any reasonable member of the community that the man could not have been guilty of any seditious intent. He was found guilty because the incident occurred in a period when hysteria existed about certain people and their activities. Under those conditions, the person concerned could not have been expected to be given a reasonable trial.
The Attorney-General has said, in effect, “But the magistrate, in the case of committal proceedings, and the judge, in a case which goes to a higher tribunal, not only has to decide whether the evidence is relevant and is to be admitted, but the judge has to direct the jury that the evidence must relate to the purpose for which the act was committed”. But already the damage has been done. I guarantee that all that would have to be proved in most instances would be that at some stage or other the person, concerned had been a member of the Communist Party or had been a militant trade unionist.
Everybody knows that the Government sends shorthand reporters to trade union meetings. Tt sent reporters to a meeting of Commonwealth public servants, and nobody would argue that they are a militant body of trade unionists. The Government sent its shorthand writers there so that it could record in the dossiers of certain people what they had been saying. It is a well-known fact that, whenever possible, security officers attend meetings of trade unionists - if they can get in - and record what is said. Every honorable member knows that when trade unionists came into the Queen’s Hall in connexion with this legislation there were literally dozens of security officers mingling with them, listening to their conversation and to the case they were putting to their parliamentary representatives. These are the methods employed by the security service.
In any community a person who is deemed to be guilty of action against the security of the country ought to be penalized. While we do not agree that all the offences named by the Government should be deemed to be in that category, there is not. a member of the- Opposition who does not believe that if any citizen commits, and is proved guilty of, an offence against the security of Australia, the severest penalty should be imposed on him. But there is a vast difference between proving a person guilty of an act and proving him guilty in accordance with his known conduct only. A militant unionist who spoke out at trade union meetings could be considered guilty because of his known conduct as a militant trade unionist.
Of course, this provision is aimed against the trade union movement! 1 do not suggest that, as soon as this legislation is passed, the Government will pick up unionists by the thousand and charge them with having committed acts of sabotage. But the Government intends to use this undemocratic legislation as a sort of deterrent to trade unionists because it wants to establish what the late Mr. Ben Chifley, the esteemed former leader of the Labour Party, declared to be “ tame cat “ unions - unions which will do the bidding of employers and of the Government.
I have said repeatedly in this debate when I have had the opportunity to do so, that, in my opinion, a law does not become effective merely because a government has the necessary numbers in Parliament to pass it. This Government has no mandate to pass this type of legislation. It is not prepared to submit it to the people by referendum in order to see whether the people approve of it. The Government is using its numbers to put the measure on the statute-book, but if the majority of the Australian people regard this as a completely unjust law, I believe that it will not be possible to make it effective.
In my opinion, the trade unionists have been extremely patient with the Government, not only in respect of the proposed amendments of the Crimes Act but also in respect of the vicious penalties which have been imposed on them by judges who have been appointed by the Government from its own ranks. One day a man is a Liberal senator or a Liberal member of this Parliament and the next day he is sitting on a court, passing savage penalties on the trade unionists of this country. This sort of thing cannot go on much longer.
Government supporters talk about democracy and the rights of the citizen. How can it be just to declare a person guilty of any offence solely on his known character? Let Us consider the position of any man employed on the waterfront who has been a militant trade unionist or who has had a police court conviction for any offence whatever, no matter how long ago. If his record is brought against him he is almost certain to be convicted by the court. A waterside worker could be loading defence equipment. He may not be aware of the nature of the cargo that he is engaged in loading. If one of the cases happens to fall and break that man could immediately be charged with an act of sabotage. It could be proved without difficulty that the case containing defence equipment had been broken, and that therefore he was guilty of an act of sabotage. At that stage all that would have to be proved to the court would be that he had a purpose, based on his known character, as proved, and that he had therefore a deliberate design to injure the security of this country.
– Order! The honorable member’s time has expired.
.- Mr. Chairman-
– He has been dragged into it at last.
– Not dragged in, but drawn in, because I had the very great advantage outside the chamber of hearing the honorable member for Hindmarsh (Mr. Clyde Cameron), and then, partly inside and partly outside the chamber, the honorable member for East Sydney (Mr. Ward). This is a provision of the bill that has attracted, I venture to say, more uninformed attack than any other provision of it. Therefore I think it proper that I should say a few words about it. T am not intervening to relieve the AttorneyGeneral.
– Not much.
– The Attorney-General will never need to be relieved against attacks by the honorable member for Kingsford-Smith.
– Just as he did at the United Nations - and you did, too.
– I gather that the highly informed member for KingsfordSmith objects to my speaking. Is that so?
– I do not even enjoy it.
– I just want to make it clear to other people, if not to him, that I am going to speak on this matter because I said something about it in a public speech, and what I said about it has been taken up since in another quarter, which, I regret to observe, was the Presbyterian General Assembly of Victoria.
– They are not so simple.
– Indeed, on this oces* sion they were dangerously simple. They were misled. Not having read the bill, and not having read the speech of my colleague, they were misled into accepting some of the fantasies .that have been put to the committee within the last half-hour.
– Everybody is not as simple-
– If you would like to hear what I have to say, that will be O.K. I just want to say this: In the bill as it stands there is a definition of an act of sabotage. An act of sabotage, let me remind the committee, means the destruction, damage or impairment, for a purpose prejudicial or intended to be prejudicial to the safety or defence of the Commonwealth, of an article as denned; that is to say, the destruction of something for a purpose that has to be established.
– Or impairment.
– I shall just confine myself to destruction for the purpose of simplicity. Sub-section (2.) of proposed new section 24ab says that a person who carries out an act of sabotage shall be guilty of an indictable offence. I have not heard anybody suggest that that is not right. I have not heard anybody on the Opposition side say that sabotage should not, if established, be considered a serious offence. Therefore one may assume that even members of the Opposition believe that this new statutory offence of sabotage should, if established, carry with it severe penalties.
– Not your offence.
– If you do not mind, 1 just want to put my own case. I have heard you speak many times, but I still do not understand what your case is.
– Don’t you like interjections?
– The honorable member for Yarra would like to have all sabotage merchants let free.
– What rubbish!
– And we all know that to be so.
– Mr. Chairman, I claim to have been grossly misrepresented by the Prime Minister.
– Order! The honorable member for Yarra may rise at the end of the Prime Minister’s speech and make a personal explanation.
– It was more than a misrepresentation. It was an offensive remark, and I ask for it to be withdrawn without any further messing around.
– If it is an offensive remark it should be withdrawn immediately.
– Order! It is not an unparliamentary expression.
– I ask you, Mr. Chairman, whether it is permissible for a member of the Opposition, when the Prime Minister makes a reference to one of our colleagues which we regard as completely offensive, to ask for it to be withdrawn, as has been the practice in this Parliament for a very long time.
– Order! The honorable member for East Sydney cannot have it withdrawn. The honorable member for Yarra (Mr. Cairns) is the only one who can make that request.
– I have asked quite clearly for it to be withdrawn. It is offensive, lt implies that I am on the side of saboteurs. It is completely offensive, and I ask for it to be withdrawn.
– Order! It is not unparliamentary. The honorable member is merely canvassing my ruling.
– Then what is the procedure, Mr. Chairman?
– Order! I call the Prime Minister.
– Let the greatest saboteur in the country have his say, and we will have ours.
– Order! I name the honorable member for East Sydney.
– But he used the same expression as that used by the Prime Minister.
– If the honorable member for East Sydney apologizes he may remain in the chamber.
– I do so, Mr. Chairman, and I ask you to call on the Prime Minister to withdraw his remark.
– On a point of order, Mr. Chairman: You have given a ruling in relation to the honorable member for East Sydney, who made a remark that you asked him to withdraw. He used the same expression as that used by the Prime Minister in referring to me, but you have not asked the Prime Minister to withdraw.
– Order! It was not the same remark.
– I raise a point of order, Mr. Chairman. Standing Order No. 78 says -
All imputations of improper motives and all personal reflections on Members shall be considered highly disorderly.
– The Chair will judge, as we go along, whether particular remarks come within those categories.
– Proposed new subsection (3.) says -
On a prosecution under this section it is not necessary to show that the accused person was guilty of a particular act tending to show a purpose prejudicial.
What is overlooked by the critics of the provision is that there are two things that have to be established; first, the performance of an act, which is the act of sabotage, putting all questions of intention on one side. The first thing that has to be shown is the act. Then there must be proof of the intention. This proposed subsection deals with the question whether you must prove an act which proves an intention, in addition to proving the final act.
I would have thought that this was as clear as it could be. But, so that there will be no confusion, the Attorney-General has circulated an amendment which gives to the judge at the trial the responsibility of telling the jury either that the connexion is so remote that the evidence cannot be accepted, or that the evidence is such that the jury should not attach undue weight to it. The whole point of this matter, if I may show it by a homely illustration, is this: Suppose there is a workshop in which highly secret work related to the defence of the country is being done. Suppose that it is engaged in the production of some very refined piece of machinery, some very accurate instrument which may turn out to be of tremendous importance to the safety and defence of the country. Suppose that when this fine piece of mechanism is almost completed a man working in the place goes up top and drops a heavy spanner into it, literally destroying it.
– What do you mean by dropping a spanner? You know nothing about working in a factory.
– I just give this illustration because I am speaking about this matter as a person who has an interest in the safety of Australia. Suppose that happened, and suppose that act was proved.
– Order! The Prime Minister’s time has expired.
Motion (by Sir Garfield Barwick) proposed -
That the Prime Minister (Mr. Menzies) be granted an extension of time.
– We have only up to 8.50 p.m. on proposed new section 24ab. Give us an equal chance! Why take all the time the Prime Minister wants? The Prime Minister would not take the time in blackguarding other honorable members and not allow a reply. The Prime Minister would not want to take it. I am sure that he would not blackguard other honorable members and refuse them an opportunity to reply. The Prime Minister would not take the time. Are you afraid of a reply?
– Order! The honorable member will resume his seat.
– Are you afraid of a reply?
– Order! The honorable member will be named unless he sits down.
– I ask the Prime Minister: Will he exercise his time and deprive other honorable members of their opportunities?
– Certainly! The Opposition has had the last two speeches. All I want is one.
– Are you afraid–
– Order! I name the honorable member for Eden-Monaro.
– Could anything be more disgraceful than the Prime Minister of Australia refusing the Opposition the right to reply!
– Order! I have named the honorable member for EdenMonaro.
– I apologize and withdraw. I apologize to the Chair.
– Order! The question is, “That the Prime Minister (Mr. Menzies) be granted an extension of time “.
– Surely he will not take it.
– I have put to the committee the question, “That the Prime Minister (Mr. Menzies) be granted an extension of time “. Those of that opinion say “Aye”; to the contrary “No”; I think the “Ayes” have it.
Opposition Members. - The “ Noes “ have it.
– Is a division required?
– Will the Prime Minister of Australia take up the time of the committee without giving an opportunity to reply to his blackguardly statements against Opposition members?
– There are many precedents for it - with respect to other Prime Ministers, too.
Question put -
That the Prime Minister (Mr. Menzies) be: granted an extension of time.
The committee divided. (The Chairman- Mr. G. J. Bowden.)
Majority . . . . 23
Question so resolved in the affirmative.
That the Prime Minister (Mr. Menzies) be not further heard.
Question put. The committee divided. (The Chairman - Mr. G. J. Bowden.)
Majority . . . . 25
Question so resolved in the. negative.
Opposition. Members. - The “ Ayes “ have it.
Question put -
That the amendment (Mr. Whitlam’s) be agreed to.
The committee divided. (The Chairman - Mr. G. J. Bowden.)
Majority . . . . 25
Question so resolved in the negative.
Question put -
That proposed section 24ab, as amended, and the circulated’ amendments of the Governmentto that section, be agreed to.
Circulated amendments of the Government -
In proposed section 24ab: -
Sub-section (3.) Omit “ prejudicial,or intended to be prejudicial,”, insert “ intended to be prejudicial “.
Sub-section (3.) Omit “prejudicial, or a purpose intended to be prejudicial, as the case requires,”, insert “ intended to be prejudicial “.
After sub-section (3.) insert the following subsections: - “ ‘ (4.) On a prosecution under this section, evidence is not admissible by virtue of the last preceding sub-section if the Magistrate, exercisingjurisdiction with respect to the examination and commitment for trial of the defendant, or the Judge presiding at the trial, as the case may be is of the opinion that that evidence -
The committee divided. (The Chairman - Mr. G. J. Bowden.)
Majority . . . . 25
Question so resolved in the affirmative.
Circulated amendment of the Government -
At the end of the clause, add the following section: - “ ‘ 24ac. - (1.) Proceedings for the commitment for trial of a person, or for the summary conviction of a person, in respect of an offence against any of the last three preceding sections shall not be instituted except by the Attorney-General or with the consent of the Attorney-General or of a person thereto authorized in writing by the Attorney-General. “ ‘ (2.) Notwithstanding that consent has not been obtained as provided by the last preceding subsection -
a person may be arrested for an offence referred to in that sub-section; or
a warrant for the arrest of a person for such an offence may be issued and executed, and he may be charged, and may be remanded in custody or on bail, but -
no further proceedings shall be taken until that consent has been obtained; and
he shall be discharged if proceedings are not continued within a reasonable time.’.”.
Opposition Members. - The “ Noes “ have it.
Question put. The committee divided. (The Chairman - Mr. G. J. Bowden.)
Majority . . . . 23
Question so resolved in the affirmative.
Clause, as amended, agreed to.
Proposed new clause.
Circulated amendment of the Government -
That the following new clause be inserted in the bill:- “23a. Section twenty-four a of the Principal Act is amended -
by omitting the words ‘ (1.) Subject to sub-section (2.) of this section an’ and inserting in their stead the word ‘ An ‘; and
by omitting sub-section (2.).”.
Question resolved in the affirmative.
Proposed new clause.
– I move -
That the following new clause be inserted in the bill:- “ 23b. After section twenty-four e of the Principal Act the following section is inserted - 24f. - (1.) Nothing in the preceding provisions of this Part makes it unlawful for a person -
to endeavour in good faith to show that the Sovereign, the Governor-General, the Governor of a State, the Administrator of a Territory, or the advisers of any of them, or the persons responsible for the government of another country, has or have been, or is or are, mistaken in any of his or their counsels, policies or actions;
to point out in good faith errors or defects in the government, the constitution, the legislation or the administration or justice of or in the Commonwealth, a State, a Territory or another country, with a view to the reformation of those errors or defects;
to excite in good faith another person to attempt to procure by lawful means the alteration of any matter established by law in the Commonwealth, a State, a Territory or another country;
to point out in good faith, in order to bring about their removal, any matters that are producing, or have a tendency to produce, feelings of ill-will or hostility between different classes of persons; or
to do anything in good faith in connexion with an industrial dispute or an industrial matter. (2.) For the purpose of the last preceding subsection, an act or thing done -
for a purpose intended to be prejudicial to the safety or defence of the Commonwealth;
with intent to assist an enemy -
at war with the Commonwealth; and
specified by proclamation made for the purpose of paragraph (d) of sub-section (1.) of section twenty-four of this Act to be an enemy at war with the Commonwealth;
with intent to assist a proclaimed enemy, as defined by sub-section (4.) of section twenty-four aa of this Act, of a proclaimed country as so defined; or
with intent to assist persons specified in paragraphs (a) and (b) of sub-section (2.) of that section, is not an act or thing done in good faith.’.”.
The purpose of this amendment is to make it quite plain that the section which is already in the act, and which I think was of general application, is construed hereafter for certain to be of general application. Its language has been brought up to date in order to cover new circumstances, and an additional paragraph (e) has -been inserted to ensure that nothing in the preceding provisions of .the Part makes it unlawful to do anything in good faith in connexion with an industrial dispute or an industrial matter. But in order that it cannot be said that one could be, as it were, traitorous or treacherous in good faith, sub-section (2.) of the proposed new section makes it quite clear that, if the .various intentions are held, which are described in the paragraphs of the subsection, an act done with those purposes or intentions is not an act done in good faith.
.- The Attorney-General adheres to the view, which .he has expressed on several occasions in the last couple of weeks, .that it is not necessary for him to move the amendment which he has now moved. Many other learned .gentlemen, including Sir John Latham, .a former Attorney-General of this Commonwealth and Chief Justice of Australia, were of the view that in fact the matter was not of general .application and that this matter should be put beyond doubt. With whatever ill grace the AttorneyGeneral now does it, we support him because we wanted him to do it. We shall support this amendment.
Furthermore, the amendment which he has -proposed provides a safeguard which was not in the section of the principal act relating fo sedition, but it was in the amendment which we had already circulated and which was forecast by the Leader of the Opposition (Mr. Calwell) when he moved at the second-reading stage that the bill be withdrawn and re-drafted to ensure certain liberties and freedoms for Australians. The amendment which the AttorneyGeneral has now moved provides what the amendment which we circulated also sought to provide and which the principal act does not ensure in relation to sedition or anything else, namely that it shall not be unlawful to do anything in good faith in connexion with an industrial dispute or an industrial matter. This amendment is a distinct improvement on the present law, whatever that law may mean.
We want also to secure further safeguards than those provided in the AttorneyGeneral’s amendment, and for that .purpose I move -
That the proposed new clause be .amended by adding in proposed section 24f, sub-section (1.), at the end of the sub-section, -the following paragraph: - “ (f) to do anything in good faith of a substantially religious or humanitarian character.”.
Matters of a substantially religious or humanitarian character do not come .within any of the -five guarantees which are already listed in the Attorney-General’s- amendment. They are not industrial matters; they are not pointing out in good faith any errors in policies or constitutions or government in this or any other country. They are of a different character. They are of >a. character to which attention has been directed by several religious and humanitarian bodies in Australia. To give an instance, this proposal would guarantee against prosecution missionaries who were in the Territories when those Territories were over-run. A book was published recently, and ^serialized in the “ Sun-Herald “, telling of the misfortunes of the missionaries who were overrun at the Vunapope mission near Rabaul. Technically, many of the things which the missionaries did would be offences against the preceding sections of the act as amended by this bill. We want to guarantee that they shall not be .so regarded if that circumstance arises again.
To give another example, many transactions of a humanitarian character are performed by Australians during war-time which technically could be breaches of the principal act as amended by this bill. The activities of Red Cross workers or of Quakers in over-run Territories could be offences against the Australian Government in the sense in which offences are regarded in this Part. We want to ensure that if Red Cross workers or Quakers carry on during war-time the work to which they dedicate themselves, they will not be committing any crime against the laws of our country if they happen to be in enemyoccupied territory.
– Prior to the second-reading debate on this bill and also prior to the bill reaching the committee stage I made it clear to the trade union movement that not one clause of the bill was aimed either directly or indirectly at the trade union movement or at any industrial activity as such.
– They did not believe you.
– They did believe me, and it was with a sense of shame that they took part in any demonstration. But I do not want to be drawn into an argument with the honorable member for East Sydney. As there had been some action of a socalled industrial kind - a demonstration which was intended to show that some sections of the trade union movement disagreed with the provisions of the bill and claimed that some of them would affect their interests - I discussed the problem with my colleague, the Attorney-General (Sir Garfield Barwick). After listening to his explanation, I was quite certain that whatever fears were felt by those sections of the trade union movement were .groundless for the reason that you could not succeed in a prosecution under the sections with which we are now dealing - the sections relating to treason, treachery or sabotage - unless you proved two ingredients. The. first ingredient was an act. Something had to be done. The second was that you had to show an intention to assist the enemy. When that explanation was given I felt that there were, reasonable grounds for assuming that honest men would realize that no clauses of the bill would affect the trade union movement as such.
However, as there were still some misgivings I again discussed the matter with the Attorney-General and, in his wisdom - I do not think necessarily in the interests of the trade union movement but certainly to remove any possibility of doubt - he has agreed that certain changes should be made.
I make it clear that the three new sections of the act relate to treason, treachery and sabotage, and that those sections are designed to permit a successful prosecution only where intention, as well as an act, can be proved. In other words, you can succeed only on those occasions when you can prove that a person has a real desire to help the enemy and has committed an act which, in effect, helps the enemy against this country or against a proclaimed ally of this country. The Attorney-General’s proposal in relation to industrial activities is contained in proposed paragraph (e) of section 24f(1.). Sub-section f states - 24f. - (1.) Nothing in the preceding provisions of this Part makes it unlawful for a person - (e) to do anything in good faith in connexion with an industrial dispute oi an industrial matter.
Those words make explicit what previously was implicit in the relevant clause. I do not think that the amendment was necessary - in fact, I am sure that it was not necessary - but I applaud the AttorneyGeneral for removing from the mind of the genuine trade unionist any anxiety that he may have felt that genuine industrial activity or a genuine industrial matter could be affected by the operation of the proposed section. The Attorney-General has pointed out that proposed section 24f (2.) contains certain safeguarding provisions. In other words, if the act is not done in good faith the protection of the preceding sub-sections will not be given. I repeat that the Attorney-General is to be congratulated on the action that he has now taken in the interests of industrial peace because I believe that the new subsection ‘genuinely guarantees that if a person acts in good faith in any genuine industrial dispute or in any industrial matter, the action that he takes does not come within the definition of treachery, of treason or of sabotage.
There are two points which I want to make before I conclude. First, I would not like it to be thought for one moment that under the guise of industrial activity, or on the claim of being involved in an industrial matter, a person could take action of a kind which meant that he was, in fact, committing treachery, treason or sabotage and, as a result of propaganda of a political kind, hope to escape the consequences of his action. That is not intended. We certainly do not intend to let the Communists or the neo-Communists gain control of the government of this country. I also want to make it abundantly clear that a person cannot hope, by means of subterfuge and by other means of that kind, to escape the penalties of the law if, in fact, under the new provisions of the law he has committed treachery, treason or sabotage.
So I make the point as I made it before: We believe that we are strengthening the law relating to the security and defence of this country. I personally believe that the Attorney-General in the first place proposed changes that were essential. I now believe that he has put explicitly into the law what was implicitly there before, and I now believe that some sections of the trade union movement should have a feeling of shame because they participated in demonstrations designed to show that this provision was directed against worthwhile trade union or industrial activity.
I conclude with one other comment. The Deputy Leader of the Opposition has proposed an amendment relating to any action, in good faith, of a substantially religious or humanitarian character. I personally believe that that is quite unnecessary, and for the reason that I put in connexion with industrial activities. For a person to be convicted under this measure, he must be guilty of an intention to commit treachery, treason or sabotage. How any one could think that a humanitarian action, or an action substantially of a religious character, could be within the contemplation of the provisions of the measure relating to treachery is beyond my comprehension. Consequently, I do not think that the Government would be prepared to accept this amendment.
– The committee, I think, must indeed feel some sympathy for the Minister for Labour and National Service (Mr. McMahon) in the humiliation to which he has exposed himself by the speech that he has made on this clause.
– He has had to eat crow.
– As the Deputy Leader of the Opposition says, the Minister has had to eat crow, and he did it in order to keep his place in the Ministry.
– You have not got to continue to be insulting, because there was no humiliation.
– I do not intend to be insulting. I just remind honorable members on both sides of the committee of the speech made by the Minister for Labour and National Service at an earlier stage of this debate when, with every aspect of his legal knowledge and full experience, he assured us that no clause of this nature was even remotely necessary.
– That is not true. I commended every clause in this bill, and I stated that every clause in it ought to be supported by the House in substance, so you are guilty of misrepresentation.
– I do not wish to misrepresent the Minister in any respect whatsoever. I propose to continue to discuss the clause. I think it is common knowledge on both sides-
– Would you have a look at the “ Hansard “ report?
– Just a minute. When the Minister rose and spoke at length he made it quite plain that he thought that no clause of this kind was necessary. The Minister and every other member on the Government benches who has already spoken is faced with the difficult position that the Attorney-General has proposed an amendment to a clause which honorable members on the Government side had already supported in full without amendment. The Minister finds himself in this difficult and humiliating position, and all I can say is that he is deserving of the sympathy of every honorable member.
– Here is a copy of the “ Hansard “ report. Will you read it?
– The Minister is in that position. He has the sympathy of his colleagues, and that is the conclusion of the matter.
Let me reply to the statements made by the Minister to-night. It is perfectly clear that, while he gives nominal acceptance to the safeguard proposed by the AttorneyGeneral, he has also issued a clear warning to the trade union movement of Australia that while this Government is in power paragraph (e) will not mean what the Attorney-General has declared to this Parliament that it will mean. I see that the Minister has left the House. No doubt he has his own reasons for that. He has made it perfectly clear to honorable members, in the warning that he has given to the trade union movement, that the trade unions need not expect, while the present Government is in power, that they will have the guarantee which paragraph (e) of proposed section 24f (1.) purports to give. There is no question about that.
Having heard to-night the Prime Minister of Australia disgrace the office which he holds, having heard him withdraw the brief which he had already given to the AttorneyGeneral, by his first intrusion into this debate and having heard him blackguard the honorable member for Yarra (Mr. Cairns), one can have doubts about every assurance which the Government gives to the Parliament with respect to the way in which this law will be interpreted. Why, in the name of common sense, is the Government opposing the amendment proposed by the Opposition to this clause if the Government is indeed acting in good faith, as the Attorney-General professes? The clause provides that nothing in the preceding provisions makes it unlawful for a person to do certain things. With all those things we agree. We are quite prepared to accept them, and we propose an amendment which states that nothing in the preceding provisions makes it unlawful for a person to do anything, in good faith, of a substantially religious or humanitarian character.
Is there any member on the Government benches who is prepared to stand up and give one reason why the Opposition’s amendment should be rejected? Is there any reason on earth why-
– You cannot understand it, surely.
– Have you any objection to its inclusion? The member is silent.
– I am not silent.
– Have you any objection to its inclusion? If there is any objection to its inclusion it must be, surely, that the Government does not wish to put this guarantee in this matter beyond doubt. All that the Opposition is asking for is that activities of a genuinely humanitarian or religious kind performed in good faith shall be protected. Members on the Government benches are silent on this issue. It is only a few minutes ago, in this committee, that we heard the Prime Minister, who has frequently in these precincts declared himself to be a simple Presbyterian, declare that where the Presbyterian Church disagrees with him it is wrong, and no clause of that kind can protect it. I took down the wordsof the Prime Minister as he uttered them. He said -
In this case the Presbyterian Church has shown that it is dangerously simple. It has been misled into accepting some of the proposals and arguments put forward by my opponents.
In other words, the Prime Minister’s declaration is to stand. No declartion is to stand against it. If that is not the view of members on the Government benches, why do they not accept the Opposition’s amendment, which seeks to place this provision entirely beyond doubt? It simply states that whenever any one does anything in good faith of a substantially religious or humanitarian character he shall be exempt from the provisions of this part.
– Why did you miss out putting in a clause about members of Parliament themselves?
– If the honorable member wishes to propose such a clause, that is within his jurisdiction. The clause we are proposing simply deals with a position that is surely beyond doubt.
– Order! The time allotted for the consideration of proposed new clause 23b has expired.
Question put -
That the paragraph proposed to be inserted in the proposed new clause (Mr. Whitlam’s amendment) be so inserted.
The committee divided. (The Temporary Chairman - Mr. B. M. Wight.)
Question so resolved in the negative.
Proposed new clause agreed to.
Clauses 24 to 26.
The TEMPORARY CHAIRMAN.Order! The time allotted for the consideration of clauses 24 to 26 has expired. The question is, “That the clauses be agreed to “.
Question resolved in the affirmative.
Proposed new clause.
– i move -
That the following new clause be inserted in the bill:- “ 26a. Sections thirtyj to thirty r (inclusive) of the principal act are repealed.”.
The purpose of this amendment is to repeal sections 30j and 30k of the Crimes Act 1914-1959 which were inserted in. 1926. Section 30j reads - (1.) If at any time the Governor-General is of the opinion that there exists in Australia a serious industrial disturbance prejudicing or threatening trade or commerce with other countries or among the States, he may make a Proclamation to that effect, which Proclamation shall be and remain in operation for the purposes of this section until it is revoked. (2.) Any person who, during the operation of such Proclamation, takes part in or continues, or incites to, urges; aids or encourages the taking part in, or continuance of, a lockout or strike -
Sub-section (3.) gives the definition of an employee, an. employer, a lock-out and a strike. Section 30k of the act reads -
Whoever, by violence to the person or property of another person, or by spoken or written threat or intimidation of any kind to whomsoever directed, or, without reasonable cause or excuse, by boycott or threat of boycott of person or property -
obstructs or hinders the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth;
compels or induces any person employed in or in connexion with the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth to surrender or depart from his employment;
prevents any person from offering- or accepting employment in or in connexion with the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth;
obstructs or hinders the transport of goods. or the conveyance of passengers in trade or commerce with other countries or among the States;
compels or induces any person employed in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States to surrender or depart from his employment; or
prevents any person from offering or accepting employment in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States, shall be guilty of an offence.
Penalty: Imprisonment for one year.
Under these- two sections, the BrucePage Government took power to inflict penalties that were not known at that time in legislation in any other part of the Commonwealth. This legislation was panic legislation. It was framed by the then Attorney-General, later Sir John Latham and Chief Justice of the High Court of Australia, who, paradoxically enough, is now a critic of this Crimes Bill. He has lived long enough to see the foolishness of the repressive legislation of which he was tha author as Attorney-General in the Bruce-Page- Government: That legislation was put on the statute-book at the time of the British seamen’s strike. This strike was inspired by Communists in Great. Britain among British seamen in Australian waters and not anywhere else; - not even in United Kingdom waters - and- it immobilized the whole of British shipping. The Australian working class of the time supported the British- seamen in their protestation and in their strike.
The Opposition has always felt that these provisions should have been taken out of the acf. It is easy for the Government to chide us for not having proposed the repeal of the legislation when we were a government. We had a lot of other things to do at that time. We thought; in any case, that these sections were dead letters. Perhaps we should have repealed them, museum pieces though they were. The very fact that the Government has introduced other legislation which, in our view, is equal in draconian severity to this legislation is a reason, not only for our opposition to the clauses that we have already opposed; but for the repeal; of the sections in the. act- of 1925,
Proclamations under these provisions have been issued on only about’ three occasions, if my memory serves me rightly. If ai piece of legislation has been used only three times during its 35 years on the statute-book it ought to be repealed. It was used once in 1926 when Walsh and’’ Johnson were arrested and threatened with deportation. There was a famous appeal to the High Court of Australia when the present Chief Justice of New South Wales made his name by having the High’ Court determine the issue as to when a migrant ceases to be a migrant. That learned gentleman, formerly the leader- of the Labour Party and Attorney-General and Minister for External Affairs in the Chifley and Curtin Governments; won a victory in the High Court which, to the- public mind, -seemed to render section 30 J inoperable.
There is no justification for keeping that section in existence any longer. If a serious situation arose at any time the Government could pass special legislation. In 1949, when the Chifley Government had to face a certain situation, it passed special legislation of limited duration and when the crisis passed the legislation went off’ the statute-book. In our view, that is the- way to deal with a situation of the sort that arose in 1949 and in 1925-26. We do not think that the statute-book should be cluttered up- with unnecessary provisions that are never used - provisions which are supposed to be a deterrent but which are really provocative in their intent, which are only irritant, and which, in the minds of quite a lot of workers can be interpreted merely as meaning, that an anti-Labour government is so class-conscious that it is determined to use the power of the State against the worker, no matter how legitimate his case may be and no matter how incensed’ he may feel when he goes on strike in the pursuance of an objective which he thinks is just, such as the improvement of his conditions or wages. ft was not a revolutionary movement in 1926, following the 1925 strike, that impelled the workers of Australia to strike in sympathy with the British seamen. It was the spirit of mateship. It was evidence of working-class solidarity. The Government of the day which had been returned to power at the general election of 1925 acted savagely and repressively. We think that these provisions ought now to be struck from- the statute-book.
Order!’ The Honorable member’s time has expired.
– Already, during the second-reading debate on this bill, I- have dealt with these two sections- which, are called, the industrial sections of the. legislation. I then gave reasons why any amendment proposed should be rejected:. The provisions, which have been read very efficiently by the Leader of the Opposition cover a most serious state of affairs. In. tha first place, under section 30j of the act- -
If at any time the Governor-General is of opinion that there- exists in Australia a serious industrial, disturbance- prejudicing or threatening trade or commerce with other countries or among the States, he may make a Proclamation . . .
Sub-section (2.) of section 30j provides -
Any person who, during the operation of such Proclamation, takes part in or continues; or incites to, urges, aids or encourages the taking part in or continuance of, a lock-out or strike . . shall be guilty of an offence . . .
Similarly, section 30k reads as follows: -
Whoever, by violence to the person or property of another person, or by spoken or written threat or intimidation of any kind . . . I do not need to go through the whole of the provision. It provides that any such person who obstructs or hinders trade or commerce shall also be guilty of an offence. As I have said, in order to come within the scope of these two sections a person has to be guilty of a very serious offence, threatening interstate trade or commerce.
The Opposition has suggested that these sections should be repealed. I can give the complete answer to that suggestion and I can demonstrate why these sections should be retained. They are in the legislation in order that the Government of this country may ensure that there will not be any serious disruption of interstate or international trade. It is up to us to maintain law and order within the community. If the government of the day, whether Liberal or Labour, feels that action is being taken of a kind that prejudices public safety and security, then it is the duty of that government to take action. Consequently, I believe that, in terms of principle and of policy, it is right that these two sections should be retained.
Let us look at the Opposition’s argument. These two sections have been in existence since 1926. Unless the Opposition is prepared to admit that when it was in office it did not know what it was doing and retained these sections because it did not realize they were there, then I am prepared to argue that the case for retention is complete. The Labour Government had the power to repeal these sections if it wished to do so, but it realized that they could be used in the last resort, and it was not prepared to take repeal action. I am prepared to submit, therefore, that these provisions should be retained.
The Leader of the Opposition has said that they are provocative, and he has also said that the Labour Party would prefer special legislation to meet special circumstances. I do not agree that they are provocative. In the last three or four years, and certainly since I have been the Minister for Labour and National Service, there have been no recommendations put up by industrial organizations for the repeal of these sections. It was not until the amending bill’ came before this Parliament that the suggestion was ever made that the sections be taken out.
The second argument of the Leader of the Opposition was that a special act should be passed in special circumstances. We on this side of the Parliament believe that there should be a law clearly set out before a criminal act may be alleged to have been perpetrated. We should let the individual know exactly what the law is, so that if he does commit an offence against the law he can expect to be prosecuted and punished. We do not believe that a person should be allowed to act in a certain way, believing that he is not contravening the law, and that we should then alter the law, giving the alteration retrospective effect, and punish the person concerned under the provisions of the retrospective law. I would imagine that my friend from Lalor (Mr. Pollard), who has just walked in, would be the greatest exponent in this chamber of that principle. We believe, therefore, that these provisions should remain for their deterrent effect. They constitute one of the greatest deterrents to militant communism, and for that reason they should be kept in the act.
Now let us look at the record of the Labour Party. We all know that in 1949 a Labour government passed a special act of Parliament, based upon the contempt power, which was far more punitive, and far more difficult to understand and interpret, and far more temporary in its operation, than these sections 30j and 30k could be. But a still more important point is that at the time when that law was passed, those who might have acted in a contemptuous way did not know that the law might be introduced, and I suggest that they were entitled to think that any law that was introduced would not have a retrospective effect.
We are convinced that sections 30j and 30k nave a deterrent effect. They have not been frequently used. They are meant to be used as a last resort. A Labour government had the power to repeal them had it thought fit to do so, but it did1 not. It did introduce certain penal provisions of a quite severe character, which we feel were not warranted at that time, and were of a kind that should not be a parti of general Australian law. For these reasons, and speaking purely from the industrial viewpoint, I believe these sections should be retained. I do not think that they interfere with any genuine industrial activity, provided such activity is undertaken sensibly and for a genuine industrial purpose.
.- I have always found it difficult to understand why what are regarded as industrial offences were ever included in a Crimes Act. I am quite sure thai there are very few Australians who would regard going on strike as a crime. The hypocrisy of this Government is clearly exposed when it claims that certain parts of this legislation are not aimed against the trade union movement. Although members of the Government have never accepted the proposition, I submit that the trade unionists have as much right to withhold their labour when they are dissatisfied with their conditions of employment as other persons have a right to withhold their products from the market when the ruling prices do not meet with their approval. For the life of me I cannot see why these sections that we are now dealing with are contained in a Crimes Act. They do not deal with matters purely industrial in character. The executive government has the right at any time to declare, in respect of an interstate dispute or one affecting trade with overseas countries, that a state of emergency exists, and that then the unionists participating in the dispute shall become liable to the most savage penalties because they are striking for what they regard to be right.
I just want to correct one statement made by the Leader of the Opposition (Mr. Calwell). Probably the lapse of time has impaired his memory of the matter, but I can tell the committee that the 1926 British seamen’s strike, out of which these provisions eventually arose, was not a Communistinspired strike at all. Mr. Have lock Wilson was then the secretary of the British Seamen’s Union, and he had betrayed his membership by accepting a reduction of pay - and seamen’s pay at that time was little enough. It was in sympathy with the British seamen, who were merely fighting for a living wage, that the Australian unionists made common cause with them. In my opinion the British seamen were quite justified in putting up the struggle that they did on that occasion, and the Australian unionists were equally justified in supporting them in their struggle.
In 1926 a government of a similar character to the one at present in office attempted to deport from Australia two trade union leaders. As the Leader of the Opposition has pointed out, the matter was subsequently put before the High Court, and it was then decided that the Government had no power under the Immigation Act to deport Walsh and Johnson, the two men concerned, as prohibited immigrants, because they had lived in the country almost a life-time, and could no longer be regarded as immigrants. The Government of the day then had to get around this provision which had given some protection to trade unionists who had not been born in Australia, and it introduced these vicious provisions which gave power to the Attorney-General to have deported any person who takes part in a strike after an emergency has been declared, irrespective of whether he is a naturalized British subject, and irrespective of the period of his residence in Australia.
I am quite certain that many of the new Australians who have taken up residence in this country will be alarmed when they know that they are being treated differently from other trade unionists who were born in Australia. Even if new Australians have become naturalized British subjects, they do not have equal rights with other citizens, because they always have held over their heads the threat that should they make common cause with other unionists in a strike involving interstate or overseas trade, they become liable, on the order of the Commonwealth Attorney-General, to deportation from this country. I say that legislation which allows such discrimination should not be permitted. Industrial disputes affecting the maritime industries have had nothing to do with national security.
What will happen to the alleged protection embodied in this measure by the AttorneyGeneral, who said that unionists who act in good faith have nothing to fear under the terms of this bill? I ask the Minister whether the protection for unionists which he claims has been embodied in this measure - a protection, he says, which will enable them to take part in an industrial strike, if they act in good faith, without their liberties being endangered by this bill - will apply to the provisions of the existing act which the Opposition now wants removed. In my opinion, there is no protection at all, because anti-Labour governments declare that every strike is Communist-inspired, and is a threat to the security of the country and is aimed at sabotaging the national economy. Such governments would have no hesitation in having the necessary proclamation made in respect of any industrial disturbance that interrupted interstate or overseas trade and commerce, and every trade unionist concerned in the disturbance would be liable, if he were eighteen years of age or older, and if he continued to take part, to one year’s improsonment. No Australian citizen who approaches these matters in a reasonable way could see any justification for any government possessing those powers.
I believe that of recent years the trade unions have permitted too much encroachment on their right to strike. As .a result, to-day they suffer the most savage penalties if they exercise that right. Remarkably enough, we had the latest illustration of this only yesterday, when three judges sitting as a bench of the Commonwealth Industrial Court fined the Waterside Workers Federation of Australia £500 because some of its members in Melbourne saw fit to strike when they could not get an industrial dispute satisfactorily resolved. Two of those three judges were Liberal Party members of this Parliament, and supporters of this Government in the Parliament, until quite recently - one a Senator and Minister, and one a member of this place. Do honorable members imagine for one moment that the trade unionists of Australia will tolerate very much longer a system of arbitration or of control with respect to industrial disputes when the people appointed to adjudicate in those disputes have in recent times been
Liberal Party members of this Parliament and by their speeches and actions as members of the Parliament have displayed their antagonism to the trade unionists? In my opinion, these circumstances are leading to industrial unrest in this country.
Everybody knows that the maritime unions are militant organizations. They fight to preserve the conditions which their members have won by hard struggle, and they will not be given any protection - though the Attorney-General claims they will be - if they strike for an industrial cause, even if they do so in good faith. Even though a strike has nothing to do with matters involving treachery, treason or sabotage, if the unionists are fighting to preserve their industrial conditions and their wage standards, they will be liable to prosecution and severe penalties of up to twelve months’ imprisonment if they continue to participate in such a strike.
I say finally, for time will not permit me to say much more, that the trade unionists of this country must recognize that they no longer can look to the courts for protection in industrial disputes, because the Commonwealth Industrial Court has been stacked with former Liberal Party members of this Parliament who, in my opinion, have been rewarded for loyal political service to the party to which they belonged - a party which is opposed to the preservation of industrial standards in this country. Therefore, the workers now have to consider, with this vicious legislation on the statute-book, what further protective action they can take by the use of their organized industrial strength, allied with the strength of the political Labour movement. They have to resist this fascist kind of legislation. If they do not, there will be no worth-while future in this country for labour or for the ordinary citizen.
– Mr. Temporary Chairman, the honorable member for East Sydney (Mr. Ward) very conveniently overlooked the fact that Labour, when in office,-
Order! The time allotted for the consideration of proposed new clause 26a has expired.
Question put -
That the new clause proposed to be inserted (Mr. Calwell’s amendment) be so inserted.
The committee divided. (The Temporary Chairman - Mr. B. M. Wight.)
Majority . . . . 20
Question so resolved in the negative.
Clauses 27 to 48 - by leave - taken together.
Section seventy of the Principal Act is repealed and the following section inserted in its stead: - “ (2.) A person who, having been a Commonwealth officer, publishes or communicates, without lawful authority or excuse (proof whereof shall lie upon him), any fact or document which came to his knowledge, or into his possession, by virtue of his office, and which, at the time when he ceased to be a Commonwealth officer, it was his duty not to disclose, shall be guilty of an offence.
Penalty: Imprisonment for two years.”.
.- by leave - I move -
In proposed section 70, sub-section (2.) -
Omit “ (proof whereof shall lie upon him) “; and
After “ disclose “ insert “ and which at the time of publication or communication had not been published or made known to the public “.
Proposed new section 70 replaces the section of the same number in the principal act; the general marginal notation of both is “Disclosure of information by Commonwealth officers “. The Opposition believes that it should not be possible for Commonwealth officers to harm the country or to enrich themselves by disclosing secrets which come to them in the course of their employment. Nevertheless, we do not believe, first, that we should impose upon them the onus of disproving one of the elements of the offence. We do not think that this is an appropriate case for reversing the normal onus of proof which rests on the Crown in criminal cases. Section 70 of the principal act does not provide for the reversal of the onus of proof. We do not think that in this respect the new section is an improvement on the old.
We believe, secondly, that there should be an exception in cases where the secret matters are in fact no longer secret. There are far too many instances in this amending bill which make it possible to deal with what are called official secrets, but which are neither official nor secret, which make sabotage the damage of articles which have no defence significance at all, and which make espionage the revelation or communication of materials which are not secret and which have no defence significance.
This provision is open to criticism on several grounds. It is not confined to the disclosure of matters which are plainly and genuinely secret matters - for instance, defence matters. It is wide enough to cover thousands of matters which are not really secret at all. There are few words more absolute in sound but more relative in fact than the word “ secret “. What is confidential or secret to-day may be common knowledge to-morrow. Secondly, as applied to the Public Service, there are many matters which may be secret or confidential at a given time, not because they are intrinsically secret matters involving the safety or security of Australia, but because they arise at certain stages of the formulation of governmental or departmental policy. The reason for the matter being restricted or confidential or secret may disappear once a new phase of policymaking is reached or once the policy itself becomes a matter of public or at least general inter-departmental knowledge.
Thirdly, the duty not to disclose may not always be clearly defined. It may be that there rs an instruction in writing about certain matters which must not be disclosed. This is unlikely if the fact or document is genuinely a secret matter. It may be that in certain Commonwealth undertakings everything is secret and remains so, so that no fact or document coming to the knowledge of or into the possession of the officer may be disclosed. But this surely rs only in rare instances. In the general run, there is unlikely to be any very precise instruction or direction in relation to any particular fact or document. This set of circumstances alone would place great hardship on a former public servant who contemplated publishing material which included facts that had come to his knowledge whilst he was an officer of the Commonwealth.
– Publishing his memoirs!
– There would be many thoroughly worthy and admirable instances of such memoirs. Sir Robert Garran, for instance, used a very great deal of material in his posthumously published “ Prosper the Commonwealth “. Since it was published posthumously he would not be subject to this provision, but if it had been published during his lifetime, he would have been subject to prosecution under this provision; not that he did any harm to his country, or to any government that he served or to the service of which he was the leader for several decades, but technically because he did publish very much material which he was never authorized to publish. Much of the material touched upon matters which were already matters of public knowledge, and indeed of history. We have all been enriched by his full story of many matters with which he was associated; but he was never authorized to publish that material and it would have been impossible for him to secure authority to publish it.
– Mr. Frank Green would be in the same boat; he published memoirs, too.
– He could have given details of the Browne-Fitzpatrick case.
– I do not concede that Mr. Green, if he published any material on the contempt case that has been mentioned, would be committing an offence, because section 22 of the principal act exempts matters of parliamentary privilege. That is a matter of which my learned friend, the honorable member for Wide Bay (Mr. Bandidt), was not aware or which he did not recollect when he interjected on my colleague, the honorable member for EdenMonaro (Mr. Allan Fraser). A person who was publishing memoirs would have to seek specific authority for the publication, perhaps many years later, of each fact which he proposes to publish. He would have the onus of proving that he had been given such authority. Such authority might well prove difficult to obtain, especially if much time had elapsed since the person ceased to be a Commonwealth officer. At such later time, what person has the authority to unfreeze the fact and permit its publication?
Fourthly, with the passing of the years, the human memory becomes more fallible. Fact and opinion are not always easy to separate in retrospect. There is no limitation of time in the provision, so that the duty not to disclose remains with the officer until his death, unless he either obtains specific authority to publish the fact or document - and that is the only safe way for him - or takes the risk with a fact or document which appears to have become public knowledge with the passing of time, In the latter event he could not prove lawful authority, and it may well be doubted whether the circumstance that the fact had become public knowledge would constitute lawful excuse under the subsection.
Lastly, the matter of criticism in the four cases I have just mentioned is sufficient to show that the offence created by this subsection is dangerously wide and is likely to muzzle former public servants or to inhibit them from publishing information and comment on problems in which they may have had wide experience, and to the public understanding of which they may have much to contribute. The provision could be used not only to punish former Commonwealth officers, but, just as importantly, to prevent the publication of information embarrassing to the particular government at the time of the proposed publication, but nevertheless no longer having any real secret or security aspect about it. Like a number of other clauses in this bill, this provision would operate as a deterrent. It is no answer to say that responsible former officers will not be imperilled if they are careful what they publish. The true position is that responsible former officers will not publish at all, and the whole community may be the poorer for it. This provision strikingly illustrates the proposition that civil liberties are generally in danger when persons fear to exercise the freedoms which they have, in fact, possessed, hitherto, and which the law has left to them hitherto. This provision will in fact make it a continuing offence for public servants to publish information which is no longer secret, and where there is no real moral duty on them to remain silent.
– How would that apply to Sir Frederick Shedden?
– Sir Frederick Shedden would have been wise to keep his opinions to a parliamentary committee and not to publish a book. Indeed, the Minister for Territories (Mr. Hasluck) probably would be guilty of an offence under this act in publishing some of the matters in the official war history. Any public servant or Minister has placed upon him the onus of showing that he had authority to publish these matters - matters which are no longer secret, but which he can no longer find any person to give him permission to publish.
.- I do not want to go into this in great detail, but I should like to point out to the committee that there is no departure at all from the general practice of the law in requiring a person to establish lawful authority, or excuse, where the offence is doing something without lawful authority or excuse. This is the regular procedure of law. There is nothing new or different in what is provided in that respect in this sub-section.
– But it is not in the old section.
– But the old section did not have a provision as to doing it without lawful authority or excuse. This sub-section is constructed quite differently and deals with a different situation. This sub-section intends, by the words, “ without lawful authority or excuse “, to enable an officer, for example, to cover the case which the Deputy Leader of the Opposition suggests by his second amendment. It is quite a good excuse to say, “I am quite free from my duty not to disclose because it has been made public “. That is a good excuse, and there is no need to include words to cover a person in such a case. The law is not quite as silly as all that. So, there is no departure from regular standard practice in requiring the defendant to prove lawful authority where the offence is doing it without lawful authority. The commonest case, I suppose, is that in which the law provides that the man may not fish without a licence. The onus is always upon the person concerned to produce his licence. The onus is not put on the Crown to prove the negative - that he has never had one. There is no need for the second amendment proposed by the Deputy Leader of the Opposimon because what is required is fully covered by the word “ excuse “.
We have heard a great deal from the Deputy Leader of the Opposition about people being discouraged by this provision from making subsequent disclosures. First of all, people could apply for permission. That is the easiest thing to do. Secondly, nothing in the amendment proposed by the Deputy Leader of the Opposition would make it any easier for such people. The Opposition has not proposed any amendment which is directed in any way to the particular matter which seems to be the main burden of the Deputy Leader’s complaint.
.- The point made by the Deputy Leader of the Opposition (Mr. Whitlam) in referring to the memoirs entitled “ Prosper the Commonwealth “ published posthumously under the authorship of Sir Robert Garran does not seem to me to have been answered by the AttorneyGeneral. The position is that we in Australia are greatly handicapped by the failure of responsible officers and of people who have particular knowledge of phases of the history of this nation, to set down their memoirs, and particularly their recollections of some of the great public events in which they have taken part. Every encouragement should be given to them to do so because this nation is notably lacking in this respect. Many phases of our history are passing into oblivion with the passing of men in whose memories the events remain, and who would be at liberty to set them down.
It should be the object of the Parliament to set beyond any conceivable doubt the right of these men to publish their memoirs. Indeed, it should be the object of this Parliament to encourage them to do so in order that the history of this nation shall be properly known and1 in order that all chapters of it, which are of importance, shall be preserved.
– Including secret information?
– No, not including secret information. The Deputy Leader of the Opposition has already made it perfectly plain that the Labour Party firmly believes, and raises no question whatever on the issue, that secret information which has come to the knowledge of a person in the course of his duty as secret matter must be preserved as secret. The object of the amendment is first to liberalize and modify the wording of the proposed new sub-section which imposes a new prohibition upon retired officers of the Commonwealth Public Service. The principal act contains no restriction whatever upon retired officers of the Commonwealth Public Service. Now, the Government proposes to place a severe restriction upon retired officers of the Commonwealth Public Service.
The Attorney-General argues that any man who dared to publish his memoirs would not expose .himself to the penalties of the law by so doing if he obtained the appropriate official permission and if he breached no official secrets. But this matter is placed beyond all doubt by the amendment proposed by the Deputy Leader of the Opposition, and for that reason this Parliament and the Government should accept it. The position that we are trying to establish is that a man should not be deterred by fear from publishing things which it is to the advantage of the people of Australia that he should publish. If the words “ proof whereof shall lie upon him “ are taken out, Mr. Chairman, you make it plain beyond doubt by stating that, at the time of publication of the communication, it had not been published or made known to the public. You are removing that fear, that sense of caution, from the public servant, and you are giving him the incentive and the encouragement to write material which is not only appropriate but important in the record of the history of this nation.
– I quite fail to follow the argument of the honorable member for EdenMonaro (Mr. Allan Fraser) when he suggests that the amendment moved by the Opposition would in some way make it more lawful for a man to publish, in memoirs or in some other way, once he had left the Commonwealth Public Service information which it was his duty not to disclose while he was a member of the Service; in other words, classified information. The honorable member suggests that because proof did not lie upon him, it would be easier for him to disclose that information without lawful authority or excuse; but he would still be liable to prosecution under the act, even as he would be if the Opposition amendment were accepted. If the information had not been made public he would still be liable to prosecution.
– And rightly so.
– And rightly so, says the honorable member. Yet, the whole of his argument was that we propose to discourage people from disclosing classified information in their memoirs.
The honorable member in fact advanced the suggestion that officers who had left the Public Service should themselves be allowed to decide what they should publish, what should be classified information and what should not be classified information. Quite clearly, they could not have that power. The government of the day, which classifies the information that it has within its knowledge, should be the first authority to decide what may be disclosed and what may not be disclosed. The arguments advanced by honorable members opposite in regard to official war histories and the like are quite fantastic, because obviously, information disclosed in an official war history is disclosed with the knowledge of the appropriate government departments. Therefore, Sir, I fail to see any validity in the argument thatpeople will be discouraged by the bill as it is now before the committee, or that the position will be in any way altered by the amendment moved by the Opposition.
If a matter is already common knowledge, surely it is a plain excuse to mention the fact that it is within the knowledge of a particular official. That seems to me quite evident from the wording ofthe bill. In the case of disclosure of information, when a man alleges that he has lawful authority, he is the only person who can say whence he obtained that lawful authority. There should not be an onus on the Crown in that respect. As the Attorney-General has said, this is quite a normal provision. He instanced the position in regard to the holding of a licence to fish and a licence to drive. People are required to produce their authority for doing those things. There is nothing to fear from this provision of the bill. As I have said, it is quite a normal provision. I cannot see much point in the Opposition’s amendment, beyond an attempt to obstruct the passage of the bill.
.- It is clear that the proposed provision imposes a restriction upon Commonwealth public servants and former Commonwealth public servants not to disclose certain information which it is their duty not to disclose. There is no reference to that information being secret, or classified, or of importance to defence. The provision merely states that it is the duty of public servants not to dis close certain information. A public servant could receive an instruction from a superior officer that it was not his duty to disclose information, and from then on,if at some subsequent time that information was disclosed, that part of the offence would be complete.
It may well be the duty and the responsibility of a public servant or a former public servant to disclose certain information which it is in the public interest to disclose. If that information isnot secret and important, he should have the right and the responsibility to do so. He should not have to seek the permission of some member of a department who may want to keep that information secret for his own personal reasons. There are many reasons for that being done, and there have been many instances of it. I am reminded of the position of Major-General Legge with regard to the St. Mary’s ammunition filling factory. That was a classical example. The Minister, by interjection, has suggested that he wants a public servant to resign in order to be able to do this, and to endanger his job and career. The Government, above everything else, stands in favour of restriction and the Opposition in favour of freedom.
– Order! The time allotted for the consideration of clauses 27 to 48 has expired.
Question put -
That the amendments (Mr. Whitlam’s) be agreed to.
The committee divided. (The Chairman - Mr. G. J. Bowden.)
The heading to Part VII. of the Principal Act and sections seventy-seven, seventy-eight and seventy-nine of the Principal Act are repealed and the following heading and sections inserted in their stead: - “ Part VII. - Espionage and Official Secrets. “ 77. - (1.) In this Part, unless the contrary intention appears - article ‘ includes any thing, substance or material; cipher ‘ includes -
(a) a code or cryptogram;
(b) a system, method, device or machine whereby a cipher, code or cryptogram may be created; and
(c) a code word, password or identification signal; information ‘ means information of any kind whatsoever, whether true or false and whether in a material form or not, and includes -
(a) an opinion; and
(b) a report of a conversation; model ‘ includes design, pattern and specimen; plan ‘ includes a written record of a survey or of a bearing or measurement taken for for the purpose of fixing the position of a place; sketch ‘ includes a representation of a place or thing; the Commonwealth ‘ includes the Territories.
– Clause 49 inserts a new heading to Pan VII. in the principal act and now calls it “ Espionage and Official Secrets “. It also replaces the existing sections 77, 78 and 79. The proposed new section 77 is the interpretation section and a considerable number of words which are used in the following sections, “ espionage “, “ official secrets “, and others that follow are therein defined, and they are defined in very wide terms. For instance, an “ article “ includes any thing, substance or material. “ Information “ means information of any kind whatsoever, whether true or false and whether in a material form or not and includes (a) an opinion, and (b) a report of a conversation. There are definitions also of “ cipher “, “ model “, “ plan “, and “ sketch “. I move -
In proposed section 77, after sub-section (1.), insert the following sub-section: - “ ‘ (1a.) The foregoing definitions shall apply only to matters which are material to the safety or defence of the Commonwealth or a part of the Queen’s Dominions.”.
The phrase “ the safety or defence of the Commonwealth or a part of the Queen’s dominions “ occurs in proposed new section 78, which deals with espionage, and proposed new section 79, which deals with official secrets. The Opposition agrees that it should be a crime to commit espionage or a breach of an official secret where the safety or defence of the Commonwealth or a part of the Queen’s dominions is concerned. Nevertheless, the definitions of “ espionage “ and “ official secrets “ are so wide that there is no guarantee that the matters concerned in those crimes will relate to the safety or defence of the Commonwealth or a part of the Queen’s dominions.
I shall take an example. It is espionage to approach, be in the neighbourhood of, be in, enter, inspect or pass over a prohibited place. Earlier, I directed the attention of the committee to the extreme width of the definition of “ prohibited place “. A prohibited place may be only a private office or private factory as long as it has a government contract for the making or storing or obtaining or testing of goods which may be of use in time of war. But matters which are the subject of sketches, plans, photographs, models, ciphers, notes, documents, articles or information, in the section dealing with espionage, need not be matters which are of use in time of war at all.
Again, proposed new section 79 dealing with official secrets may concern a sketch, plan, photograph, model, cipher, note, document or article which relates to a prohibited place or anything in a prohibited place if the accused person knows or by reason of the nature of the sketch or document or the circumstances in which it came into his possession or control or for any other reason he should have known that it should not be communicated to a person not authorized to receive it. There is no obligation that such matters should relate to the safety or defence of the Commonwealth or a part of the Queen’s dominions. We believe that it ought to be made quite plain in the definition section, right at the beginning of this part of the act, that any of these definitions, wide as they are, should apply only where the safety or defence of the Commonwealth or a part of the Queen’s dominions is concerned.
It is not satisfactory that these matters - and particularly matters which are labelled “ espionage “ and so on - should relate to articles which have no defence significance at all, or that very high penalties relating to official secrets should apply to acts which, in fact, have no defence significance at all. I know that some honorable members will urge: “ How are we to punish such crimes? Are we left without defence in such matters? “ I therefore direct the attention of the committee to the fact that under the Defence Act all defence property is adequately protected and it is an offence to give or obtain information as to defence unlawfully and there are very high penalties for doing so. Again, it is an offence to sketch prohibited fortifications and so on. In all these things it is already an offence to do anything which has a direct bearing on the defence of our country. But the definitions in this part of the bill are so wide and they incorporate matters concerning prohibited places, which can be of such a wide character that we believe it is unsatisfactory to leave this part of the legislation in its present position.
We therefore urge that the definitions be confined to matters which relate to the safety or defence of the Commonwealth or part of the Queen’s dominions, as the sections ostensibly relate, but in fact need not.
The following bills were returned from the Senate without amendment: -
Sugar Agreement Bill 1960. Weights and Measures (National Standards) Bill 1960.
House adjourned at 11.1 p.m.
The following answers to questions were circulated: -
m asked the Minister representing the Minister for Civil Aviation, upon notice -
What consultation or action has been taken to secure complementary State legislation since the passage of the Civil Aviation (Damage by Aircraft) Act 1958 and the Civil Aviation (Carriers’ Liability) Act 1959?
– The Minister for Civil Aviation has supplied the following answer: -
There has been correspondence with State governments on both matters and also discussions. At the meeting of the Australian Transport Advisory Council held on 19th July, 1960, the Commonwealth and State Ministers, after full discussion, reached positive conclusions concerning the extension of the principles of the Civil Aviation (Carriers’ Liability) Act 1959 to intra-state carriage. Further action is contemplated as soon as the recommendations of the council have been approved by State governments. As I have indicated on a previous occasion, a substantial part of the Civil Aviation (Damage by Aircraft) Act, especially the chapters relating to enforcement of foreign judgments and international insurance practices, does not involve any question of complementary State legislation. Two States - Victoria and New South Wales - already have legislation dealing with damage by aircraft and at least one other State is known to have such legislation in contemplation.
z asked the Minister representing the Minister for National Development, upon notice -
Bureau, of Mineral Resources in conjunction with the Queensland Department of Development and Mines?
– The following answers to the honorable member’s questions have been supplied: -
m asked the Minister for’ Labour and National Service, upon notice -
What International Labour Organization Conventions has Australia ratified, and when did it ratify them?
– The answer to the honorable member’s question is as follows: -
y asked the Minister for Health, upon notice -
– The answers to the honorable member’s questions are as follows: - 1 and 2. Cases of hepatitis are recorded on a weekly basis. Cases reported for the 12 months period ended 29th October, 1960 were-
m asked the Minister for Health, upon notice -
– The answers to the honorable member’s questions are as follows: -
m asked the Minister for Health, upon notice -
When will the July, 1960, edition of the “ British Pharmaceutical Codex “ be gazetted under the Therapeutic Substances Act?
– The answer to the honorable member’s question is -
No date has vet been fixed.
Cite as: Australia, House of Representatives, Debates, 22 November 1960, viewed 22 October 2017, <http://historichansard.net/hofreps/1960/19601122_reps_23_hor29/>.