14th Parliament · 1st Session
The President (Senator the Hon. P. J. lynch) took the chair at 3 p.m., and read prayers.
The following papers were presented : -
Defence Act - Regulations amended - Statutory Rules 1935, No. 106.
Seat of Government Acceptance Act and Seat of Government (Administration) Act-
OrdinanceNo. 10 of 1935 - Canberra Community Hospital Board (No. 2).
Nurses Registration ordinances - Regulations amended.
Sugar Agreement Act - Fourth Annual Report of the Fruit Industry Sugar Concession Committee, for the year ended 31st August, 1935.
Commonwealth Railways Act - Report on Commonwealth Railways Operations for the year ended 30th June, 1935.
– On the 23rd October I informed Senator Johnston that I would obtain information for him regarding the price and analysis of super phosphate fertilizer. I am now in a position to advise the honorable senator that the prices charged per ton f.o.r. in each capital city and the analysis are as follows : -
Bill brought up by Senator Sir George Pearce and read a first time.
asked the Minister representing the Minister for Defence, upon notice -
– The Minister for Defence has supplied the following answers : - 1, 2 and 3. The necessity for wind tunnels and the efficiency of the particular tunnels mentioned in questions 2 and 3 are entirely a matter of the particular aerodynamic research and experiment contemplated. 4 and5. As previously advised, in reply to the honorable senator’s questions on 24th October, the question of aerodynamic research was included in the list of subjects for study and investigation by the Controller of Civil Aviation during his recent tour of duty abroad. Until the Controller’s report has been examined in detail, I am not in a position to statethe policy of theGovernment in regard tothe matters raised in these questions.
In committee: Consideration resumed from the 31st October (vide page 1193).
Clause 3 -
Section 9 of the principal act is amended -
By inserting in sub-section (1) after the word “ constable “ the words “, or any Commonwealth officer who is authorized in that behalf by a Minister of State,”; and
Section proposed to be amended -
Anyconstable may, without warrant, seize any articles which are forfeited or which he has reasonable grounds to believe are forfeited . . .
Upon which Senator Collings had moved, by way of amendment -
That the words “ or any Commonwealth officer who is authorized in that behalf by a Minister of State,” be left out.
– I ask for your ruling Mr. Chairman as to whether the amendment which seeks to leave out all the words proposed to be inserted is in correct form. It appears to me that the honorable senator’s purpose would be achieved by voting against the clause.
– It is competent for Senator Collings to move that the words be left out. The amendment is in order.
– I accept your ruling, and I wish to make it clear that it was not my intention to attempt to deprive Senator Collings of his opportunity to indicate his objection to the clause in the form which he has chosen to adopt. With regard to the issue that has been raised in the discussion - I refer to the tyranny which it has been suggested may be exercised under section 9 as amended by this clause - I call attention to the fact that on the 27th September, 1934, an instruction in connexion with this matter was issued to the Deputy Directors of Posts and Telegraphs in all States, in the following memorandum : -
While the enforcing of the penal provisions of the act and regulations in this matter is an unpleasant function, the department cannot avoid its obligations. The duties of inspecting officers, however, should be performed in sucha way as to protect the department from any suggestion of injustice or harshness. For this reason, great care should be exercised in the selection of Wireless Licence Inspectors, so that they may be depended upon to represent the department satisfactorily.
After a report has been made by a Wireless Licence Inspector, indicating clearly the existence of an unlicensed broadcast receiver, the normal practice will he to proceed against the person concerned by a summons and to enforce the penalty subsequently inflicted by the magistrate. There doubtless will he occasional cases where circumstances may justify the Deputy Director in waiving a prosecution. In all such cases action should be taken, of course, to ensure that the offence is not continued.
It will be recognized that these are drastic powers, consequently they should beused sparingly, in cases where the procedure is justified or where there is no alternative. If, for instance, a person who is suspected of using an unlicensed receiver refuses admission to the inspector, a search warrant should be obtained without delay in order that the set may be inspected before its removal. In this connexion, it is important to bear in mind that it is not essential to seize the receiver when a search warrant is issued. The primary object in obtaining a warrant is to gain entry with a view to securing evidence for a prosecution in the usual manner.
There will be occasions, however, when the seizure of a receiver will be justified, as for example: -
in the case of a person who refuses to give satisfactory answers to questions relating to an unlicensed receiver in his possession;
in a case where it is considered that a dealer who installed (and still owns) the unlicensed receiver should he punished, and there is not sufficient evidence to proceed against him on summons.
In some cases where equipment is seized, the offence may be such that the department will not be fully justified in ultimately retaining the receiver. That being so, the procedure in bringing it before the court should be such as to permit of discretion being exercised in the matter. …
When on application for condemnation is contemplated, all parties concerned should be served with a notice, as per example a, in the same manner as a summons, a copy, with a sworn statement as to service, being lodged with the court. The same length of time should be allowed between service and appearance, as in the case of a summons. A draft order for condemnation, as per exampleb. should be prepared in readiness for the signature of the magistrate in each case.
I have read only a portion of the memorandum. It is all in the direction of counselling great care and moderation in these proceedings.
During the discussion the seizure of wireless receiving sets for non-payment of licence-fees has been criticized by the Opposition, and this after Senator Brown gave notice of a question as to the number of such seizures which have taken place. Upon this phase the memorandum is informative -
When it is borne in mind that, whilst there are nearly 750,000 licensed listeners and that there have been 10.344 convictions of unlicensed listeners, there have only been 29 seizures (21 under the Wireless Telegraphy Act and eight underthe Crimes Act), it will be readily agreed that the powers have been used sparingly. . . Twenty-one of the 29 sets which have been seized have been returned to the owners - in some cases on payment of departmental expenses. Thus, with 10,344 convictions, we have only retained eight receivers.
That is a complete answer to the fears so frequently expressed during the debate that if the powers now possessed by a constable are extended to a Commonwealth officer they may be used with harshness or severity.
Question - That the words proposed to be left out be left out (Senator Collings’’ amendment) - put. The committee divided. ( Chairman - Senator Sampson. )
Majority . . . . 17
Question so resolved in the negative.
Clause agreed to.
Clause 4 (Disposal of forfeited articles).
– Section 9, sub-section 2, of the principal act provides -
A court of summary jurisdiction may, after such notice (if any) and to such person (if any) as it thinks fit to direct, order that any articles so brought before it bc condemned or he returned to the person from whom they were taken.
By adding the new section 9a it is proposed to wipe out the provision I have just quoted and to substitute therefor -
Apparently it is proposed to leave to the discretion of the Attorney-General the power to deal with forfeited or condemned articles, whereas under the existing law a court of summary jurisdiction may order such goods to be returned to the person from whom they had been taken. I would like to know just what is behind the proposed alteration.
– This amendment has been designed to simplify procedure. Section 9 still stands and clause 4 adds a new section. Sub-section 4 of section 9, reads -
All articles which are condemned as forfeited shall be dealt with as directed by the Attorney-General, and pending his direction may be detained in such custody as the court directs.
This provision applies to articles which have already been condemned by a court of summary jurisdiction and it empowers the Attorney-General, to direct what shall be done with such goods.
– But under the existing law a court of summary jurisdiction decides whether the goods shall be returned or not?
– No. Goods that have been forfeited become the property of the Government, and when they are condemned the court directs in what custody they shall be detained, pending an order by the AttorneyGeneral for their disposal. The memorandum I read to the committee showed that very few articles have so far come within the ambit of this subsection. The important point for honorable senators to remember is that subsection 4 of section 9 deals only with articles which have been condemned by a court of summary jurisdiction.
– I am dealing with sub-section 2 of section 9 which it is proposed to wipe out by giving the Attorney-General the last say as to whether goods should be returned or not. This power is now exercised by a court of summary jurisdiction.
– That is not so. Both under the existing law and under the proposed amendment a court of summary jurisdiction has te decide whether or not the goods are forfeited. If they are forfeited then they are the property of the Government, and under the existing act any constable may, without warrant, seize articles which are forfeited or which he has reasonable grounds to believe are forfeited under any law of the Commonwealth, and. take them before a court of summary jurisdiction. That court may, according to section 9, sub-section 2, order that any articles so brought before it be condemned or be returned to the person from whom they were taken.
– Without any reference to anybody else?
– That is so. Then, finally, in sub-section 4 of section 9, there is a direction as to what is to happen to such condemned goods. Those provisions are not abrogated by subsection 2 of the proposed new section 9a.
– The existing law says that the court may direct goods to be returned there and then to the individual from whom they had been seized.
– In that case the goods would not have been condemned so they would be returned. Two things may happen, first, the court may say that the property revests in the person from whom it was seized, and, secondly, it may say that the property is condemned. Only when the property is condemned is the Attorney-General empowered to say what shall be done with it. The honorable senator does not appear to realize that those powers are only exercised after the court has condemned the property.
– I take it that these provisions would apply to unlicensed wireless sets. If a set had been seized by officers of the Postmaster-General’s Department, and the court had held that it had been rightly seized, could the owner apply to the court for the return of that set? At that stage would it rest with the Attorney General to say whether or not the set should be returned? Suppose for instance that my wireless set had been seized. If I thought that the set had not been rightly seized, could I apply to the court for its return? And if the court said that I was not entitled to have ir back, would the final decision as to whether or not it should be returned rest with the Attorney-General?
– The honorable senator is wrong in supposing that in the circumstances he has mentioned the obligation to take further steps would rest on him. Those who seized a wireless set would have to proceed to obtain an order of the court for its condemnation. If they merely seized a set, and went no further, the owner could take proceedings against them for its return. Should the set be condemned by the court, the interest of the previous owner in it would disappear, and the disposal of the set would, by this bill, be vested in the Attorney-General.
. - Could a man whose wireless set had been seized and condemned, make application to the Attorney-General for the return of the set to him, and could the
Attorney-General return the set after the court had condemned it ?
– Yes but that would be not so much a matter of law as an exercise of the prerogative of mercy. If the ease it” one for sympathy, there is nothing in this bill to preclude the AttorneyGeneral from saying that the penalty heed not be enforced or from returning the set.
– I do not assume that this bill has been introduced to make the Crimes Act more merciful than before.
– In some respects, it has that effect.
– My criticism of the bill is based on the belief that it has been introduced to make the existing legislation more severe. Sub-section 3 of proposed new section 9a reads -
Any direction of the Attorney-General given in pursuance of this section may be given subject to such terms and conditions (if any) as the Attorney-General thinks fit.
The bill gives to the Attorney-General the right to decide whether condemned goods shall, or shall not, be returned, and in the case of goods which are returned to impose conditions. I can conceive of circumstances arising which would make those conditions unsatisfactory to the owner of the goods.
– So long as I believe that the honorable senator is seeking information, I shall continue to give that information, irrespective of the number of times I may have to rise in order to do so. This .provision is a denial of the honorable senator’s proposition that the bill has been introduced to make the Crimes Act more drastic. The provision before us is designed to make that act less drastic. Originally, the legislation provided that all articles which have been condemned as forfeited shall be dealt with as directed by the Attorney-General, and pending his direction, may be detained in such custody as the courtdirects. The proposal in this bill is that any direction of the Attorney-General may be given subject to such terms and conditions, if any, as he thinks fit. The Attorney-General might say: “You are in arrears with your payments; but as you have shown that you have been, the victim of circumstances, I shall return the wireless set to you if you undertake to pay the arrears within a certain time.” Far from being more punitive than the existing legislation, the new provision is really ameliorative in that it gives the Attorney-‘General discretionary power in cases of hardship.
– The Minister will persist in treating inquiries from this side of the chamber as though we were considering n bill to increase the powers of the PostmasterGeneral. I object to being told continually that this provision applies to wireless sets. I have in mind the conditions under which the Crimes Act is intended to operate, and I can imagine goods other than wireless sets being confiscated under the powers given to the Minister and his officers under this bill. For instance, some of the books in my library at home may be forfeited under this legislation. It only needs some inquisitorial officer to enter my home; and inspect my library, and to decide in the ignorant way in which the censorship is usually exercised that certain books of mine ought to be forfeited, and they will be condemned.
– They could not be condemned before the owner had been heard.
– With the whole of the press of the country, excepting a few Labour newspapers, poisoning the minds of the community, how could I expect fair treatment?
– These cases will bc dealt with by an impartial court.
– I do not think that the Minister can expect me to be satisfied with the statement that the Attorney-General will be interested only in wireless sets which unfortunate citizens have been unable to pay for. The powers conferred by this legislation will be used chiefly in regard to other goods. Why is the Attorney-General being empowered to impose conditions with regard to the return of goods belonging to a citizen who may be able to show that they should not have been impounded? Goods other than books may be seized. For instance, I may possess a collection of the flags of various nations, including those of the Soviet republic, Italy, or some other country repugnant to the powers that be at the moment. I do not object to a court of summary jurisdiction, which would hear the evidence, deciding what should be condemned, but why should the power be transferred to the Attorney-General ?
– I have referred to wireless sets particularly only for the purpose of instancing what may be done under this legislation. We have learned from the Minister’s statement that wireless sets have been seized by government officials, who have entered people’s homes without a warrant.
– Unless I heard him incorrectly, the Minister stated that when an officer is refused entrance, he, or the department, may apply for a warrant, and, on obtaining it, he may conduct his investigation.
– Only with a search warrant.
– Last week, I referred to property other than wireless sets and the Minister interjected that I was incorrect when I said that the officer could seize certain books. Now, in answer to Senator Collings, he has stated that it is quite possible for books to bo seized. They may relate to an unlawful association which preaches a certain political doctrine. But because a person has in his library certain books that are printed by an unlawful association, it does not follow that he agrees with the views they express. In my own library, I possess books dealing with philosophical anarchy, general strikes, communism, and the lives of Trotsky, Stalin, Lenin, Mussolini and Hitler. At some future time some of these books may be seized, because the Government has declared that a certain organization is unlawful, and that all books dealing with it are liable to be condemned. I advance this merely as a hypothetical case. The latest book by Mr. W. M. Hughes - a reasonable and logical exposition of present day circumstances - may be seized.
– Literature antagonistic to the present Government will come under the ban.
– If a book is seized by a government official, and is condemned by the court, the Attorney-
General may decide whether it shall be returned to. the owner or sold and the proceeds paid into Consolidated Revenue. The Attorney-General may be a tory and bitterly opposed to the sentiment contained in certain books. He is given wide powers. It should not be in the discretion of the Attorney-General to seize and dispose of a person’s property. I favour the insertion of a proviso that if the court, for instance, condemns a wireless set for non-payment of the licence-fee the goods shall be returned to the owner if he pays what is due to the Government. If the Minister believes in fair play, how can he justify the seizure of, say, a wireless set, valued at £40, because a person has not paid the licence-fee of 21s., and the sale of the instrument by the Government to benefit the Consolidated Revenue?
– Some goods may merit destruction altogether.
– I admit that, but this bill covers a fairly wide range of goods.
– It covers any goods that are liable to be forfeited. Books in the honorable senator’s library would bo quite safe unless he is declared to be an unlawful association, and I do not thiink that he will make himself liable for that.
– I can read into this new section the possibility of certain individuals being singled out because they are propagandists or radicals, and the Government is suspicious of their doctrines. Their goods may be seized. While not advocating that stolen or counterfeit goods should not be liable to seizure, I fear that in times of stress, perhaps in the near future, as a result of the present trouble in Europe, an innocent man, who conscientiously advocates certain principles or studies certain ideals, may be liable to have the books in his possession relating to such subjects seized.
– Not under this bill.
– The Minister said that books could be seized, and that the court would hear the defence of the owner. Nevertheless, it does seem grossly unfair that because a person has not paid the licence-fee on a wireless set, the instrument may be seized and condemned, and that it shall rest with the Attorney-
General to say whether it shall be returned to him or sold.
– Only eight out of about 700,000 have been seized.
– If only one were seized improperly a wrong would be done. Possibly we shall get some information from the Minister as to the exact number seized for the non-payment of the listener’s licence.
– The seizure of a wireless receiver may not necessarily mean its forfeiture.
– Perhaps not; but it should be possible to insert in the clause a provision making mandatory the return to the owner of any wireless receiver that has been seized, upon payment of the full amount owing for the licence, together with any expenses that may have been incurred in connexion with its seizure.
Clause agreed to.
Clause 5 -
Section seventeen of the Principal Act is amended -
by inserting, after sub-section (1.), the following sub-section: - “ (1a) Notwithstanding anything contained in the last preceding subsection, wherea person apparently of the age of seventeen years or upwards is convicted of an indictable offences against any law of the Commonwealth (whether he has been previously convicted of any offence or not), the court before which he is convicted may, if it thinks fit, having regard to the antecedents, character, associates, age, health or mental condition of the person convicted, the nature of the offence, or any special circumstances of the ease -
direct,as part of his sentence, that, on the expiration of the term of imprisonment then imposed upon him,he be detained during the Governor-General’s pleasure in a reformatory prison; or
without imposing any term of imprisonment . upon him, sentence him to be forthwith committed to a reformatory prison and to be there detained during the GovernorGeneral’s pleasure.”; and
– I move -
That the words “ apparently of the age of seventeen years or upwards “ be left out.
In my second-reading speech I pointed out that this new clause which is not exactly germane to the general provisions of tlie act bad been inserted largely as the result of opinions expressed by learned judges. I- have been supplied with the particulars of one case in which the accused was convicted of stealing part of a postal article but was released upon his entering into a bond to come up for sentence when called upon within two years of such release. Some months later he was convicted under a State law on a charge of unlawful possession and four charges of larceny. He was then brought before the court for sentence in respect of the original conviction. When imposing sentence the judge expressed the view that the accused appeared to have no intention of leading an honest life and that he would have been ordered to be detained in a reformatory prison during the Governor-General’s pleasure had the judge jurisdiction to make such an order. Under the Victorian law. the judge has jurisdiction to order an indeterminate sentence. This provision was inserted in the clause to give the court jurisdiction which at present it has not, when dealing with young offenders, though it is not necessarily^ confined to young offenders. The words “ apparently of the age of 17 years or upwards” appear in the Victorian act, on which this clause is modelled, because children’s courts have been established in that State to deal with offenders up to the age of 17 years. Under the Victorian act also, regard may be had to the antecedents, character, associates, age, health and mental condition of the person convicted. As no good purpose will be “served by retaining the words “ apparently of the age of 17 years or upwards” I ask the committee to accept the amendment to leave them out.
– I commend the Minister for having moved this amendment. The proposed new sub-section is one of the most savage provisions ever sought to be included in Commonwealth legislation. I remind the Minister that, in his secondreading speech, when answering an inquiry by Senator Brown as to whether the provisions of this clause would apply principally to youths, he answered in the affirmative, and added that the purpose was to give convicted youths a chance to reform whilst still young. Is it contended that they would have a chance to reform if -they were declared habitual criminals and ordered to be detained during the GovernorGeneral’s pleasure? The Minister can be quite sure that we on this side of the chamber will support the amendment. But it does not get rid of our objection to the clause which deals with much more important matters than the seizure of a wireless receiver for the non-payment of the licence-fee. The act, as amended by this bill, will become operative during times of great public excitement and I object to the provision in this clause empowering the prosecution to have regard to the antecedents, character and associates of persons who may be charged with offence? under this act. Let me take my own case as an illustration. If I were the victim of a prosecution under this proposed new sub-section, and if the prosecutor made inquiry into my antecedents, he would learn that my father was much the same kind of individual as myself. Then if he inquired about my associates he would discover that in times of political excitement I was associated with others in advocating the overthrow, at the ballot-box, of the present Government. That, no doubt, would be distasteful enough to ensure my detention during the GovernorGeneral’s pleasure. The prosecutor might go further and inquire into my health and if it were impaired, as it was a few months ago, he might conclude that l ought to be hurried along; while if he made an investigation of my mental condition in times of great political excitement it is almost certain that he would decide that I ought to bo completely suppressed. But I assure honorable senators that I am not joking. When the amended act becomes operative, as no doubt it will towards the end of November - the British elections are fixed for the 14th November and the application of sanctions against Italy for the lSt.li November - there will be many in active opposition to the Government’s proposals, and were I the person against whom a prosecution was launched .my antecedents and associates and perhaps also my mental condition would be suspect. Thus I might be regarded as a. menace to the
Government, and I might be detained during the Governor-General’s pleasure. I should like to hear some explanation from the Minister to justify this extraordinary enlargement of the power of the prosecution.
– I am at a loss to understand what further information I can furnish to Senator Collings, because, in my second-reading speech, 1 dealt at some length with the various provisions of the hill, and I have just made a few explanatory remarks giving reasons for the amendment. I would also correct Senator Collings when he says that the original act contained no provision for the detention of convicted persons during the Governor-General’s pleasure. Section 17, sub-section 4, provides that the law of a State ot territory relating to indeterminate sentences shall apply to any person detained in a reformatory prison, but subject to such modifications as the Governor-General thinks fit to direct. Sub-section 1 of the same section states that a person may be declared to be an habitual criminal if he has been twice convicted of an indictable offence. The provisions of this bill are somewhat wider than that sub-section. A person previously convicted may be sent to a reformatory. All that the prosecution can do is to bring the accused person before a court. The court which considers all the matters mentioned in the proposed new sub-section, decides what is to be done. I am at a loss to understand why it should be suggested that a judge should not have the power to inquire into such matters, or why the mere fact that he has that right adds to the severity of the proposed new sub-section. This provision, which is taken from the Victorian Act, is intended to be reformatory rather. than punitive. It is only .bringing the powers which the judges have said the court should possess into line with the powers they possess when dealing with offences under the State law. The proposed new subsection has no particular reference to periods of unusual excitement or anything of that nature. It is being introduced to deal only with ordinary persons who are being dealt with every day in the courts. There is no reason why it should be sug gested that it has some sort of industrial complexion. The particular case which I cited was that of a person who, in peaceful times, committed an offence, but who, when released upon ‘bond, committed other offences. Seeing that he was determined to lead a life of mime the judge imposed, beyond his jurisdiction, an indeterminate sentence. This sentence was subsequently corrected, but we wish to remedy a defect in the law and bring Commonwealth law into line with the State law, which has been found effective in this particular matter. There is nothing sinister in the proposed new sub-section. It is not aimed at the Leader of the Opposition or any of his colleagues on the Opposition bench or outside of this chamber. It is to deal with ordinary persons in ordinary times.
Amendment agreed to.
– The proposed new sub-section as amended provides that - . . where a person is convicted of an indictable offence against any law of the Commonwealth (whether he has been previously convicted of any offence or not) the court before which he is convicted may, if it thinks fit . . . direct, as part of his sentence, that, on the expiration of the term of imprisonment then imposed upon him, lie be detained during the Governor-General’s pleasure in a reformatory prison.
There is a great fear in the minds of the leaders of certain organizations in Australia that, in the event of an international or industrial upheaval, they may be subject to the Crimes Act, and be punished unduly. It is all very well for the Assistant Minister (‘Senator Brennan) to say that this measure has nothing whatever to do with periods of unusual excitement, but during a strike the leaders of certain industrial organizations may be accused of seditious utterances. Under the act certain organizations, including industrial organizations, may be declared unlawful associations, and the members of such organizations are afraid that they may be charged with an indictable offence. Oan the Assistant Minister deny that that is probable? If he can, many intelligent members oi working-class organizations throughout Australia are entirely wrong. Only a few nights ago the speakers at a huge meeting held in Brisbane expressed the fear that if this amending measure becomes law industrial leaders may bo brought before the court and placed in gaol for an indefinite period. We do not wish to prevent the Government from taking any action it considers necessary to deal with persons who preach sedition, or who attempt in any way to suborn the members of the naval, military or air forces in Australia; but the members of certain organizations who have no interest whatsoever in military, naval, or air force operations may be brought before a court and punished. Under the proposed new section a person who has not been convicted previously may be incarcerated for the remainder of his life. Under the Queensland law a convicted person must have two or three previous convictions against him before lie. can be detained in prison for an indefinite period. Under this measure a person who has not been convicted previously may be kept in gaol indefinitely.
– If found, guilty of an indictable offence.
– Guilty of only one indictable offence. During a period of international or industrial trouble a particularly enthusiastic person may make certain statements which in ordinary times would be disregarded, but under this legislation he may be detained indefinitely. During periods of comparative international and industrial peace, the most alarming statements are made in Hyde Park, London, and in the Domain in Sydney, by the representatives of certain organizations, and no action is taken.
– The honorable senator is not prepared to trust the judge.
– I am not. Instances have occurred in this country where innocent persons have been imprisoned for fifteen years. Mr. Donald Grant, a member of the New South Wales Legislative Council and also of the Sydney City Council, who was sentenced to imprisonment for fifteen years was eventually released.
– That does not say that he was not guilty.
– It was found on further inquiries being made that he was not guilty. He was supposed to serve a term of imprisonment for fifteen years, but he served only three years.
– Judge Ewing said that he was guilty.
– Further inquiries were made, and he was released. I cite this case to show that during periods of excitement judges as well as others may be biased. Yet it is proposed to give to the court power to say that a man, after serving the sentence for his original conviction, shall be kept in durance vile for an unlimited period.
– The honorable senator’s time has expired.
– This measure . proposes to empower a court to impose indeterminate sentences. We strongly object to that. This legislation is akin to fascism, which is operating to-day in Germany, for instance, where every one opposed to the policy of the Hitler administration may be consigned to an internment camp. This measure abrogates rights for which our forefathers fought, and it practically sets at naught the principles embodied in Magna Charta. In times of general unrest, political offences of various kinds may be committed, but I ask the Minister why this Government should seek the power, which it has not got under the existing act, to consign political offenders to a reformatory prison which may be anything which the administration of the time prescribes. Is not the present act sufficient to punish justly any offender in this respect?
– We cannot view this bill as an ordinary crimes measure. In fact, the title of the bill is misleading. If it were to be applied to offences commonly described as crimes, such as stealing or forgery, or other offences unfortunately common . among certain sections of the community, one would not oppose it, but members of the Opposition feel that it is primarily designed to apply to political offences and to curb expression of thought on political matters. This clause is sandwiched in between a clause dealing with seizure of property and another dealing with inciting to mutiny. Such property may include revolutionary or other literature considered by the authorities to be undesirable. Like my colleagues, I possess certain books which may come within this category ; among them is a work entitled Progress by Revolution. I once possessed a hook entitled The Right to Be Lazy, by Lafargue. As I read clause 4 such books may be seized, and if I were sentenced for having them in my possession I might be kept in gaol for an indefinite period. The clause we are now considering and the subsequent clause dealing with incitement to mutiny are ugly reminders of the significance of this measure so far as it may apply to political offences. If the measure, as its title would at first imply, were concerned only with recognized criminal offences against property or the wellbeing of the community we would not worry about it, hut supporters of the Labour party, as our opponents who read the press must he aware, have held meetings to protest against it, and have condemned it unreservedly. For the reason that its provisions can be applied to political offenders I strongly object, to this clause.
– .Who would decide that?
– The court of course; but I should not like to entrust my personal liberty to a court. In the records of the courts of this country I am a political felon and I hope that some day a Labour government will expunge from the records the names of persons convicted of political offences in wartime. During the war, in attempting to defend the freedom of the press, I was convicted-, under war-time measures, on more than a dozen occasions of certain offences, and finally I was sentenced to two months’ imprisonment without the option. Thus I am aware of what a court can do in a time of unrest, and am convinced that at such times certain judges are biased. Judges have their own way of looking at political offences. Although this clause is not so bad as other clauses of the bill I strongly object to it. There can be no doubt that its provisions are intended to be applied to political misdemeanours. Through this clause the Government intends to deal with red hot Communists, but its provisions may be used against milder persons like my colleagues and myself. For these reasons I oppose the giving of extra power to any one to keep offenders in gaol for an indefinite period.
– The Assistant Minister (Senator Brennan) mentioned that in Victoria the courts had power to sentence persons who had not .previously been convicted, for indeterminate periods. He also mentioned that certain judges had suggested that this proposed amendment should be embodied in the Commonwealth Crimes Act. Is it not a fact that in Victoria, there is a board of laymen to deal with indeterminate sentences? Furthermore, can the Assistant Minister mention any other State where a man, having served his sentence, can be detained in a reformatory prison for an indefinite period? Some of our present judges may be lineal descendants of “ Bloody Jeffreys.” The majority of them are human, but certain judges are prejudiced against political offenders just as supporters of this Government have bitter prejudices against Communists. Personally I have no prejudices of this nature, because I recall that at one stage of my career I preached certain ideas, which I then believed to be well-founded, and for the benefit of humanity; I may not hold such ideas to-day. I point out further, that because they find themselves undeservedly in poverty certain people are drawn towards such organizations as the Communist party. These people, if their own circumstances were different, and gave them an opportunity for physical and mental development, would not hold such views. If this Government showed equal enthusiasm for the elimination of the economic conditions under which many people suffer, there would not be any need for this dastardly and damnable repressive legislation. Members of the Opposition claim that indeterminate sentences are wrong. No clean-living or clean-minded Australian would agree that any court should be given the power to send a man to prison for an indeterminate period after he had served his original sentence for a particular offence. If a man is sentenced to a term of one year or five years, and .serves that time, he should bc released. If the term of imprisonment prescribed by law is not sufficient, Parliament should fix a longer period, but whatever the duration of the sentence may be, a man having served it should not be kept under lock and key simply because he may hold political opinions opposed to those of the government of the day. I have no sympathy with certain agitators as such, but I point out that thousands of decent young men, because of their political leanings, may come within the ambit of these provisions, and render themselves liable to be kept under lock and key indefinitely. What is the need for such a provision?
– Such a course would only be followed under an order by the court.
– Apparently in Victoria the court is not trusted; the offenders must go before a board composed of non-legal persons.
– The honorable senator is entirely wrong.
– My information comes from a Victorian “learned friend “ of the Assistant Minister, but whether I am right or wrong, no court should have the power to sentence a man to indefinite imprisonment. The court should not have the power to detain a man in gaol indefinitely after he has served his sentence. The position would be different if a homicidal maniac were concerned. This bill, however, has in mind, not a homicidal maniac, hut a person who holds advanced or radical political views. Probably he holds such views because, under existing social conditions, he is deprived of his fair share of even the necessaries of life. If we were to legislate to give every citizen the right to live decently there would be no need for drastic legislation of this kind, for there would then be no revolutionaries or communists. The Labour party is opposed to the clause, and it hopes that the committee will reject it.
– I am not convinced by the arguments of the Opposition. Senators J. V. MacDonald and Brown have seized on this clause to attack the judges of our courts. I imagine that the notorious Judge Jeffreys has been introduced into this discussion only with the object of prejudicing the minds of honorable senators, since there is no evidence that any Australian judge of a similar disposition has ever delivered a judgment under the Crimes Act. If there is one thing that Australian judges have proved it is that in times of political excitement they can remain calm and even-tempered, notwithstanding that the rest of the community, or at least sections of it, are greatly excited.
– There was not much calm and judicial atmosphere in our courtsbetween 1914 and 1918.
– The more excited certain sections of the community become, the greater the need for penalties which may act as a deterrent.
On examining this clause I cannot see the slightest justification for the diatribes to which we have listened to-day. Unlike the section which it amends, it applies not. to a person who has been convicted three times and may be declared an habitual criminal, but to a person who has been convicted of an indictable offence whether or not he has been previously convicted of an offence. In such cases, the clause provides that - . . the court before which ho is convicted may, if it thinks fit, having regard to the antecedents, character, age, health or mental condition of the person convicted, the nature of the offence, or any special circumstances of the case -
– Does the honorable senatorbelieve in that provision?
– Certainly I do. Is a man who is not sane to be allowed to roam about to the danger of the community.
– There are laws to deal with such persons.
– There may be in the community persons who, although not insane, are mentally weak and easily led astray by bad associates, and whose best interests would be served by detention in a reformatory prison. Paragraph b of proposed new sub-section 1a provides an alternative in that the court may if it thinks fit - without imposing any term of imprisonment upon him, sentence him to be forthwith committed to a reformatory prison and to be detained during the Governor-General’s pleasure.
– “ Let him that is without sin cast the first stone “.
– When we reflect on the drastic action taken by the governments of some countries to deal with persons who do not agree with them, we must conclude that the provisions of this bill are most reasonable. Our judges will see that this power is exercised reasonably, and in the interests, not only of the community as a whole, but also of the offender himself. The outcry of the Opposition in relation to the judges of our courts has nothing to do with the clause which, in my opinion, is most moderate-
– I cannot imagine that Senator Dein is so ignorant as not to know something of the proceedings in the courts of this land. An ounce of experience is worth a ton of theory, and, therefore, as one who for many years attended various courts in a journalistic capacity, I believe that I have some knowledge of the working of our judicial system. We have to consider this bill in the light of the conditions existing in times of great excitement. During the war I was the editor of a newspaper against which a charge of constructive libel was laid. As I did not know the plaintiff, who was a returned soldier, I was innocent of any libellous intent. Nevertheless, the charge was laid. The directors of the newspaper sought the advice of a leading barrister, who is now a -judge of an Australian court - one of Australia’s ablest men, and one politically opposed to Labour. When he had studied the case, the barrister said that it was undoubtedly one of blackmail. He then said that, as the times were abnormal, it would be useless to say in court what was known of the man, for by so doing the defendants would merely be adding libel to libel. He advised the directors to settle the case out of court. His advice was accepted, because the directors knew that the jury, as well as the judge, would have been biased against the newspaper. That is an instance of ;in eminent barrister who is now a judge advising his clients not to seek justice in the courts. A person charged with a political crime could not expect justice in times of great excitement. This bill deals, not with such offences as theft from the person, or burglary, but with political offences. Accused persons will not receive much consideration from judges who are not in favour of workingclass theories.
– There is no suggestion of political offences in the clause.
– It is not right to empower the court to impose an indeterminate sentence on a man merely because of some political offence which he is supposed to have committed.
– What does the honorable senator mean by a political offence ?
– The next clause, clause 6, deals with attempts to incite to mutiny, which, in certain cases, could have a political complexion. This Parliament is faced with a serious duty when it sets out to say what constitutes a crime and what the punishment for that crime shall be. We frequently hear of magistrates and judges expressing regret that they must administer the law as they find it. We are now considering a new law, and we should not be guided by prejudice. Australia has got along very well since 17S8 without legislation of this kind. Not. even during the greatest crisis in the nation’s history, between 1914 and 1918, was such legislation thought necessary; but now, in times of peace, drastic legislation is introduced in order to deal with political offenders.
– In this case, the judge is entitled to exercise his own discretion, because the” proposed new section says “ the court . . . may, if its thinks fit . . .” The law deliberately gives the court the power to do certain things which it thinks desirable.
– During my long experience of the law, I have known judges and magistrates frequently to express regret that they could not avoid administering the strict letter of the statutes. They realized that the possibility of. an appeal always existed. The present provision goes from bad to worse. The Crimes Act is already formidable, but the Government now seeks to curtail freedom of thought and the freedom of the press. Parliament should not give a court, which, after all, is composed of men who are liable to be influenced by passions and prejudices, discretionary power .to detain a person in gaol indefinitely for a political misdemeanour.
– The statement has been made that a man may be sent to gaol on an indeterminate sentence, whether previously convicted or not. That is not accurate. The sections under consideration deal with the case of a man who has been convicted.
– The Assistant Minister’s words were, “ Whether he had been previously convicted of any offence or not “.
– Before a person can have imposed on him an indeterminate sentence he must have been convicted of an. indictable offence against a law of the Commonwealth. Senator Brown said that in Victoria a board of laymen inquires into certain cases before trial.
– That was in regard to indeterminate sentences.
– There is an Indeterminate Sentences Board in Western Australia.
– The Victorian board consists of three members, one of whom, is a well-known humanitarian, Mr. Samuel Mauger. Prisoners are kept under observation to ascertain whether the reformatory treatment is having n good effect on them. When satisfied with their conduct, the board may recommend their release. The prisoners may leave gaol at the expiration of the term fixed by the judge, or they may be detained for a further period and kept under observation. It has been said that this Senate has no right to endow a judge with the power to keep a man “ indefinitely in durance vile “. We empower a judge to impose sentences according to his discretion, but after the sentence has expired, the judge’s power ceases. Senator Collings suggested that we should not grant to a judge the. power to order a person to be detained in custody after he has served his sentence. If Senator Collings will study this section, he will see that part of the sentence is that the prisoner shall be detained in a reformatory during the pleasure of the GovernorGeneral.
– The original act does not give that power.
– Is the prisoner any better off because the judge sentences him to five years’ imprisonment, and thereafter to be detained in a reformatory during the Governor-General’s pleasure, than if he were merely detained during the Governor-General’s pleasure, without a fixed sentence having been imposed? I have stressed that the bill is ameliorative, and docs not increase the harshness of the original act. Senator J. V. MacDonald mentioned that the Senate had a serious duty in defining what is a crime. Are we to shirk our duty because it is serious? Is not one of the first duties of civilization to deal with crime and the maintenance of order ? The Government has approached this matter with a full realization of its responsibility, and does not treat it in a spirit of levity.
– The Labour party is not likely to forget that the Crimes Act itself originated in the War Precautions Act during the stirring times of 1914. The sections of which we complain were passed during the war. I direct attention to the Minister’s remarks in reference to clause 5 in his second-reading speech, and I ask him how he can reconcile his statements then with his replies to our inquiries today. He said -
Clause 5 deals with indeterminate sentences. This provision is, perhaps, a little alien to the general purpose of the measure; but it is inserted because certain difficul ties in regard to indeterminate sentences have arisen as between the Commonwealth and some of thu States. Under the Commonwealth law, before a person can be given an indeterminate sentence, he must previously have been convicted nf serious offences on at least two occasion.”. Cases have arisen in which the judges have thought that it would have been desirable to impose an indeterminate sentence, even though there had been no previous conviction of the person concerned. Provision to that effect is embodied in the Victorian law; and it is now inserted in the Commonwealth law on the suggestion of the judges.
In other words, because the act is not savage enough, we are asked to bring it into line with the laws of two other States, whose crimes legislation is the most severe in the Commonwealth. Th. Labour party will avail itself of its privilege and responsibility to vote against the clause. That is all we can do.
– I am satisfied that this clause should be amended, and I believe that it will be recast in the House of Representatives where honorable members may not be so ready to support the Government. I am gratified to know that the Minister has already seen that several points in the bill require amendment.
– But not this particular one.
Question - That the clause as amended be agreed to - put. The committee divided. (Chairman - Senator Sampson.)
Majority . . 15
Question so resolved in the affirmative.
Clause, as amended, agreed to.
Clause 6 -
Section twenty-five of the Principal Act is n mended -
by inserting in sub-section (1.). after the word “ Penalty:”, the words “ One thousand pounds or “ ;
by inserting, after sub-section (1.), the following sub-section: - “ (1a) Any person who publishes any book, periodical, pamphlet, handbill, poster or newspaper containing any matter of such a nature as to, or as to be likely to -
seduce any person serving in the King’s Forces from” his duty and allegiance; or shall be guilty of an indictable offence.
Penalty: Five hundred pounds or imprisonment for two years.”; and Section proposed to be amended -
1 ) any person who knowingly attempts -
to seduce ann person serving in the King’s forces from his duty and allegiance . . . shall be guilty ofan indictable offence.
– I move -
That paragraph (a) be left out with a view to insert in lieu thereof the following paragraph - (a) by adding at the end of subsection ( 1 ) the words “ ; or in the case of a corporation, One thousand pounds.”
Under sub-section 1 of section 25, any person who knowingly attempts to seduce any person in the King’s forces from his duty and allegiance, or incites him to commit an act of mutiny or any traitorous or mutinous act, or to make or endeavour to make a mutinous assembly, may be imprisoned for life. I understand that the Ministry desires to have included provision for penalties against corporate bodies which may be found guilty of indictable offences. My amendment does that, the penalty being £1,000. Senator Collings has pointed out that this provision in the act has never been operated. Perhaps theexplanation is that the risk of imprisonment for life has proved an effective deterrent to persons who otherwise might become mischievous.
– The Government will accept the amendment.
– We, on this side, have no desire whatever to make easy the path for any person or persons who knowingly attempts to seduce persons serving in the defence forces from their duty and allegiance. We intend to be very careful indeed so that we may not be misunderstood, though I have no doubt whatever that we shall be misrepresented. Senator Allan MacDonald’s amendment seeks to impose a penalty on corporate bodies. We shall not oppose it.
Amendment agreed to.
– I move -
That the words “ Five hundred pounds or “ proposed new sub-section (1a) be left out, with a view to insert after the word “ years “ the words, “ or in the case of a corporation, five hundred pounds.”
The intention is to make the penalty imprisonment for two years in the case of any person who publishes any book, periodical, pamphlet, handbill, or newspaper containing matter of such a nature as to, or as to be likely to seduce any person serving in the Kings’s forces from his duty or allegiance or to commit an act of mutiny, and in the case of a corporation, to make the penalty five hundred pounds.
– The Government will accept the amendment.
– If the amendment be agreed to a publisher or a newspaper proprietor found guilty under this provision will be imprisoned for two years. The suggested amendment has to be read in conjunction with proposed new subsection Ia, which provides that -
Any person who publishes any book, periodical, pamphlet, handbill, poster or newspaper containing any matter of such a nature as to, or as to be likely to - [a) seduce any person serving in the King’s forces from his duty . . .
Wc are not likely to agree to such a penalty being imposed while the words “ or as to be likely to “ remain in the bill. I presume that a publisher has to make up his mind whether words used are “ likely to “ seduce any person serving in the King’s forces. That is a very difficult matter to determine. “Who is to decide whether words used are likely to seduce any person?
– A jury will decide that.
– As I have already said in connexion, with other clauses, these provisions will operate only in times of public excitement, and on such occasions judges or juries cannot be expected to give unbiased verdicts. We do not believe that any one serving in His Majesty’s Forces should be seduced from his duty, but to place on the publisher of any book, periodical, pamphlet, handbill, poster or newspaper the onus of showing that certain words are or are not “likely” to seduce any person, would he to go too far. In the event of a big industrial upheaval the militia may be called out.
– That cannot be done under the Defence Act.
– We know that at periods of excitement it is an easy matter to pass amending legislation to make that possible. Will the Assistant Minister explain this provision?
– The whole section proposed to be amended .deals with a very important subject, including incit ing to mutiny. Notwithstanding the serious statements made concerning the Crimes Act the prosecutions under it - the most drastic portions of it have been in force since 1926 - have been remarkably few. The argument of the Leader of the Opposition goes to the root of the administration of criminal law. In connexion with every crime there must be” a time when certain matters have to be proved in accordance with the law. It may be left to a judge who, after hearing both sides, accepts the statement of one side as having been proved. It is quite true that, in cases of this kind, we can have only fallible human beings as material, and a judge may be wrong in his finding on facts. All judges make an honest endeavour to give a just decision. The clause relates to an indictable offence., which means that persons charged shall be tried before a jury. The jury is directed by the judge, and the meaning of the words “ as to be likely to” have to be interpreted by him. He has to determine whether they are of such a nature to seduce any person serving in the King’s forces from his duty and allegiance, or to incite any person serving in such forces to commit an act of mutiny or any traitorous or mutinous act, or incite any person to make or endeavour to make a mutinous assembly. It is quite true that there may be difficulties in coming to a decision on such a matter; but, if there should be, the invariable rule of law is that the accused person shall be given the benefit of the doubt. In such cases a direction is given to the jury by the judge. After all these precautions have been taken a jury may arrive at an erroneous conclusion. They must act on the evidence before them, and they must be satisfied beyond reasonable doubt that the words used are of such a nature as to or as to be likely to incite to mutiny. If the court were so satisfied, the accused person would be found guilty. The time to adopt precautionary measures is in comparatively, peaceful times. This proposed amendment is not likely to apply to any person to whom it should not.be applied.
– I understood Senator Brown to say that the members of the Opposition, do not wish to protect the suborner or the sed] tiona s,t. I am loath to believe that the Leader of the Opposition (Senator Collings) and those with whom he is associated will oppose this amendment, which is aimed at corporations with which the members of his party do not wish to be associated. Members of the Opposition have already agreed to a similar amendment, which provides that the penalty to be imposed on the individual shall be imprisonment without the option of a fine. As a corporation cannot be incarcerated, I am suggesting that the penalty shall be a monetary one. The amendment provides a deterrent, and I trust that the committee will accept it.
.- I do not feel disposed to support the amendment. Judges and juries are not infallible, and it seems to me that a judge should have discretionary powers. If the amendment be carried, that discretionary power will be removed.
– The proposed fine in the case of a corporation is the maximum.
– There is no provision for the imposition of a fine upon individuals, although I can imagine eases where a substantial fine would prove a sufficient deterrent. It should be left with the judge to determine whether a fine should be imposed or imprisonment ordered. I suggest that the honorable senator should withdraw his amendment, and leave the proposed new section in its present form. because, if adopted, an already drastic measure will be made even more severe. Under the bill a3 drafted a fine could be imposed; but it is now proposed that the only penalty applicable to an individual shall be imprisonment for two years. The honorable senator desires that the pecuniary penalty shall apply only to a corporate body. As this would make the law unnecessarily drastic, I suggest that the Minister should not accept the amendment. After all, the determination of the penalty will rest with the judge-
– It is proposed by Senator Allan MacDonald that if a person is convicted of having, whether knowingly or not, published something likely to seduce any person serving in the King’s Forces from his duty and allegiance, he shall be sentenced to imprisonment for two years without the option of a fine. That is too drastic and I shall oppose the amendment.
– I am sorry that at first glance I did not realize that the first amendment moved by Senator Allan MacDonald differed in principle from this amendment. I agree with Senator Leckie that the proposal now before the Committee will take away from the court the option of imposing a pecuniary penalty on the offender. This being so, we should not depart from the principle contained in the hill that the court be given a discretion in fixing the penalty. The proposed amendment of sub-section (1) was intended to cover the case of a corporation which could not be imprisoned, and the only penalty which could be imposed on an individual was imprisonment for life. In this case, the prescription of a pecuniary penalty for a corporation only would rob an individual accused of the benefit of the court’s discretion to sentence him to imprisonment or impose upon him a fine. In those circumstances, I suggest that the honorable senator should withdraw his amendment.
– I am not clear as to the meaning of the phrase “ or as to be likely to “. The Assistant Minister (Senator Brennan) stated that if a doubt exists the person before the court is given the benefit of that doubt. According to my interpretation of this phrase the court will be deprived of the opportunity to extend the benefit of the doubt to the accused. If the publication with which the court is concerned is without a doubt seditious, the person is guilty and sentenced accordingly; if, without a doubt, it is not seditious that is the end of the case and the person before the court is discharged. But where a” doubt exists that phrase will militate against the accused rather than in his favour.
– The Opposition definitely opposes this clause.
-The honorable senator is notprepared to punish those who incitetomutiny?
– I have said previously that we are opposed to people who try deliberately to create mutiny in the King’s Forces. There is a vast difference between section 25 of the principal act and this clause which seeks to amend that section. The existing section deals witha man who incites to mutiny ; the proposed amendment deals with a man who publishes a book, periodical, pamphlet, handbill, poster or newspaper containing any matter “ of such a nature as to, oras to be likely to “ seduce a person serving in the King’s Forces from his duty and allegiance. In Funk and Wagnall’s Dictionary the meaning of “ likely “ is stated thus -
Reasonably expected; showing a tendency; liable; apt; (as an adverb)in all probability; probably; generally used with most, quite, very, &c. ; likely refers to acontingent event regarded as very probable, and usually, though not always, favorable.
Section . 25 includes the word “knowingly “,but the bill leaves out that word, and adds the words “ likely to “. This change, as Senator Dein has pointed out, is very wide in its scope. The dictionary meaning of “seduce” is -
To draw aside from duty; rectitude, obligation or truth by misrepresentation, flattery, promises, bribes or otherwise; draw into error or evil; entice from the right; lead astray; corrupt.
When the words “likely to” and “ seduce “ are used together, they admit of a very broad interpretation, and, I submit, a very dangerous interpretation in time of public excitement. At such a time the meaning of these words may be interpreted so broadly that a perfectly earnest and innocent citizen who attempts to tell, for instance, the true history of the war which may result from the imposition of sanctions against Italy, may be penalized under this clause. Let us postulate, for instance, a ease which might arise out of the present international situation. The former Minister for Health and Repatriation (Mr. Hughes) has just published a book in which he states that the imposition of sanctionswill lead to war. For having made that statement he has been driven out of office. Negotiations have been in progress for the last 20 or 30 years be tween France, Italy and ‘Great Britain for the economic partition of Abyssinia. Suppose that as the result of the imposition of sanctions, war between Italy and Great Britain is declared. Not”knowingly” a person may publish the story of thesenegotiations, and, it may be alleged by theGoverwnent,that it has hadthe effect of seducing or being “ likelyto “ seduce certain persons from theirduty to the King. Upon the prosecutor who would be the representative of the Government in the court would fall the dutyof proving to the judge that the words which the accused probably unknowingly published were “ likely to “ seduce a person from his service to the King. The prosecutormightargue that the words would very likely have this effectupon soldiers whoread thearticle. It wouldbe an entirely differentmatter if a publisher directly asked a man deliberately to throw aside his allegiance to the King.
– They never do it directly, because they know the law would catch them immediately; they are far more subtle than that.
– The danger arises here that a supporter of the Labour movement who, unlike certain revolutionaries has no desire to cause mutiny im anyof His Majesty’s forces, might deliver a speech and immediately be arrested and arraigned before the court. He would be told by the court that his words were “likely to” at some time in the future - just when, nobody knows - “seduce “ a person from his duty to the King. I take it that the term “ publishes “ would apply to verbal as wellas to written or printed expressions. We claim that the clause is so broad that it is possible for an injustice tobe done to a perfectly innocent man.
[5.50]. - I assure honorable senators that this clause has not been drafted in its present form without good reason. It is based, not on any theory, but on an actual happening - an unsuccessful prosecution under section 25 of the principal act which reads -
Any person who knowingly attempts -
About two years ago there was a deliberate attempt to stir up disaffection in the Royal Australian Navy. Some of the ships of the Navy were at Port Melbourne and a week-end newspaper, printed in Melbourne, published a statement to the effect that there had been a mutiny on other ships of thu Royal Australian Navy in Sydney, with the object of compelling the Government and the Naval Board to rectify certain alleged grievances on the part of the men. Not only was that statement published, but also special steps were taken to circulate it among the men on board the vessels at Port Melbourne. A prosecution was laid under section 25 of the act. As I was Minister for Defence at the time, I know all the circumstances. The defence did not deny the publication of the statement or that steps hadbeen taken to circulate it with the object of causing a mutiny, but relied wholly on the statement that the publisher did not know what had been published, and that therefore he did not “knowingly” attempt to seduce anyperson serving in the King’s Force from his duty and allegiance, or to incite any such person to commit an act of mutiny. That defence was successful. Because of that experience, and because since that time other attempts of a similar nature have been made to seduce men serving in the Royal Australian Navy, this clause has been framed as it now stands. Had the law read as this bill reads, “ Any person who publishes any book, periodical, pamphlet, handbill, poster, ornewspaper containing any matter of such a nature as to, or as to be likely to “ do certain things, no judge would have had any hesitation in saying that the publication was of such a nature as to be likely to cause disaffection. More recently a similar case occurred in Western Australia, but there also it would have been most difficult to show that the publisher knew what had appeared over his name. There was also the instance mentioned by Senator Payne in which bundles of typewritten matter, published by the Friends of the Soviet Union, were circulated on ships belonging to the Royal Australian Navy when at Burnie, Tasmania. In each of these instances the Government was advised by the Crown Law authorities that a conviction under section 25 of the principal act was unlikely, notwithstanding that witnesses were prepared to swear to what had taken place. Because of these experiences, the Government now seeks to amend the law in order that this country may be protected against attacks from within. All honorable senators who wish to protect our naval, military and air forces against attempts to sap their loyalty should vote for the clause.
– The explanation of the Leader of the Senate (Senator Pearce) does not touch the question raised by the Opposition. Section 25 of the existing act begins “ Any person who knowingly attempts”-
– Under that provision an accused person has only to say that he does not know of the act which he is charged with having committed.
SenatorCOLLINGS. - The proposal now is to substitute for section 25 a new section which begins “ Any person who publishes any book, periodical, pamphlet, handbill, poster, or newspaper containing any matter of such a nature as to, or as to be likely to . . . “ The Opposition objects to the words “ or as to be likely to” because it places too great a power in the hands of the Government.
– I appreciate the point made by the Leader of the Senate (Senator Pearce) because I remember the circumstances surrounding the case to which he referred. I agree that the word “knowingly”provided a cover behind which an unscrupulous person could hide, and therefore the omission of that word has my approval. I would like, however, to have the Minister’s assurance that in regard to the words “or as to be likely to “ an accused person will receive the benefit of the doubt, as is usual in court proceedings.
– Speaking as a lawyer who has had a good deal of experience in the courts, I assure Senator Dein that if a charge were laid under this provision and the words “ or as to be likely to “ were not included, it would be necessary to produce in the court some person who had actually’ been seduced from his allegiance, otherwise the prosecution would probably fail. The words to which exception is taken by the Opposition are not new in criminal law. In his summing up a judge would probably ask the jury to consider whether matter published in a book, periodical, pamphlet, handbill, poster, or newspaper would, in its opinion, be likely to seduce any person serving in the King’s Forces from his duty and allegiance, or incite to any traitorous or mutinous act, and to bring in a verdict accordingly.
– One cannot deal with the penalty without dealing also with the act to which it applies. From what the Leader of the Senate (Senator Pearce) has told us, I am convinced that an amendment of the law in the manner now proposed is desirable. The only point on which I am at all in agreement with Senator Collings is in connexion with his criticism of the principal act, which contains the words, “Any person who knowingly attempts “. If a person does not do an action knowingly, he does not attempt it. One cannot attempt a thing unless one has the intention. There are two phases of this proposed new sub-section : First, “ of such a nature as to “, and secondly “ as to be likely to “. The first stage is the effect actually produced - the act of mutiny. But it may easily be, and is much more likely to be, that there is an intention to produce the effect; in other words that the effect is likely to follow certain actions or utterances. When a seditious document has been distributed is the Government to defer action against the publisher until it can prove that the document has had the effect that it is calculated and intended to cause? In my opinion, that would be ridiculous. Weeks or even months might elapse before the proceedings could be completed, and all the while these documents calculated and intended and likely to produce a certain effect would be in circulation. If in the opinion of the court, the publication is of this seditious nature, action should be permissible even before there is a definite result. The Opposition may object that this is making an offence of the intention rather than the effect of an action. Section 25 (1) refers to a person who “ knowingly attempts “, and does not contemplate only the result. Therefore the law already provides that a person who attempts to commit such acts shall be punishable, whether the effect is produced or not. The same principle is being applied in the proposed new sub-section.
– The words “ as to seduce “ are not in the past tense.
– I have taken the two stages. The words “ of such a nature as to seduce “ relate to the thing that has actually happened ; the words “ as to be likely to “ relate to the probability of it happening in the future.
Dairying Industry in Western Australia. ‘
Motion (by Senator Sir George Pearce) proposed -
That the Senate do now adjourn.
– In reading a Parliamentary report during the week-end I was surprised to see some remarks by my colleague, Senator Allan MacDonald, concerning the Primary Producers Association of Western Australia which I cannot permit to pass unchallenged. The remarks were made by the honorable senator on the 24th ultimo, on the motion for the adjournment of the House, but Ilansard was not issued until the 2nd November and I was not in the chamber when this reference to the Primary Producers Association was made. In referring to the proposal of the Government to disband the Australian Dairy Council the honorable senator reflected rather severely on the status of the Primary Producers Association of Western Australia.
– I was not severe.
– I consider that the honorable senator’s remarks were severe, although, no doubt, he has that friendly feeling for the organization which it has for him. The Primary Producers Association is a body which represents the organized producers of Western Australia and in my opinion is the one body which is entirely qualified to speak for the dairy producers of that State. Senator Allan MacDonald, on page 1060 of Hansard is reported to have said; -
The Primary Producers Association of Western Australia is recognized as a political body being, in fact, the organization of the Country party. I point out that the southwest portion of the State is the main sphere of the dairying industry of Western Australia. To indicate the strength, or lack of strength, of that association in the dairying industry asan organisation of the Country party, I point out that the south-west portionof the State, which is the main sphere of the dairying industry in Western Australia, consists ofsix electorates for the Legislative Assembly and one province for the Legislative Council, yet noneof these seats is held by the Country party. Three of the seats in the Assembly are held by Nationalists and three bymembers of the Labour party, whilst all three seats in the Council are held by Nationalists. After Senator Hardy had read a lettergram from the Primary Producers Association,I interjected that that organisation did not represent the dairying industry in Western Australia, and that anybody could have sent such a message.
That statement, that the Primary Producers’ Association docs not represent the dairying industry of Western Australia shows a complete lack of knowledge of the real status of that association as a producers’ industrial organization representing the main rural and primary industries of that State. The association is an incorporate body divided into four sections, only one of which is political. There arc a great many industrial members of the association, bona fide producers, who do not belong to the political side of the movement. The purely producers’ side of the association is’ divided into three sections, namely, wheat, sheep and wool, and dairying, each with its separate executive.
– I would say that Primary Producers Association docs represent the. wheat-growers, but not those engaged in dairying. There is another body more competent than the Primary Producers Association.
– On that point I am at variance with the honorable senator. The Primary Producers Association, through its dairying section represents the dairy producers completely. In the dairying districts of the State a great many of the members of the dairying section of the association do not belong to the political branch, and the president of the dairying; section is Mr.Ross McLarty, M.L.A., one of tho three Nationalist members of parliamentto whom Senator Allan MacDonald referred. The fact that the Country party does not hold some southwestern seats is largely because of the strength of the coal-miners, timberworkers and town residents of the southwest, and also because of the efficient and popular sitting Nationalist members who represent that portion of the State, one of whom, Mr. McLarty, is the very head, tho president of the dairying section of the Primary Producers Association. Another first-class parliamentarian is the Honorable L. Craig, M.L.C., who was a Country party candidate for the Bunbury seat, at the 1927 election.
– Mr. Craig was an endorsed Nationalist and was never a Country party candidate.
– Mr. Craig received the support of the Primary Producers Association organization in his district, and the West Australian of the 23rd March, 1927, reports his address as that of a Country party candidate for Bunbury. In any case his sympathies are with the producers. On various occasions, when they have supported Country party candidates the dairymen and other producers have been outvoted by opposing interests in those districts. The honorable senator did not refer to the strength of the dairying industry in the great southern districts where there are a number of uptodate butter factories, one. at Narrogin, two at Katanning, and another at Denmark. In that part of the State, with the exception of the Port of Albany, which returned a Labour member, the whole of the political representation in the Parliament of Western Australia lies with the Country party, the political side of the Primary Producers Association. The dairying industry is constantly growing in those districts, where five out of six of the Legislative Assembly seats and the three upper house seats are held by tho Country party. I emphasize that there is no other body in Western Australia so qualified to speak for the dairy producers as is the dairying section of the Primary Producers Association. I hope that the Government will at all times accept the views of that body as being the voice of the organized dairy producers of Western Australia.The views of the Primary Producers Association have been conveyed to the Minister for Commerce (Dr. Earle Page) in the following terms by Mr.H. J. Prater, the general secretary: -
It has been reported here that representatives from this State, who do not speak from the producers’ point of view, are opposed to your suggestion for the co-ordination of the activities of the Australian Dairy Produce Export Board and the Australian Dairy Council. Our organization is the only one which can claim to be representative of the producers’ sideof the dairying industry, and it definitely supports your proposal under which representation on the board would be on a more equitable basis. We trust that, notwithstanding objections raised by other interests, you will proceed with the suggested legislation.
I endorse Mr. Prater’s statement in its entirety as being the views of the organized dairymen of Western Australia and ask the Government to accept it as such.
Question resolved in the affirmative.
Senate adjourned at6.20 p.m.
Cite as: Australia, Senate, Debates, 7 November 1935, viewed 22 October 2017, <http://historichansard.net/senate/1935/19351107_senate_14_147/>.