14th Parliament · 1st Session
The President (Senator the Hon. P. J. Lynch) took the chair at 3 p.m., and read prayers.
[3.1]. - I desire to inform honorable senators that the following papers have been laid on the table of the Parliamentary Library : -
The following papers were pre sented : -
Australian Imperial Force Canteens Funds Act - Fifteenth Annual Report, for the year ended 30th June, 1935.
Commonwealth Public Service Act - Appointment - Department of Health - C.D. Parker.
Defence Act - Regulations amended - Statutory Rules 1935, No. 109.
Nationality Act - Regulations amendedStatutory Rules 1935, No. 114.
Naval Defence Act - Regulations amended - Statutory Rules 1935, No. 110.
Sales Tax Assessment Act - Regulations amended - Statutory Rules 1935, No. 111.
Superannuation Act - Thirteenth Annual Report for the year ended 30th June, 1935.
Customs Act - Regulations amended - Statutory Rules 1935, No. 113- No. 115.
Northern Australia Survey Act - Report of the Committee appointed to direct and control the Aerial, Geological and Geophysical Survey of Northern Australia, for the period ended 30th June, 1935.
Navigation Act - Regulations amended, &c. -Statutory Rules 1935, No. 107- No. 108 -No. 112.
Wheat Bounty Act - Regulations amended - Statutory Rules 1935, No. 101.
Is it a fact that the iron ore deposit at Yampi Sound, KoolanIsland, hasbeen sold to the Britishfirm of Connolly and Brasserts Limited?
Is it a fact that a Japanese mining company (the Nippon Mining Company) has been admitted to the deal, and will now be in a position to supply Japan with iron ore in unlimited quantities?
Was the sale made by the Government of Western Australia or by the Commonwealth Government?
Does the Minister consider the sale a safe policy for Australia in view of possible international complications which are said to be likely in the Pacific?
In reply, I indicated that the matter did not come within the province of the Commonwealth Government, but that Iwould endeavour to obtain from the Government ofWestern Australia the information requested. The following reply has now been received from the Acting Premier of “Western Australia: -
It is not a fact that this deposit has been sold, but the leases are under aption to the British firm of Brasserts Limited, for whom, I understand, Sir James Connolly is acting as agent. Mineral lands are leased for a term of 21 years, with the right of renewal for a further term of 21 years, at a lease rental of 5s. an acre per annum, at subject to labour conditions.
I have no knowledge that the Nippon Mining Company is concerned in the deal, although I believe, if the option is exercised, it is the intention of Brasserts to sell iron ore tothe Japanese. In this you will understand that, in times of peace, the sale of iron ore to the Japanese, or any other nations, is just as unrestricted as the sale of wool, wheat, beef, mutton , or any other commodity.
The reply to No. 1 answers this in the negative.
I am not informed that international complications in the Pacific are likely. Iron ure, when produced, may be sold in the open market. At the present moment all I know is that we have this huge iron ore deposit at Yampi, which is lying idle, and that Brasserts Limited have obtained an option over the leases from the present holder, a Mr. Buckley. If the option is exercised and the works established for the production of the ore, it will not be permissible for the company to employ Japanese labour. If they comply with the labour conditions and the mining laws of the State, and are a British company, I know of no means whereby we can impose restriction on the sale of the output.
Sydney Symphony Orchestra - Fremantle “ B “ Class Station
– On the 14th November, Senator Arkins asked the following questions, upon notice : -
I am now able to state, for the information of the honorable senator, that, under the Australian Broadcasting Commission Act, it is the responsibility of the commission to engage such officers and servants as it thinks necessary, and it is obvious that this responsibility can only be accepted by the commission when it is free to exercise its discretion as to the suitability of any person to undertake a specific duty or responsibility. In the case under notice, the commission has acted in what it believes to be the best interests of the broadcasting service for which it is responsible, and it would be inimical to the proper carrying out of the commission’s functions to interfere in what is obviously an aspect of every-day management.
– Is it the intention of the Postmaster-General to refuse to give information to the Senate regarding the administration by the Australian Broadcasting Commission if the information asked for is considered to relate to purely business transactions of the commission? Will the Minister make available to the Senate the report for which I asked previously, namely, that made by Sir Hamilton Harty after he left Australia?
– On more than one occasion I have indicated the attitude of the Government concerning the duties and responsibilities of the Broadcasting Commission. I repeat that that body has been entrusted by Parliament with the administration of broadcasting; the responsibility for such management rests entirelywith the commission. I, as Postmaster-General, do not intend to interfere in any way with the commission in that respect. I shall look into the latter part of the honorable senator’s question, and when it can be done with public advantage, reports will be made available to the Senate. I do not propose to allow myself, as Postmaster-General, to be made general manager of the Broadcasting Commission; the management of broadcasting is entirely the function of the commission, whose duty is to discharge that function to the satisfaction of the Government and the Parliament.
Senator ALLAN MacDONALD.Will the Postmaster General inquire into the difficulties -which a number of Fre- mantle citizens are experiencing in connexion with an application for a licence for a “ B “ class broadcasting station at Fremantle? Will he kindly expedite consideration of this application, and the allotment of a wave length and other details involved in the application?
– Until to-day, I was not aware that such an application had been made, but I shall have its consideration expedited. As to the fate of the application, however, I can give no undertaking to the honorable senator.
– On the 15th November, 1935, Senator Cooper asked the Minister representing the Minister for Repatriation the following questions, upon notice: -
The Minister for Repatriation has sup plied the following answers: -
Retirement of Mr. C. J. Cerutty
asked the Minister representing the Treasurer, upon notice -
How much pension or superannuation will the Auditor-General, Mr. C. J. Cerutty, receive on his retirement from the Commonwealth Public Service?
– The Treasurer has supplied the following answer : -
Mr. Cerutty on retirement will receive a pension of ?416 per annum under the Commonwealth superannuation scheme to which he has been a contributor since its inception.
asked the Minister representing the Minister for Trade and Customs, upon notice -
– The Minister for Trade and Customs has supplied the following answer : - 1 and 2.No trade treaties have been concluded by Sir Henry Gullett.
Bill received from the House of Representatives, and (on motion by Senator Brennan) read a first time.
Bill returned from the House of Representatives with a message intimating that it had agreed to amendment No. 2 made by the Senate and to amendment No. 1 with amendments.
In committee (Consideration of House of Representatives’ message) :
Senate’s amendmentNo. 1 -
Leave out sub-clause (10.), insert the following now sub-clause: - “ (10.) The members appointed to represent publicly owned abattoirs and freezing works which deal with meat for export shall be -
Each member shall hold office during the pleasure of the Governor-General.”.
House of Representatives’ s message -
Amendment amended as follows: -
– I move -
That the amendments be agreed to.
When this bill was previously before the Senate certain alterations suggested by the Government were agreed to, and sent to the House of Representatives for iti concurrence. The Senate desired to provide that each member should hold office during the pleasure of the GovernorGeneral, but the House of Representatives thought that difficulties might arise in the event of a person who was removed from office by the Governor-General still holding office in the State. For instance, should the person holding the- position, of Metropolitan Meat Industry Commissioner in the State of New South Wales be removed from the Meat Board by the Governor-General, but still hold his position in the State, a deadlock would arise, because although a vacancy would have occurred, there would be no means of filling it. The House of Representatives now desires to add at the end of paragraph a the words : “ or in the event of that person ceasing, in pursuance of . this section to hold office as a member of the board, such person as is appointed by the GovernorGeneral on the nomination of the Governor in Council of that State “. The proposed amendment will avoid any deadlock. The amendments to paragraphsb, c and d are exactly to the same effect, namely, to remove the possibility of a deadlock being created. The bill, in the form in which it left this chamber, made no provision at all for the filling of a vacancy, but now it is provided that if a delegate is removed by the Governor-General, a successor may be appointed on the nomination of the Government of the State. The explanation of paragraph a. applies equally to paragraphs b, c and d. The object is only to meet a situation that might possibly arise. The principle of the bill is not affected, and I therefore request the Senate to accept the amendments.
.- These amendments may remove the possibility of a deadlock, but they introduce a very much more dangerous possibility. The object of the measure is to enable the meat-export industry to be managed by those actually engaged in it. Under these amendments the Governor-General in Council may at any time remove any member of the board and appoint a successor who may, or may not, have any knowledge of the meat trade. If the Governor-General in Council did not agree with the political views of the four gentlemen on the board, they could be removed and be replaced by persons whose politics were more acceptable.
– No; such persons must be nominated by the governments of the States.
– The principle cuts both ways. I shall be satisfied if an amendment be made to provide that a nominee to replace a member of the board removed by the Governor-General shall occupy a managerial position in the meat industry. (
– The point raised by Senator Leckie introduces the question of whether we can trust governors in council or the Governor-General in Council to try to operate an act as Parliament intended. The bill does provide for the representation of certain publicly-owned abattoirs, and it is quite true that the Governor-General in Council may remove those representatives. But then, it is equally true that the Government, which is responsible for this bill, need never have introduced it. The Government initiated this legislation for the purpose of expediting and strengthening the control of meat for export in the interests of the whole of the meat trade. The honorable senator must admit the possibility of a deadlock arising as a result of the amendments made to the bill by this chamber. The problem was fo find out how we could overcome the possible difficulty of the GovernorGeneral in Council removing a member of the board and appointing another person who would be prohibited by the mandatory requirements of subclause 10(a) The easiest way out of the difficulty was to keep the control, in the hands of the State by permitting a Governor in Council to nominate some person whose appointment would be subject to the approval of the Governor General. Hence there is a double safeguard. First, a person must be nominated by the Governor in Council of the State, and, secondly, his appointment must be made by the GovernorGeneral in Council. I assure Senator Leckie that the amendment entails no serious risk, such as he envisages. Having regard to the personnel of the board, I assure honorable senators that only men who are associated with the industry will be appointed. If we cannot trust govern.nors in council and the Governor-General in Council to do the right thing in this case we cannot trust them to administer other laws.
– I consider that there is definitely something of importance in the point taken by Senator Leckie. I preferred this clause in the form in which it left the Senate last week. Perhaps no very great principle is involved, but this complicated amendment means, in effect, that four out of the eighteen members of the Meat Export Control Board will, after the first nominees have ceased to hold office be nominated by the State governments. No provision whatever appears to have been made to ensure that such persons shall have any knowledge of the meat industry. A completely new method is introduced with regard to any individuals who may be appointed under the different sub-clauses of clause 5. Of the probable eighteen members of the board, some will represent the stock producers of the States, the Northern Territory, and the southern Riverina, the pig producers, the meat-exporting companies of each State, and co-operative organizations which export mutton and lamb ; four will represent publicly-owned abattoirs and freezing works - the portion with which we aye dealing now - and one member will represent the Commonwealth Government. This measure does not require .the representative of the Commonwealth Government to have any particular affiliation with the meat trade; in fact, he is the only one of the eighteen who is not required to be associated with the industry. We assume, of course, that the Government will naturally appoint an expert on meat, and it may be claimed that it is reasonable to imagine that the States will act similarly.
The committee ought to consider the effect of these amendments, which, if adopted, will extend to a number of persons for whom no qualifications are provided, and who may not be in any way associated with the meat industry, the right to sit on the board. I do not think that that is desirable. I believe that the clause as it left this chamber was more acceptable than the form which is now proposed, as, for instance, it gave the Metropolitan and Export Abattoirs Board in South Australia, which is an independent government instrumentality, the power to nominate a representative. It may be thought desirable to place other nominees on a similar footing; but there is no guarantee that the persons nominated by State governments shall be directly associated with the meat industry.
– Does not sub-clause 3 of clause 5 cover the whole clause?
– The proposed amendment will affect that provision.
– Does not that subclause still govern the personnel ?
– Certainly; but there is no assurance that the successors or substitutes appointed will be associated with the industry. Like Senator Leckie, I have some doubt as to the desirableness of States having the power to nominate particularly as the persons appointed may not be associated with the industry. A person nominated by a State government would doubtless be a meat expert ; but is there any reason why it should not be specified in the act?
– If we come down to points of extra refinement such as those mentioned, we shall find that the Australian Meat Board may, technically at any rate, consist of representatives, none of whom has anything whatever to do with the meat trade. Sub-clause 4 of clause 5 reads -
The members appointed to represent the stock producers of each State shall be appointed upon the nomination of a majority of the representatives of the stock producers on tho Meat Advisory Committee in that State.
Sub-clause 7 of the same clause reads -
The members appointed to represent the pig producers of Australia shall be appointed upon the nomination of the Council for the Australian Pig Industry, or such other body as is approved by the Minister.
The bill provides that persons with power to nominate shall be connected with the particular branch of the industry concerned, but it does not provide that they shall nominate persons who are themselves associated with the industry. They could appoint persons, some of whom may have no connexion whatever with the industry. But it is only common sense to assume that men who are themselves associated with the industry will nominate persons who will represent their views. It is also true that the Governor-General in Council or a Governor in Council may appoint persons, who, they think, deserve something from them but know nothing whatever concerning meat. Such representatives ‘ may not necessarily be associated with meat. Persons appointed to represent particular branches of the industry may be connected with the industry, but the bill does not provide that they shall be. The Governor-General in Council or a Governor in Council of a State may make unworthy appointments, but such appointments may not be limited to a meat board. In making appointments to the judiciary or to other important posts, it is always assumed that persons capable of undertaking the work they are expected to perform will be appointed. The bill does not expressly provide that the GovernorGeneral in Council or a Governor in Council shall nominate some person connected with the industry, but since no wrong can be imputed to the King or his representative, the assumption is that suitable men will be appointed. Surely a Governor in Council, which means a State Government, can be trusted to appoint some one who will have equal standing in the industry with the other members of the board. It is, of course, extremely improbable that the necessity for re-appointment under the conditions mentioned will arise. The members of the board will hold office during good behaviour, but if any of them die or retire, equally competent men will be appointed. This point was debated in the House of Representatives in an entirely non-party spirit, merely with the desire to make the provision, workable, and I ask the committee to accept the amendments.
.- 1 cannot accept the statement of the Assistant Minister (Senator Brennan) that Senator Duncan-Hughes and I. indulged in extra refinements, because the Assistant Minister used an even finer sieve. Other members of the board arc to be persons actually engaged in the industry, and it is essential that all the members of the board should have that qualification. That is a fundamental requirement in any scheme of this kind. I voice my protest against the amendment because I see grave danger of the provisions of the bill being used in the way which I have indicated, and I am concerned to .maintain the principle that those responsible for the carrying on of our export primary industries shall be adequately represented on boards appointed to control the overseas trade. The Assistant Minister seems to be under the impression that the present Ministry will always’ be in office. I take a somewhat longer view and envisage the time when it will be displaced by a government which, for purposes of its own, may desire the appointment to the board of persons having nothing whatever to do with the industries concerned. I fail to understand why the Assistant Minister should object to the very small and reasonable amendment which I have requested in order to safeguard the interests of those actually engaged in the meat industry.
[3.53]. - Even if an amendment such as that suggested by Senator Leckie were inserted it could only be in the form of a direction, and I suggest that there is already in the bill provision that meets his objections. Paragraph g of sub-clause 2 provides for the appointment of-
Four members to represent publicly-owned abattoirs and freezing works which deal with meat for export from Australia.
That surely is a direction to a State government and also to the Federal Government that the persons to be appointed under sub-clause 10 as it will be amended shall, in fact, be such persons.
– Sub-clause 3 strengthens the Minister’s argument.
– That is so. Sub-clause 3 provides that members of the board shall be appointed by the Governor-General “in accordance with the provisions of this section “. I cannot conceive any form of amendment which would give a more definite direction concerning appointments to the board under sub-clause 10. We should also bear in mind that we cannot strip a State government of its prerogative. All that we can do in our legislation is to give a direction concerning the kind of men who, in our opinion, should be appointed. If a State government made an appointment not in conformity with the act, it would be flouting the law. I feel sure that if Senator Leckie studies more closely the provisions to which I have directed his attention he will find that what he is contending for is already in the bill.
– I am afraid that the Assistant Minister (Senator Brennan) did not quite follow my argument. T do not think I said that a State government would appoint unworthy persons. My sole concern is to see that the provisions of the bill are so drafted as to ensure the appointment to the board of the proper persons. I also remind the Minister that honorable senators are quite entitled to express their opinion upon this important subject. In my opinion the form in which this clause was passed by the Senate was to be preferable to the amended clause now under consideration. I understand that it was not, at first, a Government amendment; that it was suggested by a private member of the House of Representatives and, after discussion, was accepted by the Ministry.
– The honorable senator will admit, in the clause as it left the Senate, there was the possibility of a deadlock concerning the appointments.
– The Leader of the Senate may be right. I have not had time to study, in sufficient detail, the various drafts of the clause to say what alterations have been made in the verbiage; but, as regards the appointment of a successor to any one of the four members representing publicly-owned abattoirs and freezing works, my objection is that this power is being taken away from the persons to whom it was given originally, and is being given to a State government. I put it to honorable senators that while the pig producers may appoint, as their representative, some one who is interested in homing pigeons, they are much more likely to appoint some one with a practical knowledge of the pigraising industry. Under the amendment which we are now considering the State Government has the right to nominate the successor of a member who may be removed from the board. I believe that it will nominate a suitable person but there should be no objection to a slight alteration of the verbiage to make it quite clear that the four persons appointed to the Board as representatives of publicly-owned abattoirs and freezing works shall, in fact, be persons connected with the meat industry.
– That is provided for by paragraph g of sub-clause 2 and also by sub-clause 3.
– I do not think so, because, as Senate Brennan has. pointed out, it is not stipulated that any one of those appointees must be definitely a producer of beef, mutton, lamb or pigs. There is, however, an internal safeguard with regard to other appointees of the board. Under paragraph g a State government may, and in accordance with the act, appoint a capable man who is not himself directly interested in the meat industry. An interesting situation might arise if one of the four representatives had been appointed by a State government for hostile purposes. I do not wish to overemphasize this possibility but I have heard nothing in the discussion this afternoon to cause me to alter my opinion that the form in which the Senate passed the bill was better than the amended form of which we are now asked to approve.
Amendments agreed to.
Resolution reported; report adopted.
Bill received from the House of Repre sentatives and (on motion by Senator Sir George Pearce) read a first time.
Debate resumed from the 15th. of November (vide page 1707), on motion by Senator Sir George Pearce -
That the bill be now read a second time.
– As this is merely a machinery measure to provide for a more effective conduct of administrative affairs in New Guinea I have no desire to prolong the debate or delay its passage.
Question resolved in the affirmative.
Bill read a second time and reported from committee without amendment or debate; report adopted.
In committee: Consideration resumed from the 7th November (vide page 1362).
Clause 6 -
Section twenty-five of the Principal Act is amended -
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; . . . shall be guilty of an indictable offence.
Penalty: Five hundred pounds or imprisonment for two years.” and
Section proposed to be amended -
Penalty: Imprisonment for life.
Upon which Senator Allan MacDonald had moved by way of amendment -
That the words “’ Five hundred pounds or “ proposed new sub-section (1a) bo left out, with a view to insert after the word “ years “ the words “ or in the case of a corporation, five hundred pounds.”
Senator BRENNAN (Victoria- Assistant Minister [4.9]. - I cannot accept the amendment; the bill as it stands is preferable.
– Dealing with the proposed new sub-section 1a,
Senator Dein raised objections to the words “ as to, or as to be likely to”, being under the impression, apparently, that they placed the onus of proof on the person charged. These words do not alter the onus of proof in any way. A person charged under this sub-section has to be tried before a jury, which would take its directions as to the law from the presiding judge, who would put the matter before them somewhat in this way - “In your opinion is this book, periodical, pamphlet, poster or newspaper of such a nature as to be likely to seduce any person serving in the King’s forces from his duty and allegiance? If you are satisfied beyond reasonable doubt that the publication is of such a nature, you should find the accused guilty; if you are not so satisfied, you will acquit him.” Thus, the onus of proof will not .be altered by anything appearing in this proposed new sub-section.
– I propose to refresh the minds of honorable senators concerning the objections of the Opposition to the words “ or as to be likely to “. We have to consider the use that will probably be made of this law and the circumstances likely to be prevailing at the times when it is put in operation. They will not be times when every one in the community is calm and when a considered judgment is likely to be given by judicial authorities If these particular words are omitted, the position will be different. Under such circumstances, the tribunal charged with considering the matter will merely have to decide whether any book, periodical, pamphlet, handbill, poster or newspaper contains matter of such a nature as to do certain things. That will be a fairly definite issue upon which a tribunal can be expected to give a reasoned judgment. Now, it appears to me, in order to be quite certain of securing a conviction the Government proposes, in effect, to direct the judge to say to the jury, “ You have not finally to decide whether such a publication is of a nature calculated to do certain things, but, if, in your opinion, such a publication might possibly lead to these things being done, you will find the defendant guilty”. This is a sort of dragnet arrangement.
– The jury must be satisfied beyond a reasonable doubt.
– That would apply to the first part of the new subsection under which a jury would have to be satisfied beyond a reasonable doubt that the matter published was of a nature to do these things. Now, however, in order to make quite sure that the accused shall have less opportunity to escape, the jury is told that if it is of the opinion that such a matter, even by a stretch of the imagination, is likely to have certain effects, it should find the accused guilty. The Opposition had hoped that the Minister would see his way clear to withdraw these words.
– My first objection to this clause is the omission of the word “ knowingly “ which appears in the principal act. The law seems to have been quite adequate to meet all requirements from the establishment of the Commonwealth nearly 150 years ago until a newspaper, Truth, published a sensational article which was alleged to contain seditious matter. In this case, a prosecution was launched, but did not succeed. Everybody knows that editors, publishers and proprietors, have quite enough to do in conducting a newspaper without being confronted with further traps of tin’s character. This is not a party matter, but concerns all printers and publishers. A few years ago the editor of the Brisbane Telegraph was charged with having published seditious matter because he had published a letter sent to him by a correspondent. Eventually he was- acquitted of the charge. Whether or not a statement published in a newspaper is seditious depends largely on the point of view of the person who reads it; what might appear to one person to be seditious might be considered harmless by another. Editors and other persons associated with newspapers have enough to do without having to weigh the possibility of something which they publish being construed to be seditious. I am astonished that the press of Australia has not been more alive to the danger confronting it. If the word “ knowingly “ were omitted from the act, every publisher would need to have a team of barristers at his elbow to advise him; and even then he would not be certain whether or not be was publishing seditious matter, because in all probability the barristers would disagree. Even if he accepted the views of the majority, he might find that the court held a different view. I have had some experience of newspapers, and I have seen the members of the staff of a newspaper in a state of great nervous tension because of the possibility of a charge of libel being laid against them. Reputable Australiannewspapers are not likely to publish seditious or libellous matter; the possibilities of an expensive court case are too serious to be disregarded. At the moment the press of Australia is silent regarding . the Government’s intention; but should one or two editors or publishers have to face court proceedings, the press will probably seek an alteration of the law. I agree with the remarks of the Leader of the Opposition regarding the words “ or as to be likely to “. I move -
That after the word “ who “, proposed new sub-section (1a.), the word “knowingly” be inserted.
– I cannot accept the amendment, because the committee has already dealt with an amendment to a later portion of the proposed new sub-section. The honorable senator may move later for the recommital of the bill.
– I rise to a point of order. The committee is dealing with clause 6, and I submit that it is competent for an honorable senator to move an amendment to any part of the clause.
– I cannot accept an amendment which would take the committee back beyond other portions which have already been dealt with.
[4.25]. - In order to show the danger of retaining the word “knowingly “,I propose to quote from the official records of a case which was dealt with by the Supreme Court of Victoria in The King v. William Arthur Payne -
John Greig Latham, the Attorney-General of the Commonwealth of Australia, informs the court and charges that on or about the fifth day of November, . 1932, at Melbourne, in the Central Bailiwick of the State of Victoria, William Arthur Payne, of 402-406
Latrobe-street, Melbourne, in the said State, printer and publisher, did contrary to the Crimes Act1914-1932 of the Commonwealth of Australia, by means of an article headed “ Navy Issues Strike Ultimatum “, published by the said William Arthur Payne in the Truth newspaper at Melbourne, aforesaid, knowingly attempt to incite certain persons serving in the King’s Forces, to wit, the lower deck ratings of H.M.A.S. Canberra, H.M.A.6. Australia, H.M.A.S. Albatross, H.M.A.S. Tattoo, and other ships of the Royal Australian Navy, to commit an act of mutiny Dated the ninth day of November, 1932.
Attorney-General of the Commonwealth of Australia.
This prosecution commenced on Wednesday, 22nd November, 1932, at the Supreme Court, Melbourne, before His Honour Mr. Justice Lowe and jury. Mr. L. V. Cussen and Mr. W. O’Bryan appeared for the . prosecution, Mr. Gorman, K.C., and Mr. A. L. Read appeared for the accused.
The general plea was “Not guilty”, but the real defence was -
that Payne had nothing whatever to do with the editorial department, of Truth newspaper;
that he had not written the article complained of;
that he did not know about the article until it was printed and published; . and
that althoughhe saw the paper when it came off the printing presses he merely glanced at it to see that the printing was up to technical standard, but that he did not read one word beyond the heading.
Mr. Gorman (for the defence) further Submitted -
that the article did not amount to an incitement to mutiny, and
that if the article were in fact seditious the accused, although he printed and published the article in a technical sense, could not bo held to have knowingly attempted to incite the navy to mutiny inasmuch as he did not write the article nor did he even read it. [ shall now read a few extracts from the address to the jury by Mr. Gorman, K.C., counsel for the accused - . . But, gentlemen, in a criminal court, one must descend to some particulars and there must be a jumping-off point. In order to achieve that, let me “indicate to you precisely what is it with which the accused publisher is charged. The charge is that he is a personwho, in the words of the section “knowingly” (that is the first important adverb) “knowingly attempted to incitea person serving in the King’s Farces to commit an act of mutiny”, a very grave crime, originally punishable, of course,with death; but we have come down from that and we can now range over a considerable field from imprisonment for life downwards. Let us first get to the essence of this grave offence “that the accused person knowingly did what is represented” - “knowingly attempted to incite a person serving in the King’s Forces to commit an act of mutiny “…
You should say to yourselves, “What are we trying this man for 7” The answer is that lie” “knowingly”, not inadvertently, “attempted to incite Australian sailors to mutiny “…
You will say to yourself, “ What has Payne to do with it? Did Payne write it?” The answer is “No.” Did he cause it to be written ? The answer is “ No.” . . .
An ex officio information is lodged against this printing gentleman, and he comes along to the court, lets himself into the dock, closes the door on himself, and you, gentlemen of the jury, are commissioned to try whether he attempted, to try whether he “knowingly” attempted to incite the Australian Navy to mutiny. . . .
The article is written and the fleet arrives here, and my learned friend Mr. Cussen says it was contemporaneous with the arrival of the fleet. When would you expect it to be? You do not write an account of the Melbourne Cup on the first Tuesday in June. You do not write an account of Christmas Day happenings at Easter. Of course the article was contemporaneous with the arrival of the Navy. . . .
But you, gentlemen, will, I suggest, subject to any direction the learned judge gave you, look at this article in a wide and generous spirit. I emphasize the word generous, because it is one which has been -more than any other utilized by judges in dealing with matters of this character. Looking at it in a generous spirit, you have to say: “What is the wording of this charge - that this accused knowingly attempted to incite the Australian Navy to mutiny. . . .
I draw special attention to the following extract from Mr. Gorman’s address : -
If this article wore the most seditious ever published, if every line of it were an inducement to our Navy to rise and disregard its oath of allegiance, if its character was such that no counsel could easily get up and deny to you that it was full of all that was reprehensible and unpatriotic, even though that were so and even though it were not the innocuous thing which this article is, it would still he our strongest submission to you that this man could not be saddled with the responsibility. Some one wrote this article; some one censored it; some one edited it: but the evidence as to what happened is all one way, that this man has never written a newspaper article in his life. Ho printed and published in the technical sense, but that is not the charge, not that he printed it, not that he published it, not that he is news printer or publisher, but that he personally, not his company, knowingly attempted to incite the Navy to mutiny.
In his summing-up, Mr. Justice Lowe, after dealing with the elements of the case, said -
Now let me take the other assumption, that you think the article properly construed is an incitement to mutiny. That does not necessarily mean that the accused is guilty of this crime charged against him, because you see the indictment says that the incitement was of certain persons serving in the King’s Forces, to wit, the lower ratings of those vessels.
I propose then to pass on to what is a much more important element of the facts in this case, that is, “ Did the accused knowingly attempt to bring about the result I have been discussing, that is, inciting the lower ratings to commit an act of mutiny?”
His Honour then proceeded to quote a portion of Payne’s evidence. The effect of this evidence is that, though Payne’s duties consisted of general office management in connexion with the .paper, such as the control of agents’ supplies, the control of accounts, supervision of the advertising department, supervision of advertising contracts, and the general administration of the office, he had nothing whatsoever to do with the editorial department of any paper. He has never written an article for’ publication in Truth in his life, and he has never known anything of any article published in Truth prior to publication. He did not know one word about the article in question until after the paper was printed and published. . . .
But if you thought that Simpson’s account was correct, and he did know and he did use the words, “I have never liked it,” then the fact of the statements being untrue and of absence of any inquiry to find out the truth would be material matter for you to consider on this charge of knowingly attempting to incite to mutiny.
Simpson was the detective who served the summons, and to whom the publisher made certain comments. The whole essence of the defence in this case turned upon the word “ knowingly “. There was never at any time a serious attempt to suggest that the article could not have the effect of inciting to mutiny, and the defence was mainly directed to the point as to whether the accused “knowingly” attempted. His Honour at one stage invited the jury to contemplate the possibility of this incitement to mutiny. He remarked that if the jury came to the conclusion that the article was seditious it would still have to consider the other elements contained in the charge. His Honour gave no direction to the jury as to whether the article was seditious or not, and in consequence it is still open to anybody to claim that the writer - of the article deliberately intended such incitement The effect of the judgment was merely to exonerate Payne of the charge of having knowingly incited to mutiny, and the article itself was not directly relevant. Had the jury come to the conclusion that Payne was the person responsible for the article in that it was published with his knowledge and consent, and with a full realization of its possible consequences, the jury would then have had to come to a conclusion as to the seditious properties of the article; but that did not occur. It is, therefore, open to anybody to claim that the article was seditious.
For an offence against this law, some person must be held responsible; and whom should it be? The person who writes an article or the publisher of it? Obviously, it must be the publisher; he is the only person who can be held responsible. Under the existing law, the publisher has only to enter the witness-box and say, “ I know nothing about the contents of the article ; I merely printed and published it “, and he cannot be convicted. That is the reason for the omission of the word “knowingly”. Largely as the result of the experience in this case, the Government has advisedly omitted the word “knowingly” from the proposed new subsection 1a..
– Section 25, which clause 6 amends, refers to any person who knowingly attempts to seduce a person in the King’s Forces. But in the proposed new subsection dealing with the publication of seditious matter, the word “knowingly” does not appear. Senator Pearce has maintained that this omission is necessary. I fail to understand why the word should be left out in one instance and nor. in another. If a person publishes a book and is haled before the court, he knows perfectly well whether he has published that book or not. There remains for decision by the court the question of whether the article is likely to seduce any person serving in the King’s Forces from his allegiance. Senator Pearce said that, in the Truth case, the judge gave no direction to the jury in regard to inciting to mutiny; and that the whole of the defence rested on the word “ knowingly “. According to the issue of Truth of the 10th November, the judge said -
Senator Pearce quoted from a departmental report, which stated that the judge gave no direction whatever to the jury on the question of inciting to mutiny. According to Truth, the judge asked the jury to decide whether the article, if read in a fair-minded manner, would be likely to incite a person serving in the King’s Forces to mutiny. The judge proceeded -
Admittedly, a rational and intelligent counsel for the defence would make use of these provisions, and he could not be blamed for doing so. If an article, of which the publisher knows nothing, is published above his name, is it just that he should be prosecuted, and because it is proved that the matter might have incited to mutiny, that he should be sent to gaol without the option of a fine, as is desired by Senator Allan MacDonald?
– That, would be a question of the measure of punishment. In a civil case he would be liable; there would be no answer.
– In my opinion, no reason exists for the omission of the word “ knowingly “. A publisher ought to be safeguarded, to the extent that the prosecution should be required to prove that he knowingly published a seditious article.
– He should know first and publish afterwards.
– Truth published, an article in good faith. Admittedly, the matter was sensational, but then Truth is a sensational newspaper, and naturally it seized on this subject, but it did not deliberately attempt to incite to mutiny. SenatorPearce said that special steps had been taken to circulate the publication to the lower ratings on the warships. But Truth declared -
No special steps were taken to circulate the publication to the men on the ships.
-Pearce. - But Truth published the article’ contemporaneously with the arrival of the Fleet in Melbourne.
– No steps to circulate were taken by Truth.
– Senator Pearce said that special steps had been taken to circulate copies among the ratings. Truth denies that, and the judge particularly pointed out to the jury -
There is no evidence before you that a single copy of Truth ever came to a single person of the lower ratings, and that is not the way the Crown puts the case to you.
This matter was published to sell the newspaper, and because it made good reading, and Senator Pearce is upset because a conviction was not obtained by the Government. According to the tenor of the honorable senator’s speech, the judge should have punished Payne for having published the article. The statement made by the editor bears out the contention of the Labour party that it is necessary at times to give full publicity to what is happening in the army and the navy, so that any causes of discontent may be removed, and not for the purpose of inciting to mutiny. The Government, however, desires to amend the act to enable the authorities to prosecute a person and obtain his conviction and imprisonment, no matter what unselfish and lofty motives may actuate him in his efforts to terminate disaffection. The Government has deliberately set out to catch a certain individual who may be possessed of the best of intentions.
– The honorable senator is misreading the proposed new sub-section.
– According to the Minister, the Government has a definite object in leaving out the word “knowingly”, so that in any case against a newspaper in future the publisher may be enmeshed in the coils of the law and imprisoned.
– The responsibility is merely fixed on one person, the publisher.
– The object is to prevent such crimes from happening in the future.
– Senator Pearce hasdescribed the publication of such matter as a crime. In the case under consideration the jury after deliberating for fifteen minutes returned a verdict of not guilty. It took into consideration whether this article was an incitement to mutiny.
– The jury took into consideration the question, “ did the publisher knowingly do it?”
– If Truth has correctly reported the case, the judge in his direction to the jury said. “ Was the article an incitement to mutiny or a fair report of news, and a warning to the naval authorities ? “
– The judge asked the jury to decide whether the publisher had “ knowingly “ published the article.
– A publisher may not know that he has published an article.
– Under the present law it must have been published knowingly.
– A publisher may be convicted because he cannot deny that he was the publisher of an article.
– But in the case mentioned he did deny that he was the publisher.
– Then the wrong person must have been charged, and it was only right that he should be acquitted.
– He was the publisher of the paper, but he said that he did not see the article in question.
– The name’ of the publisher of a newspaper appears in the imprint. A person who deliberately publishes an article inciting to mutiny must stand his trial, and accept the consequences, but honorable senators opposite contend that a publisher of a newspaper who knows nothing whatever concerning the contents of an article he publishes shall be treated as a criminal. In the opinion of Senator Allan MacDonald, such a person should be placed in prison without having the option of a fine.
– Quite right, too.
– The honorable senator contends that a publisher should be imprisoned for publishing an article concerning which, he knows nothing.
– The honorable senator’s time has expired.
Senator DEIN (New South Wales) [4.53]. - I entirely agree with the omission of the word “knowingly”, because if it were inserted it could be used as a cloak behind which a cunning and unscrupulous person might hide. In criminal libel cases the court has to. determine whether an article is libellous, and if it is the publisher is responsible. In this instance a publisher, should satisfy himself before a publication sees the light of day that no article which he publishes incites to mutiny. If it does he is responsible. When, the insertion of the- words “ or as to be likely to “ was discussed several weeks ago I was- not clear as. to their effect upon an accused person. The proposed new. subsection provides that any person who publishes any book, periodical, pamphlet, hand-bill, poster, or. newspaper containing any matter of such a nature as to, or as to be likely to,- result- in the seducing of’’ any. person serving in the King’s forces- from his duty shall be guilty, of anindictable offence. The words “or as to be likely to” have apparently been. used. instead of the word “ attempts “. The court must determine whether any publication, has. resulted in the seduction or is likely to result in. the seduction of any person.. If there has been a deliberate attempt toincite to sedition the- person responsible should be punished and the words to which the Opposition objects are necessary in order to secure a conviction.. On a previous occasion the question was raised of whether, under, theamended provision, an accused person would’ be likely to receive the benefit of the doubt, but I believe that in such cases the phrase proposed to be used will not prejudice the rights of an accused person.
– I am intensely- intrigued with the ease with which Senator Dein salves his conscience by. saying that he is satisfied that the words, “or as; to.’be likely to “ have the same effectas the word “attempts”. The conversion of the honorable senator hastaken some time but apparently it has been fairly easy. Will the Assistant Minister (SenatorBrennam) define the: word “ publisher “ Having had some experience in newspaper work I know that a publisher of a newspaper is not expected to read what he publishes. A publisher of a- newspaper is merely an employee whose name appears in. the imprint as the publisher and he is the person who can- be tackled. In- the case mentioned by the Leader of the Senate (Senator Pearce) the wrong man was- tackled. To omit the word “ knowingly “ is to make an absoluteassault on the liberties of the press, because it means that some member of a newspaper staff will, have to read every word that appears in certain articles.
– Should- not articlesbe’ readbefore being published?
– They are not allread. It appears to be the objectiveof the - Government to secure the conviction of some one rather than to avoid unjust convictions.. If the word “knowingly” is- omitted and the words “ or as to be likely to “ are inserted it will be easy to- obtain convictions.Any one who has the- slightest regard for liberty, must consider this measure an atrocity. Senator J: V. MacDonald said that he was surprised that the newspaperproprietors had not expressed their strongopposition ; tothe proposed amendments, but I- know that a number have said that this measure is an attack upon the liberty of the press- and the rights of the people.- The Leader of the Senateattempts to make it appear that casehardened members- of the Opposition, in this chamber are associated with persons who incite members -of the defence forces to mutiny-. The honorable senator almost makes- us- feel that weare criminals becausewe- believe in- freedom, ofspeech and the liberty of the- press. The members of the Opposition will useall the powers they possessto have the word “ knowingly “ ‘ re-inserted andthewords “or as to be likely to” omitted. Ministersand those supporting, them, should know that the members of the- Opposition are sincere, when they, say that- they have no sympathy whatever with those- who incite to mutiny, but we believe that the people should have the right to express themselves freely. During periods of excitement and even during an election campaign it may be said that the language of some candidates is likely to result in the overthrow of the Government.
– In what clause is that provided ?
– It is not in this clause but it is in another portion of the bill. If all safeguards, and there are Only a few,- are removed, any candidate who has the courage to express his opinion may be subject to the provisions of this bill. I move -
That the words “ or as to be likely to “, proposed new sub-section 1a, be left out.
– The committee has already dealt with the part of the clause to which the amendment refers. I am, therefore, unable to accept it. The honorable senator may, however, move later for the recommital of the bill with a view to the insertion of the amendment which he has proposed.
.- I have been vainly endeavouring to follow the reasoning of Senator Collings. The honorable senator has complained of the deletion of the Word “knowingly”, and has declared his intention to move heaven and earth to have it reinstated. It is apparent that tho honorable senator has not read the bill, or he would not have made that statement. The word “knowingly “ is udt to be found in it.
– It appears in the original act.
– But we are dealing with the bill, and I contend that it is impossible to reinstate words which do not appear in the bill.
– Read the act.
– I am well aware that the word “knowingly” appears in section 25, which provides that any person who “ knowingly “ attempts to seduce any person serving in the King’s Forces from his duty and allegiance shall be guilty of an indictable offence. This bill does not interfere with that provision. All that it does is to enact, in proposed new section 1a, 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, seduce any person serving in the King’s Forces from his duty and allegiance, or incite any such person to commit an act of mutiny or to make or endeavour to make a mutinous assembly, shall be guilty of an indictable offence. Clearly the intention of the Leader of the Opposition is to embarrass the Ministry, because, as I have explained, this amending bill does not delete the word “knowingly “ from section 25. All the necessary information about the effect of the amendments, is available to honorable senators in the memorandum issued by the Government for their guidance. Senator Collings should study the document, so as to be able to discuss the bill intelligently, and not attempt to mislead the public by suggesting that this bill will take away the rights of the people. I approve entirely of the Government’s objective, namely, to make the act more workable. The Leader of the Senate (Senator Pearce) has exexplained hew’ difficult it has been to give effect to the intention of the Parliament when it passed the Crimes Act, because of the omission of certain provisions. If Senator Collings were as well informed as I am concerning the difficulties of administering the act, I feel sure that his attitude would not be so hostile. But I am well aware that, in common with his Labour colleagues in this chamber, his desire is to mislead the people, as they have been misled during the last few weeks, about the effect of these proposed amendments of the Crimes Act. I have heard from public platforms statements in every respect similar to those made by the honorable senator this afternoon, that the bill will destroy the freedom of the people. There is no justification whatever for such statements. Nevertheless, they are made deliberately, not only in this chamber, but outside of it. No person occupying the position of Leader of the Opposition should say anything that is calculated to mislead the people with regard to legislation. His object ought to be to enlighten the public. He has alleged that this bill will prevent any person from saving anything in opposition to this Government. There is no truth in such a statement.
.- I agree with Senator Payne that it is futile to talk about the re-instatement in the bill of a word which does not appear in any of its provisions. As the honorable senator has pointed out, the word “knowingly” is to be found in sub-section 1 of section 25 which states that any person who “ knowingly “ attempts to seduce any person serving in the King’s forces from his duty and allegiance, shall be guilty of an indictable offence. As the Leader of the Senate (Senator Pearce) has pointed out, some time ago an article appeared in a Melbourne paper and proceedings were taken against the publisher under section 25. The law requires that the indictment shall set out exactly what the charge is. For the information of Senator Brown, I may add that when a judge charges a jury, it is his duty to point out what is the charge contained in the indictment. In the case in question the indictment alleged an offence under paragraphs a and b of the sub-section to which I have referred, dealing with incitement to commit an act of mutiny or traitorous or mutinous acts. Learned counsel for the defence, as the Leader of the Senate has explained, directed the whole battery of his eloquence to the word “ knowingly “. ‘ It was not in dispute that the publication of the article was calculated to incite persons serving in the King’s forces to commit acts of mutiny. The defence was: “We did not ‘ knowingly ‘ do any of these things. The man charged is the publisher, who looks after the office work. He never wrote an article in his life “. That was the position under the law when the prosecution was launched and, as the Leader of the Senate pointed out, this defence would be open to any .person who was charged under section 25. The writer of an article, for instance, might deny authorship, and if the article were typewritten, it would be difficult to establish the proof.
– The publisher might purposely absent himself from the office on the day of publication.
– Yes, and he might quite easily satisfy an inquiring police officer that he was away. Because of the difficulties of proof under the law as it stood, it was decided to extend the provisions of section 25 by inserting a new section 1a which enacts that any person who publishes any book, periodical, pamphlet, handbill, poster or newspaper containing any matter of such a natureas to or as to be likely to seduce any person serving in the King’s forces from his duty and allegiance, shall bo guilty of an indictable offence. I admit that in this proposed new sub-section, which extends the provisions of sub-section l, the word “knowingly” has been omitted. Although, in the prosecution to which I have alluded, it was not alleged that any representative of Truth newspaper disseminated the article, there were persons who were quite willing to take advantage of the opportunity, and did circulate a pamphlet among the lower ratings on naval vessels which were in port at that time. Under the act as amended by this bill, it will not be a good defence for any publisher who is charged under section 25 to plead ignorance of the contents of any book, periodical, pamphlet, handbill, poster or newspaper.
– Is it not a common practice for editors to obtain legal advice when newspaper articles intended for publication contain statements that may be libellous.
– It is not an uncommon practice. The Leader of the Opposition has said that the Opposition has stated its case on this point. It has stated and reiterated it a number of times, and honorable senators by now know thoroughly what the Opposition’s case is. Without the slightest desire to burke the very fullest discussion of this clause, I remind honorable senators that the Leader of the Opposition, in the early stages of the consideration of this bill, said that the Opposition would use all the forms of the Senate to block it. If the Opposition persists in such an attitude we may have to consider the application of remedies for it.
– That is the only way the Government will stop us.
– The Government does not object to the expression of considered opinions, but it objects to mere talking, which does not throw any new light upon the measure, for the sole purpose of impeding its passage. As this clause has been fully discussed, I suggest that it should now be allowed to go to a division.
– Can the Assistant Minister give us a fuller definition of the word “publish”?
– The Assistant Minister (Senator Brennan) has said that the Government is anxious to give the Opposition the fullest opportunity to discuss the bill. We are not lawyers, and when we ask questions concerning the legal meaning of certain words, we should be given civil answers. I understand that the word “ publishing “ covers not only printing, but also distributing.
– For the purpose of a libel, that is so.
– The Assistant Minister has admitted that the distributors of the edition of Truth, in which the allegedly seditious article appeared, could be regarded as publishers. This proposed new sub-section deals with the man who is usually recognized as the publisher of a newspaper - the man whose name is required by law to appear in the imprint. He does not know that an article, which is likely to incite to mutiny, is printed in his paper; but, as a fact, the article is published. Then, the paper containing such an article may be distributed among the lower naval ratings. If, in Truth’s case, such a publication was distributed among naval ratings with the object of deliberately inciting them to mutiny, it was the duty of the Government to have charged, not the publisher of Truth, but the men who distributed the paper, and then to have proved that these men knowingly distributed that paper among the ratings with the object of inciting them to mutiny. In fairness to Truth, let us examine what that journal said about the matter when this case came before the court in November, 1932 -
Mr.Justice Lowe, in a masterly summingup, told the jury to read the article as a whole in a fair-minded manner, not just sentences picked out for a purpose. He pointed out that the Crown had failed to prove thai a single copy had got to a single person of the lower ratings. How could persons be incited by an article they had never read?
This paper never got into the hands of naval ratings.
– That is not admitted; but it was a part of the contention of counsel for the defence. The Crown did not attempt to prove that, because it was not essential to its case.
– The position, in that case, as the Opposition sees it, was that Truth - as it stated itself - was anxious to eliminate certain trouble in the navy, and gave good advice to the authorities; what it published was not incitement to the lower ratings to mutiny, but incitement to the naval authorities to take steps to allay discontent in the navy with regard to certain pay and allowances. The authorities, taking the advice, removed the cause of the trouble, and then charged Truth with sedition. The publisher of the paper, who knew nothing about the article, was arraigned before the court and charged with having incited to mutiny. Any one who deliberately sets out to incite the troops of this country to mutiny should be arraigned before the court, and tried by his peers but it is grossly unfair that a man, because his name appears as the publisher in the imprint, should be prosecuted for the publication of matter that “ is likely to seduce any person serving in the King’s Forces from his duty and allegiance”. Because the proposed new sub-section will permit of a grave injustice being done to many publishers in this country we object to it. We are told by the Assistant Minister that such men will be tried by a jury and judge and will have a fair trial. However we know that often a man when brought into court has his character maligned to such an extent that even when he is found not guilty many people believe that there must have been something in the charge or the Government would not have instituted proceedings. We want to prevent the arraignment of any innocent man; we do not want the Government to safeguard any man who sets out knowingly to seduce or to incite to mutiny any member of the King’s Forces. The word “ knowingly “ which appears in the Principal Act has been deliberately omitted from this proposed new sub-section, because the Government desires to broaden the power of the authorities so that they will be able to drag into their net men who are innocent of any action that will incite to mutiny, or be likely to incite to mutiny. The inference to be drawn from the speech of Senator Pearce is that a mistake was made in inserting the word “ knowingly “ in the Principal Act, and that in Truth’s case it should have been possible to convict the publisher and fine him heavily, as would have happened had the law been what is now proposed.
Motion (by Senator Sir George Pearce) put -
That the question be now put.
The Committee divided. (Chairman - Senator B. Sampson.)
Majority . . 24
Question so resolved in the affirmative.
Clause, as amended, agreed to.
Clause 7 -
Section 30ab of the principal act is repealed and the following section inserted in its stead: - 30ab (1) If a Police, Stipendiary or Special magistrate is satisfied . . . that any person has in his possession or custody any documents relating to an unlawful association, or has knowledge or information relating to such an association, the . . . magistrate . . may . . . authorize any constable to serve upon that person … a notice in writing requiring the person upon whom the notice is served to -
Any person who without just cause (proof whereof shall lie upon him) -
gives any information required in pursuance of this section which is false in any particular, shall be guilty of an offence.
– The original act provides that the Attorney-General may require a suspected person to answer questions, furnish information, and allow the inspection of documents. The bill proposes to transfer that authority from the Attorney-General to a police, stipendiary or special magistrate. I give notice of my intention to move that paragraph d of sub-section 2 of proposed new section 30ab be left out and that the following new sub-section be inserted in its stead - “ 3. Any person who gives any information required in pursuance of this section which is false in any particular shall be guilty of an offence.” Paragraph d is governed by the introductory words “ Any person who without just, cause (proof whereby shall lie upon him)”. Under my proposal a person who is charged with having given false information will not be subject to the previsions of sub-section 2 in regard to the onus of proof.
– The words “or has knowledge or information relating to such an association “ are far too drastic in that they leave the way open to abuses. At times of excitement - and only at such times will this provision be put into operation - a person might suggest to a magistrate that another person against whom he has a grudge has information relating to an unlawful association, whereupon the magistrate could call upon that person to answer questions, furnish information or produce documents for inspection. Even if it does not take us back to the days of the Inquisition, such a provision certainly means the subjection of suspected persons to “third degree” methods which hitherto have not been introduced into Australia. I therefore move -
That the words “ or has knowledge or information relating to such an association “, sub-section 1, proposed new section 30ab, be left out.
– I support the amendment because the inclusion of the words referred to by the
Leader of the Opposition (Senator Collings) might easily lead to the introduction of star chamber methods. We do not wish the way to be left open for the employment of either the old time French lettre de cachet or the modern American “ third degree “ practice. In the United States of America innocent persons are sometimes subjected to atrocious treatment in order that information may be wrung from them. A man may be for 30 or 40 hours subjected to almost continuous questioning, or it may be that policemen merely walk through the room without questioning him at all. At- first sight the latter method may not appear to be a form of torture, but the strain becomes more and more intense as the hours pass. Whilst the Labour party does not desire to obstruct the law, it wishes to safeguard hh innocent, person against methods which may be adopted by those who have a vested interest in procuring a conviction. The police force, has in one sense, a vested interest in procuring convictions. Men, Australian-born, but not having the Australian spirit, may go to any lengths to obtain a conviction in order to gain promotion in the police force. Why is it necessary to insert the words “ without just cause”? What is meant by “just cause “ ? A person may have a cause, and may give his interrogators certain reasons for being unable to give acceptable answers, but the proposed new subsection places upon him the onus of proving the justice of his cause. The police may take the view that the cause is not just, although the unfortunate individual lias given an explanation which, in his opinion, is perfectly correct and proper. But if he refuses or fails to answer questions put to him, to furnish information, or to give his approval in writing to the police to obtain documents in his possession, he will be guilty of an offence and be subject to imprisonment for six months or to a fine of £100. The new clause begins with the statement that if a police stipendary or special magistrate is satisfied by information laid before him by any person duly authorized . . . Will the Minister explain the significance of the words “ any person “ ? Can the Attorney-General empower any person under this clause, regardless of whom he may be, to collect information upon the receipt of which another person may be taken into custody? Such a person may be a “pimp or informer, or a low-down scoundrel. A police force has been established to do this class of work, but apparently any person whatsoever may now be enlisted to obtain information against a citizen in return for a few pieces of silver.
– Such person must be authorized by the AttorneyGeneral.
– The AttorneyGeneral may authorize a superintendent of police, who in turn may in a roundabout way use persons other than the police. The police may direct a series of questions, either orally or in writing, to a suspect, and he must answer them. The Labour party considers that the proposed powers will make it possible to bring within the scope of the measure individuals associated, for example, with the trade union movement. They may be quite respectable citizens of the realm, but in time of industrial trouble they may experience the harshness of this law.
– They have nothing to fear from this legislation.
– But they may be charged with being members of an unlawful association.
– Not a bona fide trade union; only those person = who live on the trade unions - the parasites - need fear this legislation.
– Presumably the parasites will be declared unlawful associations. That is a silly and puerile statement. The honorable senator pretends that the parasites will be the only class affected. The Labour party is based on the trade-union movement, and I am in close touch with many industrial organizations in this country. I admit that a few persons associated with industrial, social, and political organizations, may be termed parasites, but, on the other hand, there are many earnest men who have spent a life-time to their own detriment in unselfish efforts to ameliorate the conditions of those whom they represent. They see a danger that in a time of industrial strife, when they are battling to obtain better conditions, this legislation may be used against then] To pretend that the measure will be confined to the parasites is sheer “ bunk “. The Australian Council of Trade Unions met in Melbourne to-day; the delegates to that conference represent thousands of persons and they are performing really useful work in this community. They have a right to discuss the Crimes Bill, and they have decided that it is a dangerous measure, which can be used to imprison men who are working on behalf of the industrial classes. The Minister maintains that safeguards have been provided. What are they?
– Is the honorable senator afraid of the bill?
– My opposition is not actuated by personal fear. Justice and right and the administration of the law constitutionally placed on the statutebook, are the considerations that are involved. The freedom of the individual should not be prejudiced in any way. Such drastic amendments to the Crimes Act, in order to safeguard Australia, are unnecessary. The trade-union movement of Australia is law-abiding and it is composed of citizens who are held in high esteem. Respectable and hardworking persons in the movement fear this measure, and honorable senators should pay heed to them and to their representatives, who are endeavouring to show where the dangers lie. I trust that the Minister will explain the need for this legislation.
– Minister for External Affairs) [6.0]. - Honorable senators who support the Government are just as anxious and determined as is Senator Brown to protect the bona fide trade unions of this country. This bill will help to shield them from a menace against which the trades unions themselves have had to take action - the Communists, who are endeavouring to whiteant the trade union movement in Australia. I emphasize that the trades unions themselves and. some trades councils have been compelled, for their own protection, to take drastic action against Communist organizations. Senator Brown should be aware of that. Quite recently the Melbourne Trades Hall Council declared that the Council Against War, an organization promoted by the Communist party in Melbourne, has anti-trade union objectives, and even outlawed certain of its own officials because of their membership of that body.
– But the trade unions did not ask the Government to give greater powers to the police.
– The honorable senator pretended to believe that this legislation is directed against trade unions. Far from being so, it is directed against the enemies of trade unions. Senator Brown knows full well that many unions have been obliged to expel some of their officials because they recognized them as being agents of communism, seeking to white ant the trade union movement. The legitimate trade unions do not lend themselves to propaganda for the overthrow of government by force or violence, which is the object of the Communists. If the Government can stamp out this menace, no organizations should be more grateful to the Government than the trade unions. The Communist bodies are like the chameleon in that they change their colours. Whenever one is declared an unlawful body it suddenly disappears, only to bob up again under another name. Nevertheless, the funds, books and assets are all by some mysterious method transferred from one to the other. Every country which has taken action against the Communist organizations has experienced the difficulty of tracing them from one name to another. The clause under discussion will overcome this obstacle. The officials of the organization, when it goes underground, know full well what becomes of the books and assets, and this proposed new sub-section is’ to enable the law to call upon them to answer certain questions. Both Senator Collings and Senator Brown referred at length to the first part of the sub-section, but did not read the nature of the questions to be directed to such persons. Paragraph el. for example, deals with - any money, property or funds belonging to or held by or on behalf of an unlawful association, or as to which there is reasonable cause to believe that they belong to or are held by or on behalf of an unlawful association.
No inquisitorial prying into a person’s private property or funds is contemplated. The subject of the examination will be the money and documents of the organization which has been declared unlawful and has gone underground. This is for the protection of society and of bona fide trade union organizations against the white-anting activities of Communists. Paragraph e reads -
Any payments made directly or indirectly by, to, or on behalf of, any unlawful association, or as to which there is reasonable cause to believe they are to be made.
A person may be asked whether any money has been received from Russia, and, if so, what became of it. There have been instances in which movements aimed at the overthrow of society and the white-anting of trade unionism have been financed by money from the head of the Communist organization in Russia. Paragraph / reads -
Any transaction to which an unlawful association is or is reasonably believed to be a party.
If the person interrogated has never been associated with an unlawful organization what will he have to fear if called upon by a person authorized by the AttorneyGeneral to answer these questions? All he need say is that he is not, and has never been, a member of an unlawful association. If he has never handled the money or the property of an unlawful association what disability will he be under? He should welcome the opportunity to say that he has never had any association with such organizations. If honorable senators opposite wish to protect bona fide trade unions they should support this clause. Trade unionists have had to protect themselves against the Communists and this provision will assist them. If honorable senators opposite wish, to shield those who are white-anting the trade union organizations in Australia by trying to divert them from their perfectly legitimate work of improving the lot of the workers, and to convert them into revolutionary organizations they will oppose this clause. This provision is aimed at that class of individual, and not at the bona fide- trade unionists.
.- If the Leader of the Senate (Senator Pearce) and some of those who are supporting him will make provocative speeches they must expect provocative replies from honorable senators in Opposition unless they protect themselves behind the cowardly gag. No one was more interested than I was to hear th« Leader of the Senate become the protagonist of trade unionism.
– The honorable senator knows that I have helped to form trade union organizations, and that I pioneered the movement in Western Australia.
– I know that, but surely the right honorable gentleman does not wish me to go into the ancient * history of his association with the trade union movement. If he does, I am quite ready to do so. We are asked to support this clause because it is aimed at the enemies of the trade union movement. It is true that that movement has to protect itself from the white-anting tactics of Communists, but as the Leader of the Senate knows, it has never asked the Government to help it, and to penalize Communists’ organizations by introducing such a damnable measure as this amending Crimes Bill. If this measure is framed to protect the trade-union movement in Australia, why are so many trade unionists from one end of Australia to the other up in arms against it? Why have resolutions, asking us to oppose it, been received from all parts of the Commonwealth.
– Because those who support them do not understand the bill.
– If the bill, and particularly clause 7, is not an attack upon the rights of the people, why have some of the greatest legal luminaries in the Commonwealth written to congratulate me upon my second-reading speech in opposition to it? Honorable senators opposite may smile, but I have received complaints from various portions of the Commonwealth concerning the measure, and also congratulatory references to the stand I am taking. I remind the Leader of the Senate, who said that these subversive movements have slipped underground, that, on numerous occasions, I have asked the Government to take action against certain subversive organizations, but, because their members support the policy of this Government, nothing has been done. This measure will deliberately drive underground liberty-loving persons and those who do not see eye to eye with the Government. They should be allowed to come into the light of day, and allow commonsense Australians to assess the value of their propaganda. The Labour party is endeavouring to outlaw these people and, as I have stated in this chamber before, T. had the privilege of drafting every resolution framed in the Queensland Labour movement with the object of excluding Communist organizations.
– Why should the honorable senator oppose the clause.
– We do not deny to Communists the right to use their propaganda or to build up their organizations, but we do deny to them the right to use the machinery of our organization for that purpose. The Leader of the Senate read only a portion of the proposed new sub-section, and in such a way that I was made to appear almost a scoundrel in moving that certain words should be eliminated, but he adroitly stopped at a certain point. He did not read proposed sub-section 2 -
Any person who, without just cause (proof whereof shall lie upon him) -
In other words, the accused is not to be given British justice and presumed to be innocent until proved guilty -
Who is to judge whether questions have been answered truly and fully?
Sitting suspended from 6.15 to S p.m.
– It is extremely probable that third degree methods will be applied to persons charged under this provision. A man may quite innocently fail to disclose all the information which is in his possession, or give answers which are in some respects false.
– It is proposed to amend that portion of the proposed new section.
– My concern is io induce the committee to delete the words “ or has knowledge or information relating to such an association “. It is not fair to pillory people who whilst not being actual participants in an offence may, because of some indirect connexion with the individuals concerned, have secondhand information or knowledge which the Government desires to secure. There is, very serious danger that innocent individuals may be the victims of a. prosecution. Who is to judge whether information given by a person is true or false? Although a person so charged may truly end fully answer six-sevenths of the questions put to him, he may be judged guilty of an offence if he fails to answer truly and fully the remaining one-seventh of the questions. I urge the Assistant Minister (Senator Brennan) and the Leader of the Senate (Senator Pearce) to take counsel together and endeavour to make this provision not quite so savage as it is in its present form.
– I take it that the Leader of the Opposition (Senator Collings desires the deletion of the words “ or has knowledge, or information relating to such an association”, appearing in proposed sub-section 1. I invite the honorable gentleman to bear in mind that this somewhat lengthy section provides that before any action is taken a police, stipendiary, or special magistrate must be satisfied - by information upon oath laid before him by any person duly authorized by the AttorneyGeneral, that any person has in his possession or custody any documents relating to an unlawful association . . .
If he is so satisfied he may authorize any constable to serve upon such person a notice in writing requiring him to answer certain questions. The honorable gentleman, I take it, does not object to that part of the proposed section.
– My objection is to the inclusion of the words “ or has knowledge or information relating to such an association “.
– Those words were inserted for the reasons given by the Leader of the Senate. The officials of a certain organization had, without the connivance or knowledge of the rank and file, committed it to affiliation with the Red Internationale. I admit that the proposed new section is somewhat far-reaching, but I feel sure that it will be administered in accordance with the best traditions of English law. It must be remembered that the whole of the working of these unlawful organizations is underground, and that they are connected with similar organizations in other countries in devising the most effective means to undermine society without their members coming individually within reach of the law. Exceptional measures are necessary to deal with exceptional circumstances. I admit that in taking power to interrogate persons who may have knowledge or information relating to such organizations, we may be taking a fairly advanced step in English law. But what happens when that step has been taken? The police, stipendiary or special magistrate, as the case may be, may by writing under his hand, authorize any constable to serve upon the person concerned a notice in writing requiring him to -
Relating to -
The Leader of the Opposition has asked who is to judge whether a person so charged is guilty of an offence. This matter must be decided in open court.
– A person may answer truthfully six-sevenths of the questions put to him, but because he fails to answer the balance of the questions hemay be judged guilty of an offence.
– Does not that apply to every case that comes before our courts? The honorable senator’s objection is really directed to some of the provisions of the proposed new sub-section 2, which enacts that -
Any person who without just cause (proof whereof shall lie upon him) -
refuses or fails to . answer truly and fully any questions put to him in pursuance of this section;
refuses or fails to furnish information required in pursuance of this section; or
refuses or fails to allow the inspection or the taking of copies, of documents as required in pursuance of this section; or (d) gives any information required in pursuance of this section which is false in any particular, shall be guilty of an offence.
May I remind the honorable senator again that prosecutions under this act will be heard in a properly constituted court of law, and, although I admit that this sub-section is somewhat drastic, the Government deems it necessary for the suppression of certain organizations which we know exist in this country.
– I support the amendment moved by my Leader (SenatorCollings). We strongly object to the provision which enables a prosecution to be launched against any person on the word of an informer. Speaking with some knowledge of the extreme schools of political thought, I contend that special legislation is not required to deal with any political organization in this country. Unless a person interrogated answers questions “ truly and fully “, he is likely to be taken into custody. The word “ fully “ has a very wide meaning. A man may give all the information he has in his posesssion and yet the prospect may remain that he will be adjudged guilty of an offence in not telling all that his accuser, or his informer, thinks he knows. I am very pleased that paragraph b of proposed sub-section 2 will be amended. This paragraph refers to any person who without just cause “refuses or fails to furnish information required in pursuance of this section “. A man may do his utmost to give all the information he has in his posesssion and yet fail to satisfy this provision. He would again be at the mercy of his accuser. Generally speaking, this clause goes too far. Those who have taken any trouble to study the various associations connected with schools of extreme political thought know that there is no need for this legislation. It is very interesting to hear supporters of the Government say that this legislation will benefit the unions. The unions do not want it. In his innocence, one honorable senator remarked that the big unions were not against this legislation. My experience indicates to me that they are against it.
– How many unions have seen it?
– Quite a large number. No union has asked for this legislation. I should like to know who asked for it? I do not think any honorable senator asked for it or thought it was necessary. However, supporters of the Government naturally feel inclined to support it in the belief that some day it may be very valuable, in the event of the Labour party adopting an extreme attitude on any particular issue. It may happen that the Labour party may take a firm stand on a vital political issue in the future, and under this legislation be declared an unlawful association. The whole bill is unnecessary. In any case, this proposed new section, particularly the paragraphs I have mentioned, should be re-cast.
– I have no objection to the clause. At the present time, the High Court is the only authority that can say whether an association is unlawful. The first part of the clause to which the Opposition does not object relates to the possession or custody of any documents relating to an unlawful association. The part to which the Opposition takes exception refers particularly to an individual who may know all about the workings of an unlawful association, although, merely because he has not subscribed in writing to its principles, be is not a member of that organization. Such an individual could be just as great a menace to the community us one who was actually a member of the association; he could do its insidious work just as effectively outside the organization, as if he were a member of it. Although, not being technically a member of the organization, he would not have its documents in his possession, he would have much the same knowledge and information a3 a member of it. He may even be a greater menace because of his non-membership, but there would be no way of getting at him if the amendment moved by the Leader of the Opposition (Senator Collings) were carried. Such an individual equally with a member of an organization who actually possesses incriminating documents, must be brought within the scope of the law.
– I ask the Assistant Minister (Senator Brennan) whether it would not be possible to prosecute in the ordinary way the man who commits a crime within the meaning of this proposed new section. Surely it is not beyond the legal resources of the Government to draft a provision that such a man shall be charged and brought into court. Under this clause, power is given to a police constable to demand from any person answers to certain questions.
– Not necessarily a policeman.
– Under this provision, a man would not be brought before the court and charged.
– He would be; tha constable is authorized to summons him.
– But prior to being brought into court he must answer certain questions.
– If he answered the questions, he would not.be brought into court.
– On the other hand, the Assistant Minister says he will be brought into court.
– That would depend on the answers.
– This clause authorizes a constable to go to any person and require him to answer certain questions submitted to him in writing. He may submit to me, for instance, a series of questions, and I shall be obliged to answer them. If I answer them satisfactorily, according to Senator Pearce, I shall not be brought into court, but if I should fail to answer them, or fail to show just cause for not answering them - the proof of which will lie upon me - then I shall be proceeded against in court, where, I assume, further questions will be put to me. If a man commits a crime, why should he not be charged in court in the usual way? What is the need, for this hole-and-corner interrogation by a constable? The Assistant Minister has told us repeatedly that this legislation deals with unusual people, and therefore must embody unusual procedure. Yet another honorable senator has interjected that similar procedure is followed now. This provision, I submit, is puerile and stupid. According to the Assistant Minister and Senator Pearce, a police, stipendiary, or special magistrate may authorize a constable to question any person who is suspected of being connected with an unlawful organization. The Leader of the Opposition (Senator Collings) has pointed out that such steps can be taken in respect of trade union officials in times of industrial trouble, when a union’s activities mav be declared seditious. If the individual answers the questions put to him, he will not be brought into court, but if he does not answer them, he will be prosecuted. Honorable senators opposite call this British justice. Under this clause, it will be possible for the Government to get hold of some poorbeing who advocates a new social system which he believes will establish a Heaven on earth. Having had many years of experience in the Labour movement, J can assure honorable senators that many individuals whom they profess to fea as a menace to tho social order are more like characters from a comic opera than a real danger to the community. The Government is proposing this legislation in the hope that it may be of use at some future date - perhaps at a time when the workers are kicking against those who exploit them.
– The issue involved in the proposed new section is simple. It refers to any person who has in his possession any information or documents relating to an unlawful association. Such a person may be called upon to divulge that information in the public interest. To those who find this provision offensive, I point out that if it is struck out, any citizen who was in possession of information which might be highly useful in the discovery and punishment of members of unlawful associations, could not be required to divulge such knowledge. An unlawful association is an institution specially created for the purpose of upsetting our social order. Such an organization is a menace to society.
– It is one which believes in violence and revolution.
– It may organize picketing in times of industrial trouble.
– It is an organization whose object is to cause revolution. Australians live to-day under one of the finest social orders that man has yet conceived, and such a precious possession cannot be held and’ enjoyed unless, as the Leader of the Opposition has told us over and over again, we are eternally on the watch. When our social order is threatened by organizations, or persons of diseased mentality, who seek to undo the work of great minds that have gone before us, overturn the present social order, and cause turmoil and bloodshed, are we not justified in seeing that such agencies of evil are brought to book and stamped out? But, according to those who regard these provisions as offensive, if a person has knowledge of the existence of such organizations and of their fell designs, be may nurse such knowledge and yet not be guilty of any crime against society. If, for instance, John Smith knew that a communist organization existed, and he had documentary evidence of its intention to attack some section of society, should he be free to withhold that information? The law proposes to make John Smith answerable for his criminality should he not give information which would lead to the discovery and punishment of such an unlawful association. Is there anything wrong in that? We are frequently told that anything which menaces the public should be attacked at its very root. When the subject of war is mentioned, we are told that what is wanted is the abolition of the causes of war. Similarly, unlawful associations must be attacked at their root. Every patriotic citizen should be required to give any information in his possession regarding the existence of such associations.
– Whether or not a person is patriotic, he should be required to give the information.
– Two classes of citizens are involved. There are those well-disposed persons who are reasonably well satisfied with the existing order of things and would willingly give information regarding unlawful associations, and there are those other persons in the community who would be loath to come forward with the information. To the extent of their unwillingness to give information, the organization would he free to carry on its machinations. Unlawful organizations should not be allowed to escape for, unless they are dealt with effectively, they may overturn society. There is nothing wrong with a proposal which seeks to control them.
– If the discussion of this clause has done no more than give the committee an opportunity to listen to Senator Lynch, it has been worth while. I am astounded that a good Irishman like the honorable senator, with the knowledge of all the wonderful history of his illustrious country, should be found championing that portion of this proposed new section which I wish to have deleted. The retention of the words which I seek to have removed from the clause will give to the Government an opportunity to create a squad of Pigotts and Careys - Senator Lynch knows to what I refer - to go round this country and rope in those persons who in any way have rubbed shoulders with people belonging to what are termed unlawful associations. Apparently, Senator Lynch has not read the proposed section, and therefore I propose to read it for his information -
If a police, stipendiary, or special magistrate is satisfied by information upon oath laid before him by any person duly authorized by the Attorney-General -
Any scoundrel in the community whom t he Attorney-General chooses may lay the information; it does not say “ any person of reputable character “. that any person has in his possession or custody any documents relating to an unlawful association -
I do not take exception to action directed against an unlawful association, although when I asked that Eric Campbell and the New Guard should be -dealt with, the Senate merely smiled and went on its way. If a savage clause is necessary to deal with one kind of organization, why not go the whole hog and deal with all associations, including those of the kind led by Oswald Mosley, Hitler, and Mussolini? Communist organizations appear to be regarded differently by the Government at different times, for, while they are the subject of savage legislation, strangely enough, the Government does not object to taking a deposit of £25 from a Communist candidate for Parliament, who receives less than a certain proportion of the votes cast. A Communist may appeal to the electors and if, by some stroke of fortune - or perhaps of misfortune - he receives sufficient votes to be elected, he may take his place in this Parliament. If the clause were merely directed against unlawful association, the Opposition would say “ Good luck to it “. I remind the Government that it has tried several times to deal with unlawful associations, but has failed each time. Several attempts have been made to deport certain persons, but when the tests came, the Government found that it could not deport them. The Opposition objects, not to unlawful associations being dealt with, but to roping in unfortunate individuals who are covered by the plain, simple English words “ or has knowledge or information relating to such an association “. Those words might refer to me, for I have knowledge of certain organizations. Although I have no connexion with any unlawful associations, and am active in my opposition to them, under this bill I may be called upon to give information regarding them. That is all right. If called upon to do so, I shall give any information in my possession; but if I do not answer truly and fully to the satisfaction of the individual who is conducting the inquisitorial investigation, I can be held to be guilty of a misdemeanour and be brought within the scope of this legislation. The onus of proof is cast on the accused individual - a procedure which is subversive of what we are pleased to call British justice. I do not know that British justice is . any better than the Australian justice for which I am striving. The placing of the onus on the accused individual is a most savage form of legislation, and I cannot understand how good Australian senators can sanction it. Least of all can I understand Senator Lynch approving of a bill of this character.
– There appears to be two questions involved in this proposed new section. First, there is the general purport of the section, which is that any person who has knowledge or information relating to an unlawful association shall be compelled to divulge it. To that the Leader of the Opposition (Senator Collings) object’s. The second question is that of the onus of proof.
I cannot see anything very reprehensible in this provision. Indeed, there are other clauses in the bill which are more arguable than this one. Clause 7 does not provide that, if in the opinion of the Attorney-General, some person has in his possession information relating to an unlawful association he should be “ hung, drawn and quartered,” but only that he shall answer certain questions put to him.
– Supposing he has not the information?
– H - HUGHES. -I shall deal with that point later. It is useless for honorable senators opposite to become excited about something which does not call for excitement. The clause provides that an individual who is supposed to know something about an unlawful association may receive a notice from the Attorney-General calling on him to answer certain questions, or to furnish some information, or to produce for inspection certain documents relating generally to property and deeds with which an unlawful association is concerned. There is nothing very drastic or harmful in that. In the days of Hammurabi, about 2,000 b.c., and even long afterwards, the penalty for conspiring with the enemy would have been, briefly, death. By degrees the law has become more full and more technical, with the result that the minds of men become confused as to what it really does mean.
– Let us put in the death penalty, and make a job of it.
– I am sure that that would not be in conformity with the wishes of the Senate, or with present day sentiment. The Opposition also objects to the onus of proof being placed on the accused person.
– Does the honorable senator object to that provision?
– No. Sub-section 2 of the proposed new sec-‘ tion 30ab, provides that any person who, without just cause, proof whereof shall lie upon him, refuses or fails to answer truly and fully any questions put to him, or to furnish information or to allow documents to be inspected, or gives false information, shall be guilty of an offence. It is the person himself who causes the offence. All that he is asked to do is to furnish any information which he has in his possession relating to an unlawful association. So long as he gives the particulars and answers the questions put to him, he has nothing to fear. That is the general purport of this sub-section. I cannot see that it can adversely affect any one who has no unlawful intent, and is not bound up with an unlawful association.
– The police may assert that a person is connected with an unlawful association when he is not. He must prove his innocence.
– There is nothing particularly drastic or reprehensible in the general terms of this proposed section. On the other question, that of proof, I often do not consider it, wise for Parliament to throw the onus on an accused person to prove his innocence. The general attitude of British law has been that a person is innocent until he is proved guilty, and while there may be cases in which it is exceptionally difficult to obtain proof, and is almost essential to place the onus of proof on the accused, this should be done with discretion, and as seldom as possible. This proposed new section, however, has been phrased to protect the accused person. If the words “without just cause, proof whereof shall lie upon him “ were omitted, and the clause read “ any person who refuses or fails to answer, refuses or fails to furnish information, refuses or fails to allow the inspection, shall be guilty of an offence, penalty £ 100,” there would have been no safeguard whatever for the man who could show that he had “ just cause “ ; those words are, in effect, his protection. If a person can show “just cause,” this penalty will not be enforced against him. It is a safeguard to enable a person who is not an offender, but who is suspect, to show that he had just cause for not answering, or for not furnishing information, or for not allowing the inspection.
– If this provision is to safeguard the innocent, why has it not been embodied in other laws?
– It is quite competent for the committee to omit the words “ without just cause, proof wherof shall lie upon him.” But I would like to ask the honorable senator two questions: would he not prefer those words to be retained, seeing that they enable a person who is charged to show “ just cause “ and thereby escape the penalty ?
– There is no suggestion to leave out the words “ just cause “.
– The honorable senator would doubtless like to retain the words “without just cause” and strike out the words “proof whereof shall lie upon him”. But if a person desires to obtain the benefit of this lenient provision, he should be prepared to prove that he deserves it.
– Often the person charged is the only one who can supply the proof.
– The provision clearly mitigates the rigour of existing sub-section 2, which provides that “ any person failing or neglecting to answer a question shall be guilty
– I come now to my second question to Senator Brown. If the words “ without just cause, proof whereof shall lie upon him “ were omitted, and the following proviso were inserted at the end of the clause : -
Provided that if such person can prove just cause he shall not be liable under this, section. would the honorable senator not be perfectly satisfied with that? He would be unwise if he were not. I do not very much like the form in which this particular proviso is framed. It does suggest that the onus of proof is thrown upon the person charged to prove his innocence. However, upon looking at the words carefully, honorable senators will find that this provision is one to enable the person so charged to have a real opportunity to answer the charge by proving “just cause “.
– That is this week’s best joke!
– It may be a joke to the honorable senator; I fail to see any humour in it. An opportunity is given to a man who is charged to clear himself. If the honorable senator prefers to take away that opportunity, he will be doing a disservice to the people whom this provision is designed to assist.
– - Honorable senators seem to experience great difficulty in understanding the attitude of the Opposition on this matter. I have moved that certain words be deleted, and Senator Duncan-Hughes, in his best legal manner, has proceeded to build up a case for the retention of other words which I have not mentioned and which the committee has not yet reached. We shall have something to say later about the provision throwing upon an accused person the onus to prove, his innocence. While Senator Duncan-Hughes was speaking, Senator Pearce interjected that often the accused is the only person who is able to show that he is being unjustly accused.
– That he has just cause for not answering the questions.
– Before it is known whether a person can show that he is innocent, the authorities have accused him in writing of being in possession of certain information. Then the onus is thrown upon him to prove his innocence, but he is already nine-tenths along the road to condemnation and punishment by the very fact that the authorities have accused him. I am of the opinion that honorable senators opposite, or at least those who have addressed themselves to this provision, are not seriously interested. It is common talk in the lobbies that this bill will not be proceeded with, because it is anathema to certain persons holding the highest positions in the House ofRepresentatives, and that the Senate is debating the bill merely because there is no other business to occupy its attention.
– I can assure the honorable senator that such a report is not accurate.
– I am sorry to hear it.
.- I fail to see any justification for the amendment moved by the Leader of the Opposition (Senator Collings) and I shall vote against it. I was particularly gratified to hear Senator DuncanHughes explain the general effect of the words “ without just cause “. But I ask the Minister to explain in detail the significance of those words. For example, will a statement made under the seal of the confessional be deemed to be just cause for refusing to answer a question? Or would a person be entitled to say, “I shall not answer this question, because it might incriminate me “ ?
– If the Minister would indicate what would, be a “ just cause” he might remove the doubts in the minds of the Opposition. There is room for some definition. A magistrate in Western Australia might interpret the words differently from a magistrate in Queensland, and in turn both might disagree with the interpretation of a magistrate in the Federal Capital Territory. The Minister presupposes that just causes will exist for persons refusing to answer questions. Will the Assistant Minister explain the meaning of the words “ just cause “ ?
– Section 30ab of the principal act is being repealed, and this proposed new section is to be inserted in its stead. So this provision is not entirely new. The context in which it will appear is important. Section 30ab is included in part LT a. of the principal act by the amending act of 1932. The heading to part II. is “ The protection of the Constitution and of public and other services.” At first unlawful associations are defined, and the procedure by which the Attorney-General may apply to have a certain organization declared to be an unlawful association is then set out. Section 30ab, which this section replaces, then provides certain methods of proof dealing with offences directed towards the overthrow of the Commonwealth. The proposed section does not differ greatly from the section which has been in existence since 1932, and which is being amended. Although that section has been operative for three years, none of the terrible things which the Leader of the Opposition (Senator Collings) says will happen has occurred.
– Because certain prosecutions failed.
– This proposed new section may be slightly stronger as to the method of proof; but, although the existing section has been on the statute-book for over three years, there have not been any prosecutions under it. In reply to the point raised by Senator Leckie, I may say that, generally speaking, the determination of what is or what is not a “ just cause “ rests with the magistrate.
– - And he would have a long list of decisions to guide him.
– Certain wellknown principles are laid down, such as the confidence between a solicitor and a client, and between a doctor and a patient, information got under the seal of the confessional. A husband and wife are entirely protected. A father and child are not completely protected, although there may be circumstances under which prosecution would be withheld. A mother may give information against her son, but she may say frankly and freely, and admirably as most of us would say, that she will not incriminate him. I am not prepared to say at this juncture whether that would be a “ just cause “ within the meaning of the proposed new section. Those are some possible instances which may come before a magistrate for determination as to whether or not there was a “just cause.” Under no circumstances can a perso* be compelled to answer in a court of law, or out of it, questions which may incriminate him.
Question - That the words proposed to he left out (Senator Collings’ amendment) be left out - put. The committee divided. (Chairman - Senator Sampson.)
Majority . . . . 21
Question so resolved in the negative.
– Honorable senators in Opposition object to the subversion of British justice contained in the words “proof whereof shall lie upon him.” Honorable senators supporting the Government are already aware that we do not believe that the proof should lie upon the accused. Those who bring a man before a court should prove his guilt, and not ask the accused to prove his innocence. I move -
That the words “ (proof whereof shall lie upon him),” proposed sub-section 2, be left out.
– Generally speaking, the onus of proof rests upon the accuser, and not upon the accused; but there are instances when that principle is departed from, and one of which is when the information sought lies almost exclusively in the possession of the person who is interrogated. Proposed subsection 2 is an exception to the general rule, but in a measure of this nature the departure from the general principle is justified.
– As I understand that portions of this measure are based upon an act passed thirteen years ago in the British Parliament, I should like to know if a provision similar to the proposed new section dealing with unlawful associations is embodied in the British act.
– T - The portions of the bill relating to official secrets have been taken from the British act, but the proposed new section now before the committee is not contained in British legislation.
– If the words are left out, the sub-clause will then read -
Any person who, without just cause -
refuses or fails to answer truly any questions put to him in pursuance of this section . . . shall be guilty of an offence.
Does not the Assistant Minister (Senator Brennan) consider that even if the words complained of were deleted, automatically the onus of proof would lie on the person charged? I suggest this because the Grown, in laying a charge, would follow the wording of the section, and in practice the onus of proof does not always lie on the Crown. Apart from anything which may be in a statute under which a charge is laid, certain events may take place during the trial, requiring the person charged to show proof.
– I do not go so far as the honorable senator. In cases such as those suggested by him, the prosecution would be required to establish a prima facie case. The honorable senator will know that in some acts, the mere averment of the prosecution is prima facie evidence and the person charged is required to rebut the charge. I think that in the absence of the words “ proof whereof shall lie upon him it would be impossible, in some instances, to establish a prima facie case.
– I see nothing objectionable in the provision as it stands. It states that any person who refuses to answer truly and fully questions put to him, or refuses or fails to do any of the other things required under this proposed new sub-section, shall be guilty of an offence. The inclusion of the words “ without just cause “ merely gives the person questioned an opportunity to furnish a satisfactory explanation in writing. If he does this may we not assume that he will clear himself of any’ charge that may have been laid against him?
, - There are one or two minor points upon which a word or two might be said. The words “ without just cause “ simply mean that the person charged must satisfy a police, stipendiary or special magistrate, that he has not been guilty of an offence under this section without good reasons. If honorable senators will turn to proposed new section 81a, sub-section 2, they will find the wording somewhat different. It enacts that if any person “without lawful authority or excuse “ does certain things he shall he guilty of an offence and liable to imprisonment for two years. There is no reference in that proposed new subsection to the onus of proof being upon anybody. Presumably the Government would supply it on the question of lawful authority, but it would be upon the person charged to show that he had an excuse for his action; so that without inserting the words “ proof whereof shall lie upon him “ as in the proposed new sub-section now under consideration, exactly the same purpose is effected. As to the other issue raised by Senator Leckie, I do not wish to mention all the possibilities attaching to the inclusion of the words “ without just cause “. That would be a matter for the magistrate to decide. I assume that if after the laying of a charge, the relevant documents passed properly out of the possession of the person charged, he would be able to give a satisfactory reason for refusing or ailing to allow inspection or the taking of copies of documents. In such circumstances the magistrate would probably regard the answer as satisfactory.
Question - That the words proposed to be left out (Senator Collings’ amendment) be left out - put. The committee divided. (Chairman - Senator Sampson.)
Majority . . . . 21
Question so resolved in the negative.
– I move -
That the words “or
gives any information required in pursuance of this section which is false in any particular . . be left out with a view to insert in lieu thereof the following sub-section: - “ 3. Any person who gives any information required in pursuance of this section which is false in any particular shall be guilty of an offence “.
The amendment is clear. The new section replaces a provision which was much more drastic.
– This particular proposal contains a number of points to which the Opposition objects. Wo have already mentioned those objections. At this juncture, I wish merely to point to the Assistant Minister’s (Senator Brennan) amendment at the end- of clause 7 as one result of the second-reading debate, and the contribution of members of the Opposition to that debate.
– The suggestion came from the honorable senator.
– I do not claim the credit for myself.I suggest that the action taken by the Assistant Minister is proof of the need for the scrutiny of measures by members of the Opposition. Ministerial supporters were quite content to accept the bill as it stood originally.
– That is not so.
– In none of the speeches by supporters of the Government was the need for a change of this character indicated. The fact that this alteration has been made at the eleventh hour shows, in my opinion, that many more amendments could have been made to the bill. These, I believe, will be made in the House of Representatives.
Amendment agreed to.
Question - That the clause as amended be agreed to - put. The committee divided. (Chairman - Senator Sampson.)
Majority . . 20
Question so resolved in the affirmative.
Clause, as amended, agreed to.
Senate adjourned at9.42 p.m.
Cite as: Australia, Senate, Debates, 27 November 1935, viewed 22 October 2017, <http://historichansard.net/senate/1935/19351127_senate_14_148/>.