19th Parliament · 1st Session
The President (Senator the Hon, Gordon Brown) took the chair at 3 p.m., and read prayers.
– ls the Minister for Trade and Customs aware that owing to the devaluation of the franc, the lavender industry in Tasmania is faced with annihilation because of unfair French competition? Will the Minister refer this matter to the Tariff Board with a request for an urgent review- of the position with a view to saving this industry from destruction?
present time I am considering representations that have been made to me in regard to the protection and preservation of the ‘ T.asmanian lavender industry. I have carefully considered a report of the Tariff Board on the matter and hope to be able to make a statement in due course.
– I direct a question to the Minister representing the Treasurer. Is it a fact that the Government has gwen consideration to the appreciation of the £1? If adopted, will this action have an adverse effect on Australian manufacturers? Is it expected that unemployment will result in consequence of the Australian manufacturers being unable to compete on overseas markets ? Is it expected . that primary producers and manufacturers will carry the total impact if the Australian £1 is appreciated ?
– The question is one of policy which I am not prepared to answer.
– Will the Minister representing the Prime Minister say whether the Government considers that one method that should be employed in re-establishing the value of the Australian £1 is to appreciate it? Is the Government now considering the problem, and is it a fact that a mass of information has been placed before it by experts indicating the effect which appreciation of the £1 would have on the Australian economy and the international repercussions that such action would cause ? Will the Minister also say whether it is not a fact that during the last election campaign both the present Prime Minister (Mr. Menzies) and the Treasurer (Mr. Fadden) stated that all that was necessary to restore the value of the £1 was to defeat the Chifley Labour Government ? Is it also a fact that at the moment Cabinet is divided into three warring factions due largely to the representation in the Cabinet of the Australian Country party, which is opposed to currency appreciation? If the Minister considers that the foregoing questions relate to a matter of Government policy, and for that reason lie does not desire to answer them at the moment, will he at least give the Senate an assurance that a full statement will be made on the matter, which is of considerable importance?
– It is rather amazing that the honorable senator should have mentioned three warring factions. I do not listen to gossip as a rule, but I understand that there are three factions in the Labour party at present. There are those who want to play with the Communists ; those who are afraid to fight the Communists; and those who want to fight the Communists. I assure the honorable senator that the Government takes a very serious view of spiralling costs. It is very worried about the lack of co-operation from the Labour party. It is very worried because certain individuals who have a vast influence with the producers of the things that we need, are not using that influence to help the people of this country, because, after all, regardless of our political affiliations, the people of Australia are our people and our responsibility. I suggest that the honorable senator should give me details of caucus discussions that took place when
Mr. Chifley was Prime Minister. Then, if there is any merit in the decisions that were reached, I shall be quite prepared to recommend them to my leader.
– I ask the Minister whether it is true that there is a cave of fascists and a cave of Communists in the present Government, and that the remainder are decent Liberals ?
– That question is not only futile and stupid, but also is grossly offensive, and is no credit to this chamber.
– I direct the following questions to the Minister representing the Minister for Health: - 1. In view of the fact that the Liberal-Country parties refused to separate social service payments from taxation when in opposition, will the Minister tell this chamber how he intends to convince the Australian taxpayer that payments made on behalf of the national health scheme to an approved friendly society or other insurance is not added taxation? 2. Can it be assumed that because members of the privileged class are able to pay for, higher medical benefits and thus obtain specialized treatment, they are considered by the Liberal-Australian Country party Government to be of greater value to the nation than to the wageearners? 3. Will, any adjustment be made to the basic wage to enable the wage-earner to insure his family on an equal basis with that obtainable under the national health scheme by the more privileged class of the community?
– The questions involve Government policy, and, as the Minister for Health is now working out a national health scheme, I shall he very pleased to bring to his notice the matters referred to by the Honorable senator. The Minister for Health will make an announcement on the Government’s health scheme at an appropriate time.
– A statement appeared in the press to-day that the President of Indonesia, Dr.
Soekarno, claimed that the whole of New Guinea, including Papua, belonged to Indonesia. “Will the Leader of the Government make a definite statement on behalf of the Government with regard to Dr. Soekarno’s reported claim and state that, if necessary, Australia will fight for its rights in that area?
– I do not think that this matter has yet been considered by the Government, but I am quite sure that it is very close to the hearts of the Australian people. New Guinea lias been sanctified by the blood and bones of our gallant boys who died there. This is one matter in respect of which we can speak with a united voice. That area is sacred to Australia.
– In view of the good features of the port committees which were responsible for the settlement of many minor disputes, for the maintenance of smooth working on the waterfront and a quicker turn-round of ships, will the Minister for Fuel, Shipping and Transport, state whether he will consider - re-establishing those committees, which were dissolved when the Stevedoring Industry Commission was disbanded? The committees served as a valuable liaison between the waterside workers, the stevedores and the shipowners?
– The matter is now being considered, and as soon as a decision is reached, the honorable member will be notified.
– Oan the Minister for Trade and Customs say whether an import duty of 2s. 6d. a square yard has recently been imposed on British rayon cloth, and whether the new duty is twelve times greater than the old one? Has the new duty been imposed for the sole purpose of protecting the Australian weaving industry? Is it true that there are at (present large stocks of British rayon goods in Australia? If so, will the Government do everything possible to prevent the tariff increase from being passed on to the Australian consumers in respect of stocks of rayon cloth already in Australia?
– This is a matter in regard to which I am sure that we can all take an Australian view. We must protect our Australian industries if they are able to compete on an economic basis. Fortunately there are matters which we can elevate above politics, and one of them is our attitude towards our own industries. The honorable senator was misinformed about the duty, which is to be ls. 6d. a square yard, not 2s. 6d. The original duty was l£d. a square yard. Honorable senators may have seen statements in the press that the increased duty will be calamitous. The same sort of thing was said when it was first proposed to place a protective duty on woollen goods, but we are now in the happy position of being able to compete with overseas woollen manufacturers, and even to undercut them. During the war, the rayon industry became an essential one, and certain undertakings were given by the Labour Government. I entirely approve of those undertakings, and the present Government is now honoring them. This is not a small insignificant industry. Over £3,000,000 is invested in it, and more than 3,000 persons are employed on conditions and at rates of pay which are the envy of people in other parts of the world. We wish to preserve those conditions, and we must protect our industries. I was expecting some one to ask me how this increase of duty would affect our undertaking to restore value to the £1. It will not affect the position at all. In this matter, the Government has adopted a recommendation made by the Tariff Board, which is a non-party tribunal that acts in a judicial capacity. Every interested party is given an opportunity, not only to give evidence before the board but also to be represented by advocates. This industry was established during a war and rendered very valuable assistance to this country in that war. Australia has never engaged in an aggressive war, but we may have to fight again to protect our way of life. If we have to do so, this industry will be of great assistance to us. All honorable senators will doubtless agree that we must preserve anything that we consider to be essential to the preservation of our way of life.
– Can the Minister representing the Minister for Works and Housing say whether it is a fact that, under the terms of the agreement by which the Commonwealth subsidizes house-building schemes undertaken by State governments the States are required to allot to aged persons a proportion of all houses built under that agreement? If that be a fact, can the Minister say what sum of money is made available to the States by the Commonwealth under the agreement; what proportion of that sum is allocated for the purpose of building homes for aged persons; what was the actual sum expended upon such homes in each of the last three years in each State; whether any information is available regarding the suitability of those homes; and whether this procedure is considered to be a satisfactory method of relieving the difficulties experienced by aged persons?
– I have discussed this matter with Senator Annabelle Rankin.
– Another “ Dorothy Dix “!
– If this be a “ Dorothy Dix “ question, it is one with a new complexion, because I do not know the answer to it. This matter is of considerable importance to me in the administration of my department. Having discussed it with Senator Annabelle Rankin, I requested her to direct a question to me upon it, in order that the question might be answered by the responsible Minister and placed upon record.
– Will the Minister for Social Services inform the Senate whether consideration has been given to paying the subsidy of eight shillings a day ‘per bed to trained and certificated nursing sisters who take in and care for aged and infirm people who have no relatives to stay with them.
– I have had tentative discussions about the possibility of providing trained nurses to attend to the care of aged people needing attention. The consensus of opinion in my department was that it would not be practicable to institute such a scheme, unless hospital facilities were increased in order to provide appropriate accommodation. It is not considered that a sufficient number of qualified nurses would be available to visit homes of the aged for this purpose.
– I have suggested rather that nursing sisters should have beds for aged people in their own homes and receive the subsidy of 8s. a day foi each bed.
– At present, the subsidy of Ss. a day a bed is payable only to registered hospitals. The adoption of the suggestion would involve a departure from the existing practice and I should have to give a lot of thought to the desirability of payment of the subsidy in respect of private homes where nursing sisters care for the aged. There must be a better method of approaching this problem.
– Has any consideration been given by either the Commonwealth Government or State governments to tile building of homes for the aged, such as the Eventide Homes to which Senator Annabelle Rankin has frequently referred?
– Senator Annabelle Rankin’s question also touched on that matter, as the honorable senator acknowledged. I shall obtain details from the Department of Works and Housing, and ascertain what has been done in the matter. In reply to a question asked by Senator O’Byrne some little time ago, I stated that I was exploring the possibility of assisting persons who care for the aged and infirm in private homes. However, I find that the wheels of the Department of Social Services grind slowly, and I have not yet got sufficient information to enable me to reach a decision. I have asked the department to expedite the preparation of the necessary data.
– Will the Minister for Trade and Customs say whether the Government is aware that there were 27,000 half-caste people in Australia in 1947, or 6,000 more than the 1943 census figure? Is the Government aware that the great majority of these people are outcasts, have no place in the community, and are developing into a minority of unwanted citizens? Is the Government aware that Western Australia has a major problem in connexion with the care and welfare of these people, as well as of full-blooded aborigines? Is the Government aware that in 1943 the Royal Commissioner on Aborigines, Mr. H. D. Moseley, asserted -
The conclusion is irresistible that the great problem confronting the community to-day is that of the half-caste.
As the care and welfare of these people should be a national obligation, and as it is beyond the capacity of the people of Western Australia to undertake the task, will the Australian Government co-operate with the Western Australian Government, should its co-operation be sought, in securing the social advancement and protection of these people?
– The honorable senator has raised a very human problem. I think that we must all feel very distressed for those unfortunate members of the half-caste population who miss the best of both and get the worst of both races. This is a matter in respect of which the Commonwealth has no power to legislate except in regard to its territories. In Queensland a very human approach is made to the problem. Any suggestion that any honorable senator might make to improve the lot of these people and make life happier and more livaBle for them would receive the sympathetic consideration of whatever government was in power. If the honorable senator has in mind an idea to assist them, and communicates it to me at a convenient time, I shall be only too pleased to pass it on not only to my colleagues in the Cabinet, but also to the various State governments.
– I greatly appreciate the answer which the Minister has just furnished. Will he indicate whether the Government would favorably consider a request by the Government of Western. Australia for financial assistance in the matter?
– As the honorable senator knows, Cabinet speaks with one voice.
– Whose voice is that ?
– That is the voice of the majority. Under the LiberalAustralian Country party Government democracy rules, and the voice of the majority prevails. However, since the matter raised by Senator Nash relates to a very worthy objective, I should very much like him to place his representations in writing, so that I may bring them before Cabinet. I think that we should make some effort to make the lives of the aborigines a little happier than they are at present.
– Will the Minister representing the Minister for Commerce and Agriculture ascertain from his colleague what progress is being made in connexion with the investigation of the cost of production of potatoes in Tasmania by the officers of the Bureau of Agricultural Economics? When is it expected that a report will be furnished?
– I shall bring the honorable senator’s inquiry to the notice of the Minister for Commerce and Agriculture, and request that a reply be furnished as soon as possible.
– As chairman, I present the report of the Public Works Committee on the following subject: -
Proposed extensions to the School of Public Health and Tropical Medicine, Sydney.
asked the Minister for Repatriation, upon notice -
– The answers to the honorable senator’s questions are as follows : -
asked the Minister for Fuel, Shipping and Transport, upon notice -
Did the British Government at any time before announcing publicly its decision to lift petrol rationing, consult with the Commonwealth Government as to the general effects of that decision, in particular, its effect on the petrol dollar pool?
– Following is the answer to the honorable senator’s question : -
The British Government has been in touch with Australia and other Commonwealth countries for some time concerning petroleum problems generally. The Commonwealth Government was consulted in relation to the negotiations which led up to the abandonment of petrol rationing in the United Kingdom.
asked the Minister for Fuel, Shipping and Transport, upon notice -
– The following are the answers to the honorable senator’s questions : -
SenatorRYAN askedthe Minister representing the Minister for Commerce and Agriculture, upon notice -
– The Minister for Commerce and Agriculture has supplied the following information : -
The above values are the returns to factories and include Commonwealth Government subsidy. They do not include the returns from export in excess of production, manufacturing and other costs to the point of export. These excess returns are paid into the Dairying Industry Stabilization Fund.
In committee: Consideration resumed from the8th June (vide page 3962).
Clause 5 - (3.) A body of persons so declared to be an unlawful association may, within twenty-eight days after the publication of the declaration in the Gazette, apply to the appropriate court to set aside the declaration, on the ground that the body is not a body to which this section applies . . .
Upon which Senator McKenna had moved, by way of amendment -
That, in sub-clause (3.), the words “on the ground that the body is not a body to which this section applies “ be left out.
– When this clause was under consideration on Thursday the committee was considering an amendment to sub-clause (3.) that I had moved on behalf of the Opposition. The clause deals with unlawful organization; other than the Australian Communist party and, of course, other than industrial organizations. In his last comments upon what had taken place in committee, the Attorney-General (Senator Spicer) dealt at some considerable length with the subject of onus of proof, but that matter is not germane to the point that the committee is considering. In the course of his remarks on the amendment that I had moved, the Attorney-General made the point that the declaration of an organization by the Governor-General in Council was not analogous to an offence because there was no fine or imprisonment. The Opposition is appalled at the very light regard that the Attorney-General has shown for the consequences of the declaration of an organization by the Governor-General in Council.
Under this clause, it is proposed to declare an organization upon two counts.
The first is that it is Communist affected or infected, and that covers the four classes of cases set out in sub-clause 1. Of those four, the first is that the organization is affiliated with the Australian Communist party. The second is that a majority of its members are members of the Communist party or that its executive committee is dominated by Communists. The third class comprises organizations which support the principles or practices of communism asexpounded by Marx and Lenin. The fourth covers a very wide range of organizations. It includes an organization that is influenced in its deliberations by Communists, possibly only two Communists, who use their positions to advocate communism.For the sake of brevity I refer to all those four classes as those that are Communist affected or infected. That is the first point of declaration by the GovernorGeneral.
The second is the more serious of the two points of allegation against an organization. It provides for a pronouncement by the Governor-General that the continued existence of an organization would be prejudicial to the security of the country. I cannot imagine any more grave charge. Very plainly implicit in that allegation is an allegation of treason, or sedition. The consequences of such a declaration are very serious. The organization will be dissolved and will cease to exist and the whole of its property will be taken by the Commonwealth. Such a declaration by the Governor-General would amount to a sentence of death on the organization, but that would not be the end of the matter, because the mere declaration of an organization would leave on its members all the opprobrium that would flow from their membership of a body which had been declared to be prejudicial to the security of the country. The Opposition does not view the consequence of a declaration lightly, but we view even more seriously the allegation that a body is prejudicial to the security of the country than we do the allegation that it is Communist infected or affected. A body may be declared on the ground that it is Communist infected, and that it is prejudicial to the security of the country.
The declared body may appeal to the court on one allegation only, namely, that it is Communist infected. It is to be expressly prevented from appealing to the court on the ground that it is prejudicial to the security of the country. The court may not even examine that allegation. It may consider only whether the declared body falls within one of the four classes of organizations mentioned in this legislation. Thus, in regard to the very serious allegation that a body is prejudicial to the safety of the country, a declaration that means a sentence of death to the organization and grievously affects all its members, the Executive is to be the accuser, the judge, the jury and the dispenser of punishment. The declaration by the Executive cannot be reviewed at any stage whatsoever.
Another objection-able feature is that the organization against which the allegation is made will never be supplied with particulars of what is alleged against it. It will never have an opportunity to learn from the Executive, or in a court, or at any time whatsoever, the grounds upon which it was declared by the Executive to constitute a risk to the security of the country. That is bad enough, but I ask the committee to consider the really absurd position into which the Government will get itself if it persists in its present attitude. As I have said, a body may be declared on two grounds, first, that it is Communist infected, and, secondly, that it is prejudicial to the security of the country. The organization can appeal in respect of the first allegation only, and if the court finds that the allegation has been wrongly made the court will set aside the whole of the declaration, involving the two counts. Thus, although in the opinion of the Government, the body is Communist infected or affected, and constitutes a danger to the security of the country, and although the Government has expressed that opinion in the most public way by a ‘ notice in the Gazelle, the body will continue in existence if it can prove that it is not Communist infected. Could there be a more absurd position than that? Therefore, in order to remedy that absurd position, as well as in common fairness to the bodies concerned, the fullest recourse should be allowed to the court. In his second-reading speech, the AttorneyGeneral said in unequivocal terms that a declaration would be made by the full Cabinet only, upon the soundest evidence, and I take it that he was referring to the declaration of a body as well as that of an individual. Notwithstanding that statement, a declared body will be able to continue in existence if it can satisfy the court that it is not Communist infected even though, in the opinion of the Government, the body is prejudicial to the safety of the country.
Why is the Government unwilling to allow the court to deal with the second count in the indictment against a declared body? Is it afraid to allow the court to examine the arbitrary declaration by the Government? I remind Ministers that, during the election campaign, their slogan was “Vote Liberal for freedom “. Surely the Government does not argue that what it is now proposing is freedom, that the mere say-so of the Executive should determine for ever the matter between the organization and itself? Is that just? Is there any element of freedom in that proposal? It is against that kind of arbitrary executive action that the democracies fought in the last war. They fought to stop that sort of thing from sweeping over Europe. The Opposition objects most strongly to the Government’s proposal, and I am astonished that I should have to urge my point of view with so much vehemence. In his policy speech before the last election, the present Prime Minister (Mr. Menzies) declared that, if he were returned to power, he would introduce legislation to outlaw the Communist party, and expropriate its property, and he added -
Subject to appeal, the Attorney-General will be empowered to declare other bodies substantially Communist; to follow the party into any new form, and attach illegality to that new association.
I emphasize the words “ subject to appeal “.
– The bill is more limited than that.
– That is the point. Would anybody have construed the words “ subject to appeal “ as meaning “subject to a limited appeal”?
– Order ! The honorable member’s time has expired.
– On Thursday night, I stated the Government’s view of this amendment and advanced a number of reasons why it is not acceptable to us. Senator McKenna has failed to face up to the real issue raised by the amendment. Last Thursday I reminded the Opposition that it had accepted the position that the Communist party is a menace to the security and defence of the Commonwealth. Consequently, as I understand it. the Opposition has accepted the view that the Communist party should be dissolved without any trial at all. This clause is concerned with organizations that are affiliated with the Communist party and with organizations that present members of the party m.ay form in the future. It would be nonsense to abolish the Communist party without also making provision to meet the circumstances that would arise after its abolition, or attempting to prevent it from establishing another organization, under a different name, to do the work that the party had been doing in the past. This clause is directed against organizations of that kind.
We could have presented to the Parliament a clause that stated that an organization of the kind to which 1 have referred should be abolished, but that it should have a right of appeal upon the question of whether it was an organization covered by the definition contained in the clause. The Government has not gone as far as that. It has imposed a limitation upon the circumstances in which such a body may be declared to be an. unlawful organization. The mere fact that it is affiliated with the Communist party or, if you like, that is a future manifestation of the party, will not be a sufficient ground for declaring it to be an unlawful organization. It is proposed that the GovernorGeneral shall be required to go a step further than that. He must be satisfied that the continued existence of the body of persons in question would be prejudicial to the security and defence of the Commonwealth. In other words he must be satisfied, not merely that the organization is a Communist organization, but also, to put it shortly, that it is a subversive organization. I say deliberately that we cannot permit an appeal upon the second question.
– Why not?
– I should have thought that the reasons were obvious to Senator McKenna. I stated them clearly on Thursday night, but apparently they failed to enter his consciousness. Perhaps I may state them again shortly. On Thursday night, I referred to the judgment of the Privy Council in the Zamora case in 1916, to which Senator McKenna has made no reference. I shall read again the passage from the judgment that I read on that occasion, because it expresses very clearly the reasons why this matter cannot become the subject of an appeal. The Privy Council stated -
Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should bo made the subject of evidence in a court of law or otherwise discussed in public.
That was a plain statement. It is clearly applicable to the set of circumstances that we are discussing now. In the final analysis, the Executive must accept responsibility for the determination of all questions affecting the maintenance of national security. How would it be possible, under any circumstances, to put into the possession of a court or a jury all the information that a government necessarily possesses regarding what is desirable and undesirable from the viewpoint of national security? How could such matters be discussed adequately in a court? How would it be possible to put a judge or, as the Opposition suggests, a jury, in possession of all the material relevant to such an issue? Some of it might be confidential information supplied by the governments of other countries. Even if some of the information were made available to the court or the jury, how would it be possible for the tribunal to be placed in possession of all the material that goes to make up the background of the information upon which a government determines questions of this kind?
– Why have all the leading lawyers said that these organizations should be prosecuted in conformity with the principles of democratic law?
– As far as I know, very few leading lawyers have expressed their opposition to this proposal.
I suggest that this is a very serious matter from the point of view of carrying on the government of this country. In the course of the debate upon this bill, some honorable senators opposite have emphasized the point that I am attempting to make. I have said on several occasions, and I repeat it now, that the Parliament must accept responsibility for what appears in the preamble to the bill, but members of the Labour .party have sought to escape that responsibility by saying, in effect, “ The information is in the possession of the Government, which knows more about it than we do, because it has been in office for the last six months “. Apparently the Labour party says that it is prepared to accept the word of the Government that the Australian Communist party is a subversive organization.
– We believe that ourselves.
– I am very glad to hear it. I should be happy to know that every member of the Labour party held the view that is held by Senator Hendrickson. The Australian Communist party is to be dissolved upon the statements contained in the preamble to the bill. The Labour party, having regard to the knowledge that the Government possesses, accepts those statements coming from the Government as being accurate.
– Mr. Justice Lowe did not say that they were accurate.
– On the contrary, lie did. If Senator Morrow had been in his place the other day, instead of running away when a vote was being taken, he “would have heard some extracts from Mr. Justice Lowe’s report which completely supported what I have stated. In the final analysis, the dealing with the organizations becomes a matter of government responsibility. The government of the day has to say in its declaration - and it will do so if the occasion arises - that the continued existence of a specified organization is detrimental to the defence of Australia. I suggest that if the government of the day were prepared to make such a serious and solemn declaration it would ,be impossible to find any tribunal in this country that could really perform the function of a court of appeal from that decision. I do not intend my remarks as a reflection on any tribunal. No tribunal could be put in possession of all the information that the Government possessed, upon which a sound judgment had been formed.
– If a person swore on oath that he was not a Communist, presumably the evidence that the Minister has spoken of could then be submitted?
– We should have to submit to the court material concerned with whether the person was a Communist or not. But we are not prepared to place in the hands of a tribunal - whether judge or jury, according to the amendments which are envisaged - responsibility of deciding the very serious question whether the continued existence of an organization is detrimental to the defence of the Commonwealth.
– Why not?
– Surely the matter is too obvious to require argument. If die honorable senator had had any real experience of government, and of making decisions of this kind, he would realize that it would be quite impossible to put an outside tribunal - judge or jury - in possession of information upon which the Government had formed its judgment. Some of the information may be confidential. The extract that I read from the judgment in the Privy Council-
– That has nothing to do with this matter.
– It has everything to do with it. It was concerned with precisely the same problem.
– That was in the middle of a war.
– Every time we come up against this question honorable senators opposite say that it was during war-time. I point out that we arc now in the middle of a “ cold “ war.
If we are to prevent that “cold” war from becoming a “ hot “ war it is neceshay to arm the Government with power - an extraordinary power if necessary - to be the sole judge of whether a particular organization should be permitted to continue, having regard to the fact that it is the view of the Government, in the light of information in its possession, that the continued existence of that organization is detrimental to the security of the Commonwealth.
– Order! The Minister’s time has expired.
– The Attorney-General (Senator Spicer) has failed to face up to several of the arguments that I have prosecuted to the Senate. First, I referred with emphasis to the fact that the Prime Minister (Mr. Menzies) stated in his policy speech in November last that, subject to appeal, these various auxiliary bodies would be dealt with. “We have not heard one word from the Minister upon that subject. I invite him to tell the Senate his version of those words in the right honorable gentleman’s policy speech. The Attorney-General will be empowered to declare other bodies substantially “ Communist “. to follow them into any new form, and attach illegality to that new association. I invite him to reply to the suggestion that, in the minds of the electors, “ subject to appeal “, means subject to a full appeal, not a part appeal. I also challenge him to deny that every elector who heard those words, or has read them, understood them to mean “ subject to appeal to a court of law”, and that there is imported into those words “ appeal according to the due processes of the law in the ordinary courts of the land “.
– They have that appeal.
– They have an application, not an appeal. I shall be quite specific in the matter of terms. There is the declaration, and an application to a court limited, to one ground only. That is not an appeal, but an application. The appeal is a matter not provided for in this bill. It will be dealt with in Opposition amendments. So that we may understand each other, we are speaking about the declaration, application on one ground only, and - at a later stage in our discussions - appeals. That may save some confusion. The Attorney-General has not dealt with the position that I put to the Senate. Despite all that he says about the grave danger that these bodies constitute, and his contention that the Executive of the day should not be called upon to say one word about how very dangerous they are, he does not deal with the absurd position I put to the Senate that so long as they are not Communistinfected they can be as dangerous as they like and apply themselves to the destruction of the community. The Minister should furnish the committee with a direct answer on that phase of the matter. Although an appeal is permitted on only ‘one point; is it not true, that if the organization wins that point, despite the story the Government tells the court of the great danger that this organiaztion is to the country, the bill, as drafted, will allow it to continue unfettered on its way?
– Does the honorable senator mean that clause 5 should be extended to apply to anybody?
– The Minister should not seek to evade the issue. Let us deal with one point at a time. Is it, or is it not, true that as long as the court, on this application, finds that the body is not Communist infected or affected, no matter how treacherous, traitorous, or dangerous to the security of this country the Executive may regard it, that body may nevertheless run free under this measure? That is the mo.-t absurd position that could be created by any law. The Attorney-General did not even mention that m>atter and I invite him to face up to it frankly when he p.peaks. I also invite him to say something on another matter, namely, whether he considers that the allegation that an organization is Communist-infected is more serious than an allegation that the existence of that organization is prejudicial to national security. To judge from his remarks, he regards security as paramount. I therefore invite him to say whether he agrees with the case that I put on behalf of the Opposition to the effect that an allegation that the existence of an organization is prejudicial to national security is by far the most serious charge that could be made against it. I have mentioned at least three matters which the Attorney-General has not confronted.
Now, I propose to confront the specific matters with which he asked me and the Opposition generally to deal. In the first place, he sought to make some point of the fact that the Opposition’s case for a fuller right of appeal on behalf of bodies other than the Australian Communist party did not include any denunciation of that party. Let me say at once that the Australian Communist party stands on an altogether separate footing from other organizations, inasmuch as its operations and functions are known. As a matter of fact, the Opposition has denounced the Australian Communist party and in doing so has uttered almost every word contained in the recitals in the preamble to the bill. We believe those recitals to be substantially true. Although the Attorney-General said that he would not accept the suggestion that I made, on behalf of the Opposition, in my second-reading speech that the formulation of the preamble was the sole responsibility of the Government because it is armed with knowledge that no other political body possesses, I draw his attention to the fact that the Prime Minister (Mr. Menzies) has supported my view of the matter. If the AttorneyGeneral will refer to the remarks made by the Prime Minister in the House of Representatives on the 18th May he will find that the right honorable gentleman said -
I repeat, that in relation to such matters any democratic Parliament confronted by a state of affairs such as exists to-day, will properly repose a great deal of responsibility in the government, which should have, and must have, more knowledge of the security affairs of Australia than anybody else outside the Security Service itself oan have.
Those words of the Prime Minister support the case I made in my second-reading speech on behalf of the Opposition. Putting on one side altogether the Australian Communist party, whose views are known to all, let us examine the position of other bodies with which the bill deals. Every conceivable kind of association, from organi zations closely related to the Communist party to bodies such as school committees, will be embraced by the clause. In response to the pressing remarks that I made in an earlier speech the AttorneyGeneral admitted that the provisions of the bill are very wide. I claim that they are exceedingly wide; in fact, they are wide enough to embrace any organization and to pick up any individual. The Attorney-General asks us to accept the position that although an organization may be subversive, because it may include only a few Communists among its members, it may continue to function quite freely. At the same time he wants to spread ‘the net so wide that once the Government has made the grand declaration that a body is Communist-controlled and is a danger to the country any member of it may be declared, and no one may question the Executive’s action. In other words, the Executive is to be the accuser, the judge and the executioner. That conception is so completely opposed to justice, to law and to all the ordinary ideas of freedom that it amazes me that the Government should resist our proposal to alter it. After all, what is the Government resisting? All we ask is that an opportunity should be given for the courts to examine the very serious allegation that will be made by the Government when it declares an organization. I think that the position adopted by the Government in this matter is dreadful. After all, we are at peace with the world at present. Let me add here that, frankly, I deplore the comments made by the Prime Minister in the course of his second-reading speech, when he went as near to making a declaration of war on Russia as any government could have done. If there is a “ cold “ war - and I deplore the use of such cliches and terms in relation to other nations because the only purpose they serve is to accentuate differences - the speech made by the right honorable gentleman would have made the warlike situation worse.
In the course of his speech the Attorney-General referred to a case decided by the Privy Council in 1916. I remind the Minister that from 1914 to 191S a world war was being waged, and that 1916 coincided with the height of that war. At that time England and the democracies were fighting for their lives.
– That circumstance does not alter the importance of the decision of the court in that case.
– Surely the Minister does not suggest that national security in peace is the same as national security in time of war?
– The two matters are substantially the same.
– It depends on the degree of emergency with which a nation is confronted. Take the position in war-time. Because of the peril confronting the nation everything except measures for defence may have to go overboard. The ordinary way of life of members of the community, including their freedom to choose their employment, to travel and to do a thousand and one other things, disappears. Their normal liberties are temporarily withheld, and they may even be drafted into service and sent overseas. If the emergency is sufficiently grave, every ordinary civil right goes overboard. But does the Attorney-General, or any other member of the Government suggest that Australia is in extremis to-day, that the foe is at our gates, and that everything is falling around us? One could not imagine any more absurd suggestion than that. In reply to the case cited by the Attorney-General, I remind him of the decision of the Privy Council in the litigation that arose out of the loss of Thetis, a submarine that went down with all hands off the coast of England. The court took up the most extraordinary position, reserving to a Minister of the Crown the right to withhold all information from it merely because he claimed that information relating to the loss of the vessel would be prejudicial to national security. Undoubtedly courts are affected by the fact that the country may be engaged in a state of war at the time they deliver their judgments. If the Minister will study, with the undoubted ability which he possesses, the report of the Thetis case, I have no doubt that he will come to the same conclusion on the judgment delivered in that case as I did. I shall not call it an hysterical judgment, but it was undoubtedly very greatly influenced by the emergency of war. However, I notice that even in that judgment their Lordships carefully left a way of escape so that the normal processes of law would operate in peacetime. When a nation is at war, is in extreme peril of being invaded, and is, in fact, fighting for its life, it is necessary to withhold the ordinary democratic safeguards. However, to suggest that we should be justified in adopting a similar attitude at the present time is so extravagant a description of the situation as to amount to an untrue representation. I have a great deal of knowledge of the operations of the security service of this country, and I can see no reason why evidence, which the Attorney-General has stated is complete, in relation to a certain organization should not be placed before the court for examination. The Minister is not asking the Senate to accept the position that all the relevant evidence is in the possession of the security service that was established within the last twelve months, because he has to concede that the evidence that will be tendered will be supplied very largely by persons outside the security service. There is not the slightest reason in the world why that evidence should not be put before the court. I say that seriously, and as the result of my experience. “Let us follow the attitude of the Government to its logical conclusion. The word of the Executive in this matter is to be the first and the last word, and its declaration that an organization is prejudicial to national security cannot be gainsaid.
– Order ! The honorable senator’s time has expired.
– Senator McKenna said that I did not answer two propositions that he put to the committee. I was proceeding to answer one of them when my time expired. First, with reference to the policy-speech of the Prime Minister (Mr. Menzies), I suggest that this clause gives complete effect to everything that appears in the sentence to which Senator McKenna referred. If he reads that portion of the policy-speech, he will see that what was envisaged was that all Communist organizations would be declared unlawful, without any limitation whatever. The Prime Minister said -
Subject to appeal, the Attorney-General will be empowered to declare other bodies substantially Communist.
Had we given effect to every word of that statement, no limitation would have appeared in the clause now before the committee. The clause would simply have provided that if the Governor-General was satisfied that a body of persons was a body of persons to which the clause applied, that organization would be declared to be illegal. In other words, the mere fact that it was a Communist organization would be sufficient to warrant a “ declaration “ and, in these circumstances of course, the only possible appeal would be on the ground of the character of the organization. That is precisely what we have in this clause. There is a provision specifying certain bodies that may be declared by the Governor-General and insofar as the Governor-General’s declaration relates to the charactor of the organization, the appeal is full and complete. What has happened, of course, is that, in the preparation of this measure, we have not gone as far as the policy-speech envisaged. We have not provided that every organization of the kind described in clause 5 shall be declared an illegal organization. An organization can only be declared illegal if, in addition to being of the kind described in this clause, the Governor-General finds that the continued existence of that organization would be prejudicial to security. I suggest, therefore, that there is no departure whatever from the terms of the policy-speech in relation to this matter.
Senator McKenna made great play on the fact that should a declared organization appeal successfully to a court on the question of its Communist association, a situation would then arise in which an organization, the continued existence of which had been declared by the GovernorGeneral to be prejudicial to the defence of the Commonwealth would continue to remain in existence. Theoretically, that situation could arise. If it did, we should deal with it. Such an organization would be dealt with either tinder existing laws, other than this legislation, or perhaps under legislation especially passed for that purpose. That difficulty arises almost inevitably from the fact that this bill is directed only against Communists and Communist organizations. It is not intended to go any further. Would Senator McKenna support a proposition that clause 5 should be altered to provide that any organization, the continued existence of which, in the opinion of the GovernorGeneral would be prejudicial to the defence of the Commonwealth, could be declared? I suggest that the honorable senator would not be prepared to go so far as that.
– If the Government were to grant the right of application to a court and of appeal we should support the proposition.
– The Opposition would agree that any organization, including even a trade union, could be declared ?
– I am speaking of the organizations already defined. I did not mention trade unions.
– I am asking the honorable senator whether, without any limitation whatever, he would he prepared to give power to the GovernorGeneral to “ declare “ any organization the continued existence of which he considered to be prejudicial to defence and security.
– That is in the Crimes Act now.
– It is not. This bill is directed against the Communist party and the new organizations into which members of that party form themselves. If the circumstances that Senator McKenna envisages did arise, and presented difficulties, they could be dealt with, but the possibility of such a situation arising is not any argument whatever against a bill that is- concerned with the suppression of the Communistparty. The honorable senator’s proposition only leads me to ‘believe that any excuse is good enough for an argument to hide the fact that the Opposition is really completely opposed to the clause.
I had some remarks to make about the unsuitability of a. tribunal such as
– There is no line of demarcation?
– No. The government of the day must take full responsibility for the security of the country. Matters of security exist just as much in peace-time as in war-time. The distinction that is drawn between peacetime and war-time in connexion with these matters is quite unreal. The arguments that are put forward in wartime are just as forceful in peace-time. I shall read to the committee a passage from the well-known judgment in Liversidge v. Sir John Anderson. Lord Macmillan had this to say, and his remarks are just as apt to a clause of this kind as they were to the problem with which the learned lords were then concerned -
I turn now to the nature of the topics as to which the Secretary of State is under the regulation to have reasonable cause of belief. They fall into two categories. The Secretary of State has to decide (1.) whether the person proposed to be detained is a person of hostile origin or associations or has been recently concerned in certain activities, but he has also to make up his mind (2.) whether by reason thereof it is necessary to exercise control over him. The first of these requirements relates to matters of fact, and it may be that a court of law, if it could have before it all the Secretary of State’s information - an important “ if “ - might be able to say whether such information would to an ordinary reasonable man constitute a reasonable cause of belief. But how could a court of law deal with the question whether there was reasonable cause to believe that it was necessary to exercise control over the person proposed to be detained, which is a matter of opinion and policy, not of fact? A decision on this question can manifestly be taken only by one who has both knowledge and responsibility which no court can share. As Lord Parker said in The Zamora ( 1 ) : “ Those who ‘ are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should bc made the subject of evidence in a court of law or otherwise discussed in public ‘ “. I may also quote the words of Lord Finlay L.C. in Ram v. Halliday (2) : “It seems obvious that no tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate than a court of law “. The question is one of preventive detentions justified by reasonable probability, not of criminal conviction which can only be justified by legal evidence.
As I have indicated, a court of law manifestly could not pronounce on the reasonableness of the Secretary of State’s cause of belief unless it were able to place itself in the position of the Secretary of State and were put in possession of all the knowldege both of factsand of policy which he had. But the public- interest must, by the nature of things, frequently preclude the Secretary of State from* disclosing to a court or to any one else thefacts and reasons which have actuated him. What is to happen then? The appellant says that the court is entitled and has a duty toexamine the grounds of the Secretary of State’s belief. But the court is also bound to accept a statement by the Secretary df State that he cannot consistently with the public- interest divulge these grounds. Here is indeed an impasse.
That extract indicates precisely the position although that case arose during a war.
– That is the point.
– It is not the pointThe position is exactly the same. If, in circumstances such as those existing to-day, it becomes necessary for the government of the day to exercise this type of restraint on a limited number of organizations, and that restraint is to be exercised byreference to questions of national security, the only body which can determine the question of national security, is that body which consists of the King’s Ministers’ who are charged with the responsibility of protecting the country from attack. In those circumstances I suggest that” to relegate such decisions from thosewho are charged with that national responsibility to a body which obviously cannot have the knowledge that is possessed by the Ministry is unthinkable.. Such an argument provides a complete reason why the appeal should not extend to this particular question.
– I deny at once the suggestion by the Attorney-General (Senator Spicer) that the real motive of the Opposition in moving this amendment is to oppose the clause altogether. I throw that back at him with emphasis. The Opposition has agreed to the banning of the Communist party, and the taking of its assets. Honorable senators on this side of the chamber have not sought in any way to delimit the very wide description of the organizations and auxiliary organizations with which the Government may deal in this bill. The simple request of the Opposition is that the courts of this land should let a little bit of light into the dark places in the recesses of the mind of the Government. The Attorney-General suggests that the whole case would be brought down by that very modest request that the courts of the land be given some access to the facts behind the most serious allegation that could be made against an organization. That statement is unjustified and “wholly irrational. The Attorneygeneral has claimed that the Government is to be the sole determinant of security matters. He said the other day that any doubt is to be resolved in favour of the country’s security.
What is the logical conclusion to be drawn from those two statements? I shall carry the proposal to its extreme length to show how dangerous it is. The anonymous letter-writer is, unfortunately, only too well known in every country. He is the lowest creature in any community. He prepares the barb, but the person who injects the poison is he who reads the letter. From that point on, he cannot free his mind from doubt. The only way to treat an anonymous letter is to refrain from reading it once its character is discovered. Once this bill becomes la.w, letters will be written against organizations and individuals. Doubts will be planted in the minds of the security officers and the committee of five and finally will be passed on to the Cabinet. A. doubt so created by an anonymous letter could determine that an organization should no longer be allowed to exist on the ground that it endangered security. That is the logical conclusion to be drawn from the Attorney-General’s own arguments.
– It may be logical, but if. is very silly.
– That is not a very profound observation. If that is the position that the committee has reached, I regret that il; is so. I hare carried the example to the extreme r.o show how dangerous it is. The further case cited by the Attorney-General is related to a time of war and all the hysteria, dangers and perils of war. I thought that T demonstrated just how far a court will go in upholding the ‘Executive Council when war is actually upon the country by reference to the Thetis case. Who is to say that war is alongside Australia to-day? The Attorney-General has acknowledged that my proposition of the absurd position to which the law could carry this country is theoretically correct. He has admitted that that possibility could arise. A body which was completely subversive in the view of the Executive, could operate freely if it could show that it was not Communist in character, or Communist infected.
– I did not say that. 1 said that it could be dealt with under an existing law, or under a new law.
– The AttorneyGeneral carried it through to the point where he said that an organization could be dealt with by an existing law or a new law. If the Attorney-General deals with it under an existing law, he will follow the due processes of law. He will go into the ordinary courts of the land, which have a jury system. He will indict the people concerned, and will be compelled by the Constitution to have a jury. On behalf of the Opposition I insist that that is what he ought to do in the first instance, and not in the last. It is a grave matter to abrogate all the processes of law and to by-pass the courts of the land in favour of an Executive decision. That leaves the way open for all the evils of the totalitarian state, and I repeat that this bill may well create an evil far greater than the one it seeks to eliminate.
The real danger is that the people of a country become used to thinking in those terms. The country itself and the character of the people will suffer if matters of such import are relegated readily to an Executive, and if all recourse to the courts is removed. That would mean that in peace-time, the Government of the day could wipe out organizations, could declare individuals, and take the grave steps contemplated under thi.* measure without recourse to the full processes of the law or to the courts.
T tlo not agree with the AttorneyGeneral in his interpretation of the policy speeeh of the present Prime Minister.
Leaving out legal arguments, I believe that when the people of Australia heard the words “ subject to appeal “, they understood that a full appeal to the ordinary courts of the land was meant. I have no doubt that they would have been consoled with the thought that whatever the Attorney-General did, there always remained an appeal to the courts as a protection against arbitrary or unjust action. But all that is to be swept aside. The Attorney-General is the leader of the legal profession in this country.
– And he is a good leader of the legal profession.
– I say nothing against that. I object only to the Attorney-General’s ideas, and have nothing to say against his personal virtues. I say that the Attorney-General, with all the importance that his office gives him, must feel unhappy to be sitting in this Parliament arguing for the abrogation of the rule of law and to set aside the ordinary processes of the courts. He cannot feel happy. The AttorneyGeneral has referred to the fact that this bill is directed against communism. I have made it clear time and again that the Opposition is in complete accord with the broad purposes of the bill to wipe out communism, and to take its accredited representatives out of key positions in the Public .Service and trade unions associated with vital industries. The Opposition is arguing only about the methods to be employed. This bill is directed against communism and the AttorneyGeneral claims that it goes no farther. I have demonstrated that it is directed also against the rule of law, the processes of law, and the invocation of the law courts. It rejects the element of a jury in serious matters. In short,- the Attorney-General asks for provision to allow the Governor-General in Council to declare any organization as being guilty of the worst crime in the calendar, that is, of being a danger to national security and treacherous to the country, without supplying any details of the allegations. The mere pronouncement of a declaration would damn an organization, pass sentence of death upon it, dissolve it and take all its assets, simply on the say-so of the Executive Council of the day.
That is an atrocious position to defend. The Attorney-General sought refuge in the suggestion that all security matters are very “ hush hush “, and that no court should be supplied with the evidence upon which the security service acted. I am not familiar with the case cited by the Attorney-General, but it seems to me that it related to the detention of enemy aliens suspected of spying, something altogether different .from what is contemplated in this bill. He also referred to the refusal of the Secretary of State to make certain information available on the ground that it would be prejudicial to security. That happened in time of war, and we know that in time of war the publication of any information on such matters as food supplies, water reticulation, the movement of troops, &c, might be dangerous. In peace-time information on such matters can safely be published. That is why we are asking that proceedings under this legislation should be in accordance with due process of law, and that persons or organizations that are declared by the Government should have access to the court. Nothing that the Attorney-General has said has convinced us to the contrary, or can make us move from our position.
– I agree with Senator McKenna that this legislation might bring great evil. Once repressive legislation is passed, there can be no turning back. In order that the legislation may be enforced, fresh repressive legislation must be introduced, and so a government goes on and on until it ends up by establishing the police state that goes with it, with concentration camps and all. We have heard a great deal about the “ cold “ war, but no evidence has been placed before us to show that any person in this country is taking part in, or encouraging, a “ cold “ war, whatever that is. I notice that the Attorney-General (Senator Spicer) smiled, but he has supplied no evidence about a “ cold “ war. I know this, however, that the present Government is participating in a “hot” war.
– Where ?
– It is taking part in a “hot” war in Malaya. The members of this Government are the guilty men, so far as war is concerned. We are sitting on a powder keg that may explode at any time. but the Government does not care so long as certain interests in Australia continue to win profits in Malaya.- When the Attorney-General said that the hill was based on certain established facts, I interjected to point out that the report of Mr. Justice Lowe did not justify the Government’s attitude. The Attorney-General said that if I had listened to him, instead of running away, I might have heard something that would convince me. I did not run away, and I am quite able to read for myself what Mr. Justice Lowe wrote in his report. I do not think that there is any ambiguity about what I have said on this issue. I have left no doubt in any one’s mind where I stand.
– Where does the honorable senator stand ?
– I have said where I “stand, and I have not changed my opinions. If honorable senators opposite cannot understand what I said, I cannot help it. The inquiry into communism in Victoria by Mr. Justice Lowe began on the 6th June of last year, and was completed on the 28th February of this year. The Commissioner, Mr. Justice Lowe, received complete support from the Government. Evidence was given by a paid informer whom even Mr. Justice Lowe condemned. All the pimps who could be gathered up were called to give evidence. I quote the following from Mr. Justice Lowe’s report : -
Apart from Sharpley’s, there is no evidence before me to suggest that the Communist party in its association with the strikes dealt with in the last section was seeking either to create disruption for its own sake, or to create depression conditions by disruption of industrial production, though disruption was a necessary consequence of strike action.
Gibson’s contention was - “ We do not try to create the depression. Capitalism brings it.”
I should add that there is much evidence to show that the strikers have at times secured substantial gains by their action, and these gains in their turn have added greatly to the prestige of Communist union officials and consolidated the power of the Communist party and these officials in the unions.
It is clear that the report does not justify the statements in the preamble to this bill. As I have said, no evidence has been adduced to show that any person, or any organization of persons, is taking part in a “ cold “ war in this country.
– What about tomorrow ?
– I do not know what will happen to-morrow. I shall have to wait and see. Those who are fomenting the “ cold war “ are the persons engaged in selling armaments. By their propaganda they are creating war hysteria, and thus making a market for their armaments.
– So the honorable senator does not think that the Soviet Union has anything to do with it at all?
– I have already read extracts from American publications which show that the talk about a “ cold “ war has proved good for business for Americans.
– The honorable senator is anti-British and anti-American.
– I am not antiBritish. Nor am I anti-American. I am anti-war. It was the Attorney-General who said that. He is typical of those lawyers who. put words into the mouths of unfortunate witnesses, and then cry, “Ha, I have got you ! “ In the United States of America, employment is being kept up by the making and selling of arms to other nations. If there were no “ cold “ war, there would be an economic depression in the United States of America, and capitalism would collapse. So far as Mr. Justice Lowe’s report on communism is concerned, the AttorneyGeneral did not state the facts.
Senator McCALLUM (New South Wales) T4.55]. - The speeches of Senator McKenna and Senator Morrow showed that they fail to recognize that this bill is a defence measure. The Prime
Minister (Mr. Menzies) introduced it as such, and it is on that basis that we support it. I am not going to pretend for a moment that, if this were peacetime, I should be in favour of the methods here proposed. I should not be in favour of declaring people, and preventing them from being employed in the Public Service. However, this measure is necessary in the interests of national defence. It is tragic that responsible public men will not realize the situation that faces us to-day. Australia is not now pursuing the normal, peaceful development that was followed in the nineteenth century, and between the two wars, in this century. Its very existence is menaced by an aggressive power, and by the confidants, supporters and dupes of that power in this country. It is on that ground, and on that ground alone, that we propose to ban the Communist party, and such organizations as the Communist party may transform itself into in its attempts to escape destruction. If we accept the abolition of the Communist party, we must also approve of what is necessary to make this legislation effective. I have read the bill line for line, and word for word, as well as all the amendments that have been proposed. If it could be shown to me that any amendment were of value, I would do my best to have it agreed to, but I cannot see that any of the amendments would make it less likely that an innocent person would be declared. The safeguards are ample. Senator McKenna spoke as if this bill contemplated criminal proceedings. It does not. It contemplates proceedings that would lead to the dismissal of persons from, public employment. I agree with what Senator McKenna said about anonymous letterwriters. In normal times, it is the practice of persons in authority to throw anonymous letters into the waste-paper basket.
– Is the honorable senator ‘sure of that?
– When I held a senior position in the service, that is what I did, and I think that is what other officers do, also. However, in time of war, it is necessary to follow up information from all kinds of sources. The real safeguard is that information will have to be sifted and examined by a committee of five responsible persons, one of whom will be a lawyer of the highest standing, such a man as could be appointed to the High Court Bench. He would not allow himself to be influenced by an anonymous letter-writer, but would act only on solid and substantial evidence. Then, before action can be taken, Cabinet has to agree, and, finally, there is the GovernorGeneral himself. Before people can bedeclared under this bill, there must besolid evidence, not only that they belong: to the Communist party but also that, they are actively engaged in subversiveactivities. That remark applies also tothe organizations of which Senator McKenna spoke. The safeguards areample. It is good that this matter should: be ventilated and that the principles o£ the law should be stated again and again,, but it is not good that the public bedeceived by phrases like “ onus of proof “ used out of their context. I believe that the impression is being created amongmany people in this country that theGovernment intends to abolish trial byjury in criminal cases and to force persons against whom prosecutions are launched to prove their innocence.. Honorable senators opposite know that the Government does not intend todo that. I do not suggest that they havesaid that it does, but phrases have been used that may create that impression hh the mind of the ordinary person.
Senator Morrow demanded proof that some people in this country are doing anything to further the interests of Russia in the “ cold “ war. Surely we can regard the activities on the waterfront which have delayed the loading and unloading of ships and culminated in the rolling strike as evidence of activities on behalf of Moscow. I believe that the deliberate slowing down of the housebuilding programme is an attempt tocreate discontent in this country and destroy our economy. The Communists1 say that capitalism must inevitably fail, but they do not trust entirely to inevitability; they are prepared to give it a little help. The activities of Communists: in all the key trade unions are evidencethat the Communist party in this countryis furthering the interests of Russia, in the “ cold “ war. I say deliberately that the “ phoney “ peace agitation, emanating- -from Moscow, is a definite attempt to make us impotent in the face of a potential enemy. The policy of the Communist party throughout the world is to create a false feeling of security and to make people believe that never again will it be necessary for them to defend their countries. It is the policy of the Communist party to instil in the minds of our young people the belief that there would be world peace if it were not for the activities of the wicked capitalists. Every intelligent person knows that that is not so and that since the cessation of hostilities the main war-like activity has emanated from behind the Iron Curtain. I regard the most ungrateful references to the United States of America and its citizens by certain people in this country :as a definite move in the “ cold “ war. Some people in this country are sowing the seeds of distrust of America. They “want us to forget the glorious way in which its history has been linked with ours. They want us to forget that the reign of law, of which Senator McKenna has spoken so eloquently, has prevailed in the United States of America, and that it is one of the countries in which the British system of law has taken deep root. They want us to forget that the American people came to our aid in our hour of adversity. There is positive evidence that some people in this country are assisting Russia in the “ cold “ war. The plan to allow Malaya to he overrun by guerrilla bands, whose activities are assisting Moscow, is a definite move in the “ cold “ war.
Senator HENDRICKSON (Victoria) f5.4]. - I have listened attentively to the legal argument between Senator McKenna and the Attorney-General (Senator Spicer). If I am any judge, Senator McKenna is leading by 75 or 100 points. The Attorney-General asked whether Senator McKenna would agree to a right of appeal to a judge and jury being given to all organizations affected by this measure. I interjected and said, “ Yes “. The Attorney-General asked “ Trade unions ? and I said “ Yes “. I wish to clarify my statement. The trade unions with which I have been associated can stand any investigation of their activities ; but I venture to say that some organizations to which Government supporters belong, and which are not covered by this bill, could not stand an investigation of the effect of their activities upon the security of this country.
I agree that in the time of war it is permissible to use what may be described as unorthodox methods to maintain the security of this country, but the position is different in a time of peace. I believe that if the present Government parties had, prior to the outbreak of war in 1939, assisted the Labour party in its efforts to rid this country of Communists and subversive organizations, the present position would not have arisen. Under this clause, an organization may bo declared by the Government to be an unlawful organization without an atom of evidence being produced to a court. The Government may act upon information supplied by men such as Sharpley, who figured prominently in the Victorian royal commission on communism. W» knew Sharpley to be a “ rat “ and a disloyal man. During the early part of the last war, we know that he belonged to a subversive organization. “What did the Menzies-Fadden Government do to him in 1939 and 1940? It allowed him to remain at liberty. Sharpley was not the only one engaged in subversive activities at that time. When my son enlisted into the Royal Australian Air Force, Thornton told me that he hoped on the first occasion the boy got into his aeroplane he would be shot down and killed by a German. The present Government parties allowed people of that kind to remain at liberty. Now, the Government is using the Thorntons, the Healys, the “ Jackey “ Browns and others in its effort to push this bill through the Parliament. They are the kind of people that the United Australia party, with the support of the Australian Country party, made in the Commonwealth. Would any honorable senator like to be charged as the result of information supplied by a man like Sharpley, who was known by the Australian trade union movement years ago to be an underground worker for the Communist party? It is people like Sharpley who will be the informers in cases arising from the operations of this bill.
If an organization is declared to be a subversive organization, all those who are connected with it will bc affected. Many persons belong to subversive organizations but they do not know that the organizations are in fact subversive. If they discover the truth, they resign from them. The Government must be very careful in this matter. If an organization is declared to be subversive, the people that belong to it will be condemned and branded by their neighbours as traitors to Australia, although the declaration may be made as the result of information given to the security service by a man like Sharpley. Organizations and members of organizations must be given an opportunity to clear themselves in the eyes of the people. I venture to say that many Government supporters in this chamber and in the House of Representatives belong to organizations that we believe, and have always believed, to be detrimental to the security of this country and of the British Com- monwealth of Nations, but we should not introduce legislation of this kind to deal with those organizations.
If the Government wishes to ban the Communist party, then, as far as I am concerned, it may do so. If I were to wake up one morning and find the Communists gone, I should be very happy, but this bill will not achieve that. The Attorney-General has quoted from law reports, but it has been pointed out that the cases that he cited related to times of war. I agree that in a time of war extraordinary action may be taken to protect the interests of the country, but in peace-time different considerations apply. We are all agreed that we want to rid this country of people who would help an aggressor nation or one upon which we declared war. There has been talk of “ cold “ wars and “ hot “ wars. What difference there is between the two, I do not know. I have been in only one war. It was certainly not a “ cold “ war. England is closer to the potential danger - Russia - than is any other country of the British Commonwealth, but it has not seen fit to introduce, legislation of this kind. The British Parliament is apparently quite content to legislate on democratic lines. Consider South Africa, which has discarded a bill-
– South Africa has gone farther than we have.
– The South African Parliament will not pass the bill. The South African Government will have to do what I hope this Government will do - withdraw the bill, redraft it, and present it to the Parliament again in a more suitable form. If the Attorney-General can persuade Cabinet to withdraw this bill and then present it in a form that will achieve the results that we all desire, he will receive the wholehearted support of honorable senators on this side of the chamber. We are not prepared to give this or any other government the right to go ahead with legislation similar to that which was introduced into the German Parliament in 1933 and 1934 and which almost caused the destruction of democracy throughout the world. We are not prepared to give the Government the right to act upon the evidence of people like Sharpley and other traitors whom we have found in the trade union movement. I believe that if the AttorneyGeneral had the power to do so - I know that he has not - he would accept this amendment. He may be able to persuade Cabinet to agree to it, because he has a very persuasive manner. If he succeeds in doing that, I suggest that he should also attempt to persuade Cabinet to withdraw the bill and present it to the Parliament in the form in which we thought it would be presented, having regard to what the present Prime Minister (Mr. Menzies) said in his policy speech. The right honorable gentleman worded his speech in no uncertain manner and stated that a measure would ‘be introduced to preserve the democratic rights that the people of Australia had always enjoyed. I wholeheartedly support Senator McKenna’s remarks, and I hope that the Attorney-General will accept the suggestions that he has put forward.
– I thought while the AttorneyGeneral (Senator Spicer) was speaking that if a transcript of his remarks was handed to an intelligent person to read, such a person would immediately associate them with Louis 33IV., who, when asked pertinent questions about the Lettres de cachet, replied, “ L’état c’est moi “. In effect, the Minister also has stated, “ I am the State “. Amongst a number of extraordinary statements the Minister said that there was no line of demarcation between war and peace. Although I do not want to be offensive I should like to point out that the Defence of the Realm Act overrides all other considerations in war-time. This legislation was introduced with a great fanfare of trumpets. It is based on the Prime Minister’s assertion that we are only technically at peace. That statement was untrue. It has since been contradicted by such outstanding people as Mr. Truman, Mr. Marshall, Mr. Johnson, and Mr. Trygve Lie. Only the other day, General Mac Arthur, also, is reported to have stated that we are further away from war than we have been for some time. Most people would agree with the Attorney-General that the Government has an obligation to ensure the security of the nation in war-time. However, it is extraordinary that the Government should seek to ensure the safety of the realm in peace-time in the manner provided in this bill.
– It is the responsibility of the Government to do so.
– To contend that we should do so in peacetime by any means, irrespective of the processes of law, is an absurdity that no Britisher would agree to. During the week-end I read a newspaper report from Johannesburg of almost unanimous opposition to a clause in the recently introduced antiCommunist legislation in South Africa which placed the onus of proof on an accused person. Although I am not a lawyer I have a good general knowledge of economics. I have read Adam Smith on Jurisprudence, and although laws may be based on economics, the last arbiter of all is war. As Clausewitz stated on one occasion, war is only politics translated into another sphere. Does the Minister seriously claim that, in a democratic British country, the Government has the right, in times of peace, to wipe out the process of law, because a certain element of danger exists? When we speak of freedom we refer to the fact, amongst other things, that our people are tried for alleged offences according to the processes of law. A person is presumed to be innocent until found guilty.In Russia, however, we read of men being declared guilty of crimes without the processes of law being invoked. Although the newspapers hasten to publicize such events,by this bill the Government is attempting to introduce a similar state of affairs into this country. I was very disappointed in Senator McCallum’s contribution to the debate. I had expected to hearsomething worthwhile from him. He claimed that there would be no criminal proceedings under this bill. Presumably he meant that the Government would merely declare a person a traitor and that no harm would be done. It reminds one of the following words in Othello, written by William Shakespeare: -
Who steals my purse steals trash ; ‘tis something, nothing;
Twas mine, ‘tis his, and has been slave to thousands ;
But he that filches from me my good name,
Robs me of that which not enriches him,
And makes mepoor indeed.
What does democratic government mean if our citizens are to lose their right of trial in accordance with the processes of law? I am not aware that this country is engaged in a war at present. Apparently the only person who knows about it is the Prime Minister. I say in all sincerity that this country has slipped tremendously in the eyes of the democratic world. Until a few months ago it was regarded as one of the most democratic countries in the world. The action of the Government in introducing this measure is contrary to established Liberal thought - Liberal in the John Morley sense of the word. It is contrary to the principles on which our great trade union movement was developed, and to the method of trial by jury. Does the Attorney-General seriously assert that we are in such a state of war that a grave national emergency exists? If so, does it exist to such a degree that the processes of law in relation to certain persons should be abandoned altogether? The great bulwark of the British Empire is freedom. Yet, with one stroke of the pen, the Government is seeking to enact legislation similar to that recently before the South African Parliament. An Anglican archbishop in South Africa stated recently that even if those persons who were responsible for the introduction of the anti-Communist measure in the South African Parliament would not listen, it was the duty of him and his colleagues to warn them that while for a time such legislation may appear to be successful, in the long run the effects would be very different from what they expected.
– Senator McKenna has advanced a very strong case in favour of the proposed amendment to paragraph (3.) of clause 5, which reads -
A body of persons so declared to be an unlawful association may, within twenty-eight days after the publication of the declaration in the Gazette, apply to the appropriate court to set aside the declaration, on the ground that the body is not a body to which this section applies.
The effect of the amendment proposed by Senator McKenna would be to leave out all words after “ declaration “ last occurring. In its present form the provision is a complete negation of British justice. The clause before the committee makes provision for organizations suspected of being affiliated with Communist-dominated organizations to be declared unlawful associations. Paragraph (2.) of the clause reads -
Where the Governor-General is satisfied that a body of persons is a body of persons to which this section applies and that the continued existence of that body of persons would be prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws of the Commonwealth, the Governor-General may, by instrument published in the Gazette, declare that body of .persons to be an unlawful association.
That provision seeks to deal with any body of persons considered inimical to the safety of the Commonwealth. The effect of the clause as printed is that the Governor-General may declare a body of persons an unlawful association and that that body’s only redress shall be to ask the appropriate court to set aside the declaration, on the ground that it is not a body to which the section applies. The Attorney-General (Senator Spicer) has failed to advance a convincing argument on this aspect of the matter. A state of war does not exist, and there would appear to be no possibility of such a state of affairs materializing in the near future. However, it is quite evident that hysteria intended to lead people to believe that an aggressor nation intends to attack us, is being deliberately provoked in Australia. I agree that we should be prepared to meet such a situation in a defensive capacity, and that entire responsibility should rest on the government in office. However, as it stands, this measure provides for the declaration of persons or bodies of persons without their having the right of defence. The stigma that would attach to their names as a result of being declared, irrespective of the fact that the declaration might subsequently be set aside, would remain with them for life. I can recall many instances ofstigma remaining with persons although allegations against them had been subsequently disproved. I am as much concerned about the security and the safety of Australia and of the British Commonwealth as any member of the Senate is, but I will not be a party to abrogate the democratic rights of the people of this country. I cannot understand why the common processes of law provided by the Constitution should be abrogated. The moment we depart from the observance of the due processes of law we hand over the control of our destinies to dictators. Although the anti-Labour parties alleged during the last election campaign that the Chifley Government had acted as a dictator in certain matters, I say deliberately now that any arbitrary action taken by that Administration was taken in the interests of all the people and not of any particular section.
I refer honorable senators now to section 1 of Article XIV. of the Constitution of the United States of America, which states -
All persons born or naturalized in the United States of America, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
A similar observation can be made of the people of this country. The article continues -
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;-
That provision should also apply to Australia - nor shall any State deprive any person of life, liberty, or property without due process of law ;-
That is all that we are asking. “We ask that when the Government” proposed to “ declare “ some body under this legislation that body shall be entitled to the protection afforded by the’ observance of the due processes of law. Under the clause which we are discussing members of an organization to which the clause applies must show that their organization is not a Communist-controlled one. How can they prove that they are not a Communist organization? Sub-clause (1.) of clause 5 reads as follows: -
This section applies to any body -of persons, corporate or unincorporate, not being an industrial organization registered under the law of the Commonwealth or a State -
What will be the position of an industrial organization which has been de-registered under the laws of the Commonwealth or of a State? Suppose that some member of that organization with Communist tendencies has some influence over the policy of the organization. Will the effect of the clause be that all members of that organization will be liable to be declared to be members of an unlawful association^ with no right to defend themselves except on the restricted ground provided in sub-clause (3.) ? I feel very strongly on this point. Section 1 of Article XIV. of the United States Constitution, which I was quoting, goes on to recite -
The Government proposes to institute a system which departs from the accepted principles of justice, the equality of the individual before the law, and all the other rights and liberties handed down to us since the signing of Magna Charta. Those things have become part of our civilization. We are asked to agree to a proposed law which will enable any member of the community to be labelled as a traitor, a subversive influence, or have some other heinous description applied to him, but will allow him only a restricted right of appeal against such declaration. Members of an organization that has been “ declared “ will have to show that their organization is not a body to which this clause applies. I do not know whether I correctly apprehend the language of the clause itself, or, indeed, the general provisions of the bill, but I earnestly submit that if the
Senate agrees to the bill in its present form it will be an abrogation of British justice and a betrayal of everything for which our soldiers fought in two world wars. The passage of this legislation in its present form will open -the gate to all the evils that civilization hold in abhorrence, and which it has fought against in years gone by. Of course, we can talk as much as we like, but we must get down to the facts. If we want to deal with an organization whose existence we regard as inimical to the country, let us do it and be honest about it; but do not let us introduce drag-net provisions which may involve some innocent organization of decent people. The clause in its present form will not only permit an innocent association to be “ declared “; it provisions will also hog-tie the organization by restricting its right of appeal. The Opposition will not stand for such a provision. I want to make my position quite clear. I stand quite firmly by the amendment moved by Senator McKenna, and I feel sure that all my colleagues will support it.
– I have asked members of the Government for some information concerning the existence of the alleged “ cold “ war, but not one tittle of evidence has been adduced in support of that allegation. As Senator Nash has pointed out, a state of hysteria has been induced by the newspapers, and the Government has taken advantage of that state to introduce the bill. The only honorable senator opposite who made any concrete attempt to justify the assertion that a “ cold “ war exists was Senator McCallum, who contended that the state of affairs on the waterfront and the acute housing shortage were evidence of the existence of a “ cold “ war. In making that allegation he unconsciously exposed the real purpose of the Government in introducing this legislation. It is not the Communists but the trade unions of this country that the Government is after. Supporters of the Government have repeatedly blamed the waterside workers for the slow turn-round of ships. However, I have pointed out several times that Mr. Vertigan, a government representative on the shipping board stated that about 70 per cent, of the responsibility for the slow turn-round of ships was due to the congestion on the wharfs and to the actions of certain businessmen. It has also been alleged by spokesmen for the Government that the building workers of this country are responsible for the acute housing shortage. Last week Senator Robertson referred to a report that appeared in the Melbourne Herald to the effect that building workers had capriciously refused to complete a building in Melbourne, and she made mention of a photograph which accompanied the report which showed a workman named Miller standing alone on the job. The explanation of the refusal of the building workers to complete the job was that the structure was a luxury building that was being completed for the Herald, and the workers engaged on the job felt that they would be better employed building homes for ordinary members of the community. Members of the union concerned asked the newspaper to publish their reply, but it refused to do so, just as it always declines to report the workers’ case.
– I investigated the case, and the building concerned was a canteen for employees of the Melbourne Herald.
– The canteen was only part of a luxury building. Eventually the Herald had to capitulate. It said, in effect: “We shall allow you space in our newspaper to publish your story if you will continue with the construction of the building “. I have just been reminded that the number of houses constructed last year was the highest on record, and I know that the volume of goods handled on the waterfront was the greatest ever handled in Australia. Senator McCallum unconsciously revealed that the so-called “ cold “ war was being waged in the industrial life of this country.
– The honorable senator is opposed to the bill?
– The Minister should mind his own business. The only real spokesman for the Government was Senator McCallum, who, as I have already pointed out, indicated clearly that the Government’s real concern is the slow turn-round of ships and the housing situation. Its purpose in introducing this legislation is to “ get at “ the wharf labourers, the building trades unions, the coal-miners, and the transport and metal workers. As I pointed out a few nights ago, the Government is concerned because of the widening gap between prices and the purchasing power of the community, and it foresees considerable economic and industrial trouble in the near future. With that in mind, it introduced this bill in order to draw the teeth of the industrial organizations that fight for better conditions for their members. It hopes that by adopting that course even greater profits may be amassed by the people who sent it here and financed its recent election campaign.
– I am prepared to wager a few shillings that the Communists financed the honorable senator’s election campaign.
– Money talks. Let the Minister for Social Services (Senator Spooner) put up his money, and I will cover it, to any amount. I financed my own election campaign-
– Order! The honorable senator must confine his remarks to the bill.
– With respect, I think that you should have called the Minister to order because he insulted me by suggesting that certain people financed my election to the Parliament, and I was merely denying that suggestion. However, I bow to your ruling, and I repeat what I said a little earlier, namely, that the unwitting spokesman for the Government was Senator McCallum, who told us that the real purpose of the bill was to declare war on the workers.
– I have been long accustomed to hearing my words twisted by knaves to make traps for fools, so when that happens in this chamber it is not a new experience. I did not say, or imply, that this bill was aimed at trade unionism. What I did say, however, was that there was evidence of a plan, directed by the Communist party, to reduce production, to keep workers homeless, and so to foster discontent.
– I rise to order. I point out, Mr. Temporary Chairman, that when Senator Morrow endeavoured to reply to certain accusations that had been made against him lie was ordered by the Chair to confine Iris remarks to the clause now under discussion. Senator McCallum is now making a personal explanation, and I contend, that he should not he permitted to do so.
The TEMPORARY CHAIRMAN.The Chair will hear Senator McCallum
– I wished merely to make plain what I had said previously. I shall not detain the Senate further. I have made it clear that, in my opinion, there is a Communist conspiracy in this country. It is manifesting itself in certain trade union activities that are designed not to improve the conditions of the workers, but to worsen them and so to bring about the collapse of our economy. That was the whole hurden of my speech, and I re-affirm it.
– I have been most interested in the arguments that have been advanced on this clause, but, so far, I have been very little impressed by the case argued on behalf of the Government. Honorable senators opposite have based their arguments on mere belief and assumption. I have yet to learn from the Attorney-General (Senator Spicer) or the Prime Minister (Mr. Menzies) why this departure is being made from the fundamental principle of British law that a person is presumed innocent until he has been proved guilty. No such departure has been made in the United Kingdom, Canada or the United States of America, all of which have had some experience of Communist activities. I have a very high regard for what we call the British rule of law, and no argument yet adduced by honorable senators opposite has convinced me that there is any ground for a departure from that law, particularly, as I have said, as legal authorities of .the leading democratic nations of the world have not seen fit even to suggest that there should be such a departure. Here in Australia, for reasons best known to honorable senators opposite, the Prime Minister and his supporters are endeavouring to persuade us that they have good and sufficient reasons for this legislation. I could, of course, suggest some reasons.
The term “ cold “ war has been mentioned. What does it mean? .No definition has been given by the AttorneyGeneral. If I were asked to define “ cold “ war, I would say that it meant the economic warfare that is going on all the time within the boundaries of our cwn country, and of other countries. For example, if prices are increased, then the purchasing power of wages and salaries falls.
– I rise to order. I suggest, Mr. Temporary Chairman, that a discussion of price rises can hardly be regarded as having a direct relation to the clause now before the committee. The “ cold “ war enters into this discussion incidentally, it is true, but the question before the Chair is whether a declared organization should have a right of appeal. What that has to do with prices and costs is difficult to discover.
The TEMPORARY CHAIRMAN”.There is no point of order.
– The AttorneyGeneral apparently thinks that the Opposition will swallow any term that he uses without seeking a definition of it. There is an obligation on the AttorneyGeneral to tell us in plain language exactly what terms such as “ cold “ war mean.
– Those words are not in the bill.
– But the AttorneyGeneral and other honorable senators opposite used them, obviously in an appeal to the prejudices of the people rather than to their powers of reasoning. If honorable senators opposite have a good case to offer, they should state it in plain language instead of resorting to meaningless terms which only confuse and mystify the people. In the absence of a precise definition, I should define “ cold “ war as economic warfare, out of which military warfare develops. In Australia to-day there is a. “ cold “ war that may lead to widespread strikes. So far, the Government has not shown any inclination to do anything to prevent a continuance of that “ cold “ war. This legislation, and particularly the clause now before the committee, as Senator McKenna convincingly showed, is needed to suppress those who would resist the continuance of the “ cold “ war. I refer to members of the trade unions, who, under the wide definitions contained in this measure, could be classed as Communists or “ fellow travellers “. The Government has not attempted to give us a clear definition of “ communism “. The bill refers loosely and in general terms to the teachings of Marx and Lenin.
– I rise to order. I submit that the committee is not now discussing the definition of communism.
– In the absence of an explanation, one is justified in judging what is said in the light of one’s knowledge and experience. When I hear these terms used as they have been used repeatedly in the course of this debate I ask myself what they really mean. I have listened patiently for a clear definition but none has been given; yet we are expected to accept the assumptions of the Attorney-General and his colleagues. There must be some reason for this proposed departure from the accepted processes of the law, and from what is stated to be the foundation of British justice: the principle that a person - and here I include an organization - is assumed to be innocent until the accuser has succeeded in proving him guilty. As one who has seen many injustices perpetrated in the name of the law, I am naturally very sceptical, and I should consider myself remiss in my duty if I were not to join issue with the Government, and request a more adequate explanation than we have been given so far. I do not accept the Prime Minister’s statement that, technically, we are still at war. I do not agree that the Government is justified in departing from the rule of law, simply because, in the judgment of the Prime Minister, or of the AttorneyGeneral, we are technically still at war. That view is not taken in other countries. It has certainly not been taken in the United Kingdom. Are we to understand that the Attorney-General and the Prime Minister of this country are better authorities on law than there are in the United Kingdom? Honorable senators opposite may believe that to be so, and they are entitled, to .their opinion, but I am not prepared to accept arguments based on mere assumptions. As I have said, I have seen injustices done under the law, and I am sceptical. All the powers that the Government requires can be found in existing legislation. The Public Service Act has been sufficient to deal with Dr. James, and others. There is also the Crimes Act and the Defence Act. If we are technically at war, then there is no reason why the Government should not use the Defence Act, provided, of course, the people of this country will accept the Government’s arguments ex cathedra. I see no reason that would justify the Opposition in supporting the AttorneyGeneral’s contentions and, unless he is prepared to give better reasons than he has given so far, we shall vote solidly for the amendment that has been moved by Senator McKenna.
Sitting suspended from 5.5S to 8 p.m.
– The Opposition does not propose to continue this discussion more than a few moments. It presses for the inclusion of the amendment in the measure that is before the committee. I believe that the Opposition has made out a strong case. It has pointed out that a declaration could be made’ against an organization, first, to the effect that it is Communistinfected; and, secondly, that its activities are prejudicial to security. The bill proposes an application to the court on the first allegation in that declaration, but denies it completely on the second one. The Opposition has demonstrated beyond the possibility of contradiction by the Government, that in that case all processes of law and all recourse to the courts would be completely swept aside. The most damning indictment that could be levelled against any organization, which is that it is treacherous and dangerous to security, would stand without any particulars of that allegation being supplied and without the organization concerned having an opportunity to approach any court. The one answer from the Government is, in effect, “ We, the Executive Council responsible for the security of this country, have spoken. We have passed sentence of death “.
– And have accepted responsibility.
– .” Have accepted responsibility “, if the honorable . senator likes, and have passed sentence of death upon an organization. The Government bases its whole case for sweeping aside the processes of law and of the courts of the land on that bare statement that security is involved and that it dare not put its security officers in the witness-box. I venture to say that within five minutes of the Senate adjudicating on this amendment, the Attorney-General will stand up in this committee and undertake that if a declared organization sacrifices one more right which is held by every accused, the right to stay out of the witness-box, the Government security officers will go into the box and give evidence.
– Because of what?
– Being subversive to this country and against its security, and I do not know of any worse charge that could be levelled against an organization or an individual.
– That is why I am surprised at the honor able senator supporting it.
– I repeat that I know of no worse charge. The indictment of the Government by the Opposition is that no recourse to law will be permitted on a serious charge which involves a crime of the highest or lowest degree according to one’s point of view. Everything is to stand or fall on the mere say-so of the government of the day, whether it be Liberal and Australian Country party, Labour party or any other conglomeration. The mere dictum of a government is to determine that matter, and the Attorney-General’s reason is that security is involved and that the Government dare not put its evidence before the court. Yet, in five minutes’ time, the Attorney-General will undertake in certain circumstances to do so. If the Government were consistent, it would refuse to submit evidence in all circumstances. If there is virtue in its argument that matters involving security cannot he mentioned and are so dangerous that they cannot be put before a court, the rule should apply throughout. But the Attorney-General is prepared to waive thatrequirement if an organization sacrifices one of its normal legal rights to sit back, hear the case against it, and not enter the witness-box.
– That is on the other issue.
SenatorMcKENNA. - It is relevant to this issue in that while the AttorneyGeneral claims on this particular point that security prevents him from putting anybody into the box, he is prepared to put security officers in the box and disclose evidence in other circumstances. The Attorney-General admits that there will be no declaration without full Cabinet approval, but that Cabinet will have, in his own words the soundest possible evidence.
– The honorable senator does not complain about that?
– No, but the Attorney-General acknowledges that it will have that evidence. If evidence is available concerning an organization or an individual to show that it or he is subversive in the slightest degree, the Government and the Attorney-General as its chief legal officer have a plain duty to prosecute those people in the name of the country and the people of Australia. There is no virtue in the argument that security prevents the process of law and of the courts from operating, because as the committee will find, the AttorneyGeneral will throw the argument away on the onus of proof clause. The Opposition has developed its case so thoroughly that I do not ‘propose to pursue the matter further.
Question put -
That the words proposed to be left out (Senator McKenna’s amendment) be left out.
The committee divided. (The Chairman - Senator T. M. Nicholls.)
Majority . . . . 11
Question so resolved in the affirmative.
Amendment agreed to.
– I move-
That sub-clauses (4.), (5.) and (6.) be left out, with a view to insert in lieu thereof the following sub-clauses: - “ (4.) At the hearing of the application, the applicant shall begin; if evidence is given in person by such officer or officers of the applicant as the court is satisfied is or are best able to give full and admissible evidence as to matters relevant to the application, the burden shall be upon the Commonwealth to prove that the applicant is a body to which this section applies, but, if evidence is not so given, the burden shall be upon the applicant to prove that the applicant is not a body to which this section applies. “ (5.) Upon the hearing of the application, the declaration made by the Governor-General under sub-section (2.) of this section shall, in so far as it declares that the applicant is a body of persons to which this section applies, be prima facie evidence that the applicant is such a body.”.
The bill in its original form provided that a body which had been declared to be an illegal organization could apply to the court for an order that it was not an organization within the meaning of the section. It was contemplated in the bill as originally drawn that the onus of proof rested on the a.pplicant organization to establish that it was not the kind of organization referred to. There has been a good deal of discussion about the onus of proof. The provision was cast in its original form because the matters to be inquired into by the court would be peculiarly within the knowledge of those in charge of the organization that made the application. In those circumstances, we suggest, there would be no hardship whatsoever in requiring those persons to go into the witness box, and submit themselves to cross-examination in relation to matters about which they would know much more than any one else. It was with a view to insuring that responsible officers of a declared organization would go into the witness box for cross-examination that the clause was cast in its original form, which placed the onus of proof on the organization. The Government is prepared to amend the proposal so as to make its original intention perfectly clear. There has been a lot of very loose talk about the onus of proof. It is possible to refer to many statutes, some of them passed while a Labour Government was in office, in which the onus of proof is placed upon the defendant. Other statutes which contain the same provision were allowed to remain in force by a Labour Government during the last eight years.
– That was in wartime.
– I have in mind legislation which had nothing in particular to do with the war. The Customs Act is an example of legislation in which the onus of proof is placed upon the defendant in relation to matters which are criminal.
– That provision is not particularly popular with members of the legal profession.
– If we are going to discuss the legal aspect of the matter we ought to recognize that, in some circumstances, even the common law, apart altogether from statute law, provides that, because of the peculiar knowledge of the person concerned, he shall be required to explain how he is in a certain situation.
– We shall alter that.
– The Labour Government was in power for eight years, but it did little to alter the law in that respect. One of the clearest examples of wha t I am discussing is what is known in law as the doctrine of recent possession. For instance, if a man is found in possession of goods suspected of being stolen, he can be called upon to explain how they came to be in his possession. That is in the realm of criminal law, but this legislation is not dealing with criminal matters.
– What about treason ?
– Organizations covered by this clause will not necessarily have committed treason. We may assume for our present purposes that the organization concerned is one which, if it continues to exist, may commit treason. The government of the day, which is responsible for the security of the nation, may have come solemnly to the conclusion that the organization, if it continued to exist, might commit acts which would constitute treason or sabotage; yet the Opposition now says that such an organization must be allowed to continue to exist until it actually commits treason.
– The Government might have a Sharpley as as informer.
– No matter who acted as informer, the Government would art in a reasonable way. The Opposition must face the fact that it is prepared to allow the continued existence of an organization which is likely to commit treason. The Opposition wants that organization to continue in existence until it actually commits treason.
– That is not true.
– That is the logical conclusion to draw from what members of the Opposition have said.
– That is the Attorney-General’s interpretation.
– That is the plain English of the matter. Let us discuss an example. I hesitate to mention the Australian Peace Council, .but let us consider an organization calling itself the Australian Patriots ‘Council, because the Communists are quite capable of forming an organization, and giving it that name. Let us assume that the organization consists wholly of persons who have been members of the Communist party, and that it is carrying on activities precisely the same as those that the Communist party is carrying on to-day. The Opposition says that such an organization shall not be banned, even though the Opposition has already agreed to the banning of the Australian Communist party itself.
– It should not be banned without trial.
– Yes, a trial in which the Government is to be called upon to satisfy a jury beyond all reasonable doubt that the organization is subversive. If the jury is uncertain about the matter, if it really feels that the organization may be subversive, although it is not convinced beyond all reasonable doubt, then the subversive organization is to be allowed to remain in existence, and to continue its subversive activities, presumably until this country is sold right down the drain. The Government’s proposal is perfectly reasonable, and it should not be forgotten that this legislation may be administered by a Labour government at some time in the future.
– We watched the Communists for eight years.
– They are still operating.
– They are not very effective.
– They still seem to be effective, and the fact does not astonish me when I consider the performance that members of the Opposition are putting up to-night. It is being claimed by members of the Opposition that a subversive organization shall continue in existence unless the government of the day can satisfy a jury that it is subversive, and the Government must do that without being able to put the officers of the organization, such as the president, secretary and members of its executive, into tho witness box where they might be convicted out of their own mouths. If that is how the situation would be dealt with if a Labour government were still in office, it is just as well that the Labour Government was removed from the treasury bench at the recent general election. The authorities in the United States of America have had to deal with this problem. I happen to have in my hand a decision of the Supreme Court of the United States of America, delivered on the 8th May last, and it is interesting to note that in the United States of America it has been found necessary to take the same kind of action as we are proposing to take now.
– Is there in the United States of America legislation of the kind now being submitted by the Australian Government ?
– An act has been passed in the United States of America, which requires an affidavit to be filed with an arbitral body that members of the Communist party are not in control of unions that take advantage of arbitration proceedings provided for under certain legislation. The validity of that act was considered by the Supreme Court of the United States of America.
– The AttorneyGeneral (Senator Spicer) is referring to a report of the un-American Activities Committee of the United States Senate.
– No, I have before me a copy of the decision of the Supreme Court of the United States of America. Honorable senators opposite might learn much from studying this report, and our good friend, Senator Morrow, might revise some of his ideas if he were to read it. The court was called upon to decide whether the act in question was valid in the terms of the constitution of the United States of America, and Mr. Justice Jackson, a most distinguished member of the court, had this to say -
Our Constitution is not a covenant of nonresistance towards organized efforts at disruption and betrayal of the country.
I point out that neither is our law a covenant of non-resistance towards organized efforts at disruption, and the betrayal of the community. This attempt to use the principle of onus of proof, which has its proper place in our legal system, so as virtually to insulate traitorous organizations against proper attack by the community is not to be encouraged. I believe that all persons who seriously desire to get rid of the Communist cancer in our community will support this legislation. Those who desire to protect disruptionists will vote for the proposals which, I have no doubt, the Opposition will put forward.
– This is the “third version of the onus of proof provisions to be presented by the Government.
– We are not ashamed of that.
– The measure, in the form in which it was introduced -into. the House of Representatives, plainly placed the onus of proof upon an accused organization. The hill comes to us in its present form, as the result of an amendment moved by the Government and accepted by the House of Representatives, which preserves the principle of placing the onus of proof upon an organization accused, cited or declared, whichever term be appropriate, in the fullest possible way. Now, under pressure by the Opposition, large sections of the Australian press and very many people holding liberal views - the word “liberal” in that context is spelt with a small “ 1 “ - the Government has introduced the third version in which it has made some concessions to us. The proposal to leave out sub-clauses (4.), (5.) and (6.) will not be opposed by honorable senators on this side of the chamber. We shall vote for the deletion of those sub-clauses in their present form. But we shall vote against the proposal to insert the new sub-clauses contained in the amendment. At a later stage, we shall move that other sub-clauses be inserted, which will place the onus of proof where it fairly belongs, that is, entirely upon the Crown.
Let me point out to the AttorneyGeneral (Senator Spicer) a difficulty to which the amendment that he has moved will give rise, if it be the only amendment to this clause that he proposes to move. A few minutes ago, the Committee agreed to an amendment which provides that an application to a court by an accused organization may be made in respect of two allegations, first, that the organization is Communist-affected ; and, secondly, that its activities are prejudicial to the security of the Commonwealth. The amendment moved by the AttorneyGeneral deals only with the allegation that the organization is Communistaffected. It picks up the onus of proof, subject to a condition with which I shall deal later. Having regard to the amendment agreed to by the committee a few minutes ago, the Crown will, if this amendment be accepted, carry the full onus of proof in relation to the serious allegation that the organization is seditious or prejudicial to security. On the allegation that the organization is Communist-affected, the onus of proof will be carried by tb« Crown only, after certain conditions have been fulfilled. If nothing is said about it, in a matter like this a court will place the onus of proof firmly upon the Crown. It will follow the normal processes of law. I point out to the AttorneyGeneral the difficulty that will arise from the amendment he has moved. I hope that I have said enough for him to appreciate the point that I am making. It may he necessary for him to move another amendment. If the clause is amended as proposed by the Government, the Crown will, in effect, concede that the onus of proof must be upon it in relation to the allegation that an organization is prejudicial to the security of this country.
– Surely we can discuss the real issue. Little points like that can easily be fixed up.
– This is a point that bas not been fixed up. We are considering the Government’s amendment. If the amendment were accepted, the onus of proof in relation to the more serious allegation would plainly fall upon the Crown, and in relation to the other allegation it would be carried by the accused for a considerable period. That indicates to the committee how illconsidered are the amendments proposed by the Government. This is not a matter of no consequence. It is a very serious matter, to which I direct the attention of the Attorney-General. On the face of it, it represents a complete inconsistency.
Now, to oblige the Attorney-General, lel me come to the real merits of the amendment that he has proposed. Proposed sub-clause (4.) reads as follows: -
At the hearing of the application, the applicant shall begin. . . .
The applicant is the organization. Nobody with any legal knowledge will say that that would not immediately reverse the ordinary procedure, which is that a person alleging a fact or making a charge shall begin.
– The organization will be alleging a fact. It will be alleging that it is not an organization to which the provision applies.
– The GovernorGeneral will have alleged a fact against the organization. “
– No: Senator McKenna has misread the clause.
– The proceedings begin with a declaration made by the Governor-General in Council.
– They begin with an application to the court.
– Would Senator McKenna like an adjournment in order that he may read the bill?
– I should like the Minister for Trade and Customs (Senator O’sullivan) to show more interest in the debate upon a measure which ho introduced and which he has sponsored, and from the deliberations upon which he has been conspicuously absent for many hours.
– We still have Cabinet meetings.
– I make the point that the proceedings commence with a declaration made by the GovernorGeneral in Council. No application can be made to a court unless a declaration has been made by the Governor-General.
– But there is an application to a court.
– Let us go back to the declaration, the beginning’ of things, or, if the Attorney-General would like it in Latin, ab initio rerum. Let us consider what starts it off. It is a declaration by the Governor-General in Council.
Senator Gorton interjecting,
– I have a limited time in which to discuss this point. I do not approve of the interjections that are coming from the Government side of the chamber. I appreciate the reluctance of honorable senators opposite to hear what the Opposition has to say upon this atrocious proposal. The proceedings begin with a declaration by the GovernorGeneral in Council that an organization is, first, Communist-affected, and secondly, prejudicial to security. After that, an application may be made to the court by the organization. In normal circumstances, if the Crown alleged against an organization, first, that it was Communist-affected; and, secondly, that it was a danger to the security of this country, the Crown would begin. It is not proposed that that shall bc done. 1 point out to the AttorneyGeneral, as I have done before, the absurdities that exist in the ease presented by the Government. Let me read the proposed sub-clause (4.) and explain one thing that could happen under it. It reads -
At the hearing of the application the applicant shall begin; if evidence is given -
I direct attention to the following “words : - in person by such officer or officers of the applicant as the court is satisfied is or are best able to give full and admissible evidence as to matters relevant to the application, the burden shall be upon the Commonwealth.
The lawyers will appreciate the point that I am about to make. A person who enters the witness box, is sworn and gives his name and address has given evidence to the court. A person in the witness box has the right to refuse to answer questions that may tend to incriminate him. Under the proposed amendment, all of the officers of an organization may enter the witness box and give their names and addresses. They may even say - although they could refuse, very properly, to do so - that they are officers of the organization. At that point, they may refuse to answer any further questions on the ground that their answers might tend to incriminate them. Immediately they have done that, the onus will, if the amendment be accepted, shift from the applicant to the Crown. That is a position that could arise if the amendment were accepted.
– Li Senator McKenna complaining of that?
– If that be correct - and apparently the AttorneyGeneral does not dispute it - why should not the Government do the right and proper thing and accept the onus of proof from the beginning, in accordance with the ordinary concept of law?
The Attorney-General and other members of the Government have said that we are not dealing with a crime. I say that no more serious allegation could be made against an organization in any country than that it is a danger to the security of the country. I challenge honorable senators opposite to tell me of any more serious allegation that could be made against any organization. I agree entirely with those who say that it is, in effect, a charge of treason. It is quasi-treason. It is sedition. It has implicit in it espionage, sabotage, and other crimes referred to in the bilk
A learned Chief Justice of the High Court of Australia, dealing with the question of the onus of proof, said, with complete and warm approval, that the principle underlying the concept that the. onus of proof must rest upon the Crown and that an accused must receive the benefit of any reasonable doubt is that it is far better in society that 99 guilty men should go free than that one innocent person should be wrongly convicted. That is the proposition that he put forward firmly and strongly. On this occasion the Government wants to reverse that position entirely. It adopts the attitude that it would be better for 99 innocent people to be wrongly convicted than for one guilty man to escape. That is, in effect, the stand that the Government is taking in relation to this bill. It is idle for the AttorneyGeneral to cite exceptions to the rule of law. They exist, but many of them are not justified. He referred to a charge against a person of being in possession of goods reasonably supposed to have been stolen. In a case of that kind, the accused has the task of satisfying the court beyond reasonable doubt how he came into possession of the goods and that his possession of them is lawful. That is an a trocious position in which to put people. When I have been consulted by clients charged with that offence, I have gone to the police department concerned and pointed out to the officers of the department the enormity of what they were doing. I say, to their credit, that when I have pressed the matter they have altered the charge from one of receiving stolen property - under which an accused has no chance, and the ordinary processes of proof are thrown aside - to one of theft. I have never defended a client charged with that offence without indulging in the most severe criticism of the fact that such a charge has been made. I invite honorable senators to think for a moment of the difficulties that they would be in if any one of them were asked to account for his possession of his toothbrush or his hairbrush. How would he begin to show where he had got it from, or what he had paid for it? There would be many thousands in Australia. The AttorneyGeneral has pointed to that charge as one in which the onus of proof is placed upon the accused. It is to the credit of the police departments of Australia that they use it very rarely.
– Order ! The honorable senator’s time has expired.
– Senator McKenna is very well informed upon the legal aspects of this matter, and I believe it would be of advantage to the committee if he were given an opportunity to continue his remarks.
– I should like Senator McKenna to explain his earlier attitude on this measure, when he stated that there could not be a trial unless there was a charge. This is not a traffic offence. We are not dealing with a matter concerning a motor car, but. something which hits at the security of our country. The honorable senator had the opportunity of disagreeing with the recitals in the bill and did not do so. Honorable senators supporting the Government believe that communism is a really live menace that threatens our way of life.
– We have not yet reached the recitals. We shall have something to say about them when we come to them.
– The secondreading debate on the measure has been completed. It is a remarkable thing that there are two types of people in thU country that want to see this bill deferred. I refer to the Communists and to the members of the Australian Labour party. The Communists are attempting to stage strikes to prevent this bill from coming into operation. Honorable senators opposite, also, are attempting to delay the passage of the measure. Quite frankly, I am very friendly with many members of the Labour party. I have played football with them and have been on service with them. I know that not only some honorable senators opposite, but also their children have fought to preserve our way of life.
– I rise to order. Is the Minister speaking to the clause before the committee?
– The Minister will be quite in order if he connects his remarks with the clause.
– We believe in preserving the way of life that we have fought for.
– Is this a sob story?
– Although some honorable senators opposite may sneer, the Government is attempting toprotect itself against subversive activitiesSenator McKenna made a very erudite speech but it really did not connect with the terms of the measure before the committee.
– Order ! Is the Minister reflecting on the Chair?
– No. Not at all. The point that I am trying to make relates to the onus of proof. A government must have in its hands the means of protecting itself, otherwise it may be destroyed.
Senator McKENNA (Tasmania) [S.49J. - I should like to complete the remarks that I was making before my time expired a few minutes ago. I had dealt with the instance of a man charged with being in possession of goods reasonably suspected of being stolen. I had made the point that the police of Australia rarely have recourse to that charge, “but when they do, if n lawyer who knows his business approaches them in the interests of his client, they frequently do the right and decent thing and substitute a charge of theft, where they, and not the accused, carry the onus. That is how that law operates in practice. The Attorney-General (Senator Spicer) admitted plainly and frankly that no organization and no individual would be declared unless on the soundest possible evidence. There would be no declaration on. mere suspicion. He stated further that the Attorney-General would have all the evidence required to justify his signature. In the case we are considering the Attorney-General would not be in difficulties about previous character. He would never have made the declaration otherwise. In his own words, he would have all the evidence but he would want to keep it to himself. He would prevent a person from exercising his normal right under the rule of law, that is, to give no evidence on oath or otherwise if he chose not to do so. The other right he would enjoy would be that the Crown would carry the onus of proving his guilt affirmatively and beyond reasonable doubt. In effect, the Government is saying to such men, “ We will take away one of your rights, that is, to stay out of the box until you have heard what is alleged against you. If you surrender that right we will allow you to retain the other right that you have already, and we will carry the onus of proof “. That is the outrageous proposal of the Government under the amendment before us. In short, the Government asks the organization, or, as we shall see the individual, to abandon -one right for the sake of keeping another that he already enjoys.
– The honorable senator will convince himself of this soon.
– I hope to convince the Government. We are endeavouring to do so. I think that the Government is gravely disturbed by the reaction of a lot of people in this country as well as of the Opposition. I am not so sure that all supporters of the Government in this chamber are happy about the measure. I completely refuse to believe that the lawyers sitting opposite are happy about this type of provision, having regard to their training. The Government has very grudgingly conceded some of the due processes of law, and it will accept the onus of proof if the organization surrenders one of its great rights. What is it going to achieve then? The Crown will put its witnesses into the box and disclose its evidence and prove its case beyond reasonable doubt.
– Not beyond reasonable doubt; this is not a criminal offence.
– The AttorneyGeneral said very plainly in connexion with the amendment-
– The honorable senator should look at his second-reading speech.
– The Minister said that the onus would be on the Crown.
I venture to say that the courts have a very much nicer appreciation of criminal or quasi-criminal matters than the Government has, and the courts apply the strictest forms of proof and procedure. Although criticisms are levelled at the judiciary from time to time I have yet to learn of a judge in this country - whether he favoured me personally or not - who was not most scrupulous in applying that attitude in every case before him of a criminal or quasi-criminal nature. I am sure that the AttorneyGeneral would not deny this assertion.
– But this is not a criminal matter.
– It is not enough for the Attorney-General, from a broad technical viewpoint, to say that this is not a crime, because in fact an organization cannot be imprisoned. How could an intangible thing like an organization be imprisoned ? Of course, it can be fined and its officers gaoled.
– If the Government has the courage to do so.
– That was done by the Labour Government.
– It was done by the courts.
– The position is that the organization is to be asked to abandon its common law right, established down the centuries, not to go into the box and give any evidence until it knows what is alleged against it and gets the opportunity to cross-examine witnesses for the prosecution. It has to throw that away in order to preserve the other right that the burden or the onus - if the Attorney-General wants to quibble about words - ought to be on the Commonwealth.
– Why did not Labour repeal the Crimes Act?
– If the Minister had read the Crimes Act he would know that it deals principally with offences relating to the coinage, the person, and the property of the Commonwealth, and he would not be so light-heartedly suggesting that that legislation should have been repealed. It would have been madness to repeal it.
– Then why does the Opposition want to stop this bill?
– I make it perfectly clear to the Minister that the Opposition is not seeking to stop this bill. We have already passed the clause that will allow the Government to ban the Communist party and take its property. We have also conceded and allowed the clause that will enable the Government to follow the Communist party into any form of organization. It is futile for the Minister to say that we want to stop this bill when we have conceded the banning of the Communist party and the pursuit of its auxiliaries down to the remotest form. The one thing that we ask the Government to do is to have due regard to the processes and canons of the law, and to give access to the courts of the land to persons concerned. That is not stopping the bill; it is helping the bill. It will confer on organizations and individuals the right against arbitrary action by the Executive. The Government sets itself up as an authority to determine organizations that are prejudicial to the security of the country, and it will not allow anybody to gainsay its word. The Minister asked me to refer to a statement that I made in the course of my second-reading speech. I was referring at that time to the Stevedoring Industry Commission, on which was represented the Waterside Workers Federation and the shipowners of Australia. Those representatives were selected by the respective bodies that they represented. The Attorney-General inquired by interjection whether I would remove them without trial. I replied by asking him how there could be a trial without an offence. The Government claims that the members of the Waterside Workers Federation sabotaged the work of the commission. I have already pointed out to the Minister that what he is alleging is treason or quasi-treason, subversion, espionage, or sabotage. Yet he avers that that is not an offence. I make it perfectly clear that I still adhere to my original opinion that there is not a trial without an offence. What would be alleged against an organization under this bill is the worst crime of which’ it could be accused. ‘
– W 11 the honorable senator tell the Senate how the Government of which he was a member weeded the Communists out of the Public Service without trial?
– No, I am not prepared to do that. I am not prepared to make a statement upon, the action that was- taken because I regard it as confidential. However, I inform the AttorneyGeneral that no permanent member of the Public Service was removed from office.
– Were there any appeals ?
– All the procedures for appeals against transfer and so on remained in force. The Minister for Trade and Customs (Senator O’sullivan) said, in what I feel must .have been an unguarded moment, that only two classes of people were opposed to the bill - the Communists and members of the Australian Labour party. That is part of the wicked propaganda that has been disseminated against this party during the last three years, and I regret to say that it was repeated recently by the Prime Minister (Mr. Menzies), the Treasurer (Mr. Fadden), the Leader of the Government in the Senate, and the Minister for Fuel, Shipping and Transport (Senator McLeay) and other members of the Government. That allegation is an outrageous untruth. It is confounded by all the facts of the action taken by Labour against communism, and I remind the Government that recently I recited ten of those acts. I expressed the hope then that people who had been accusing Labour of favouring the Communists would, in the light of those facts, and of the positive averments of the Australian Labour party, hang their heads in shame for their action, if not for their ignorance.
– Give us the bill, then.
– All I say to the Leader of the Government is that he has no excuse for ignorance.
– I have listened carefully to the . legal argument that has taken place, and it appears to me that there is no analogy between the onus of proof in a criminal trial and the onus of proof in a procedure under this clause. The procedure that will be followed under this clause appears to me to be more in the nature of a quasi-judicial determination made in the Public Service. It is a fact that in the United Kingdom the Attlee Government dismissed a number of public servants on the ground that they were Communists. That is not denied, and, as far as I know, no right of appeal was given to the dismissed public servants. Senator McKenna has admitted that certain public servants were dismissed by the previous Labour Government. Apparently they were temporary public servants. However, the contention now put forward by the Opposition is that the retention of his position by a trade union official is much more important than the security of the country. The only other observation that I desire to make is that whilst there may be some virtue from the legal, technical point of view in Senator McKenna’s amendment, he has not convinced me that under this clause any real injustice will be done to members of the community. In fact, while listening to him I became convinced that no injustice would .be done by the clause.
– The Government has adopted a peculiar attitude in its attempts to justify the clause. It has stated, in effect, that because of the severity of the penalty it will be guided in “ declaring “ individuals and organizations by the comparative seriousness of their activities. Members of the Government have vacillated in their attitude on this clause. Although the AttorneyGeneral (Senator Spicer) has admitted that the bill provides a serious penalty, the Minister for Trade and Customs (Senator O’sullivan) has contended that the offence for which the penalty is provided is not punishable. I remind members of the Government that the bill deals not only with public servants, who are entitled to protection, but also with persons outside government employment. Ordinarily, any member of the public service is entitled at law to redress for any scandalous assertion or defamatory statement made about him, or for wrong ul dismissal from ‘his employment.
Reference has been made to the consequences of this legislation to industrial organizations that may be deregistered under the laws of the Commonwealth or of a State. The Labour party is not in sympathy with Communists who promote industrial disorder. It has withheld funds from, and refused affiliation to, members of bodies that are dominated by Communists. However, the Labour party does permit such bodies and their members to appeal to its executive against a decision adverse to them. I am concerned with the implications of the clause insofar as they may affect the members of a trade union which has been deregistered. Most deregistrations have followed strikes in which unions have participated, but it cannot be contended that all strikes are unjustified. The fact is that under this- clause the moment a union is deregistered the Government could declare any or all of its officials under the bill, and remove them from office. That would introduce a state of affairs similar , to that which obtained in Germany under the Nazis. The trade union officials removed from office will have no right of appeal except the limited right provided in the clause, under which they will be called upon, not to answer a specific charge, but to make and substantiate a negative assertion. The declaration may not even be based on the strike, but on some other obscure ground. The net result will be that members of that organization will be denied recourse to the rule of law. We have no guarantee that the power to declare organizations will be used temperately. It may be that some extremist government of the future may abuse this extraordinary power.
The right of appeal which the clause provides is inadequate and contrary to the whole spirit of British law. An individual who has been declared will suffer considerable damage not only to his reputation but also to his prospects of obtaining further employment. Nevertheless, he will not be entitled on appeal to be confronted with a specific charge which he can go into the witness box and disprove. The only right that he will have will be to attempt to prove a negative, that is, that he is not a Communist. We all pride ourselves that this is a
British democracy, and we cannot permit such an unjust provision to remain part of the bill. A man is entitled to know specifically the charge that he has to answer, and the public is entitled to know why an individual has been declared, and, possibly, removed from office. The exercise of- such an extraordinary power as the right to declare individuals and organizations will pave the way to political nomination “, which characterized nazi Germany and occurs in Russia to-day. If the Government is sincere in its attempts to deal with subversive elements, it already has all the powers to do so. Why does it not use them? I do not believe that any honorable senator opposite, including the Attorney-General himself, really believes that an individual’s rights should be placed in jeopardy and that he should be denied redress at law. If members of the Communist party are engaged in a conspiracy to overthrow the Government by violence, and the Government has evidance of that fact, it could take action more effectively and more quickly under the existing law than it could under this legislation. However, since the Government desires to introduce this legislation it is our duty to oppose those provisions in it which would abrogate all the civil liberties for which we have fought.
.- A. great deal of legal argument has taken place on the clause under discussion, and I am not qualified to enter into the intricacies of that argument. However, the position appears to me as a layman to be that when an organization is declared under the bill, and its representatives desire to appeal against the declaration, they will go to the court, and the Government will then have to show that it is a Communist organization, or, to use Senator McKenna’s words, it will have to be shown beyond all shadow of doubt to be a Communist organization. One would imagine that in view of that provision honorable senators who have already agreed to the Communist party being dissolved without trial would say : “ Since this organization has been shown beyond a shadow of doubt to be a Communist organization, then it should be declared “. That, however, is not the attitude adopted by members of the Labour party. Notwithstanding that they agree that the existence of the Communist party is a menace to the country, they are not satisfied that even when an organization has been shown to be a Communist organization that organization shall be declared ; they would also require that the organization shall be shown to be guilty of some overt act of treason. Only in those circumstances will they agree to the organization being dissolved. However, they go even farther than that, and demand that, even after the Government has proved that an organization is a Communist organization, and has shown that it has been guilty of some overt act of treason, the Government’s investigating officers should enter the witness-box and reveal their identity and their sources of knowledge. The Opposition’s demands will have the effect of making it almost impossible to show that any organization should be dissolved. It will be necessary to prove that it has committed some overt act of treason, and, in order to prove the act of treason, the Opposition desires that the Government’s investigators should come into the light of day with their agents and disclose the nature of their activities.
– No mention of treason is made in the bill.
– The bill does mention subversive activities and “ activities prejudicial to the security and defence of the Commonwealth “. I am not a lawyer, but it appears to me that such activities very closely resemble treasonable activities. The Opposition desires that the Government shall be required to prove not only that the purpose of an organization that has Been declared is treasonable, but, in addition, that it has been guilty of overt acts. When a Communist organization has been dissolved for good and sufficient cause, its members may very well infiltrate other satellite bodies, such as the Australian Peace Council, or some body which calls itself, say, “ the League for the Preservation of Political Democracy “, and it will be necessary for the Government once again to go through the whole process of proving that the purpose and activities of that organization are prejudicial to the security of the nation. It will also be necessary for the Government to show that .. the membership of the body in question is substantially the same as that of the Australian Communist party, and that the organization has committed some overt act of a subversive nature. If we amend the bill as the Opposition suggests the bill would be worse than useless for the purpose for which it is designed. Some members of the Opposition have said all along that the bill will not work and that they hope it will not work, and it is evident that they are determined, by inserting the amendment moved by Senator McKenna, that it will not work. Therefore, I do not believe that the Senate should, in any circumstances, accept the amendments to this clause that have been foreshadowed by the Opposition. If an officer of an organization is innocent, why should he not go into the witness box and say so?
– “Why should he be declared at all?
– I cannot see how an inquiry could be conducted without first stating what the inquiry was about. There seems to be some difference of opinion among legal men about when court action actually starts. Apparently, it does not start immediately a declaration has been made. It does not start until an application has been made to a court by the declared person. The whole point is that if the Opposition’s amendment be accepted, the course that I have explained will be followed. Organization after organization will be established. It will not be possible to follow the Communist party into all its new forms. Although the Opposition apparently is prepared to have the parent body declared, it is not prepared to have the declaration extended to the new forms in which the Communist party will manifest itself, even if their Communist character is proved beyond a shadow of doubt. Because of the illogicality of the Opposition’s proposed amendments, and because they will defeat the whole purpose of the bill and make a farce, of it, I hope that the committee will not accept them.
– I rise mainly to express my disgust’,at this clause in the form in which it was originally introduced into this chamber. I realize the difficulties involved in framing a measure such as this. I have listened intently to the legal arguments that have been advanced from both sides of this chamber. Like Senator Gorton, I do not claim to be able to adjudicate on those arguments, but I arn] convinced that this clause represents a disastrous departure from the British tradition and the British way” of life. In its present form it is repugnant to every Australian citizen. Much has been said about nations that have crumbled in Europe during the last 20 or 30 years. Whether their downfall was at the hands of the Communists or the fascists, I defy honorable senators opposite to point to one that gave a trial of any kind to those who constantly fought for the retention of human freedom. Can honorable senators opposite mention one leader of Christian thought, or political action, one trade unionist, or any other member of the community, who has had a trial that would be different from what he would get in this country if this clause were allowed to remain as at present worded? In the Woolmington Appeal case heard by the House of Lords, and reported in 1935 Appeal Cases, Viscount Sankey, the Lord Chancellor said -
Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception . . No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.
That is most striking, and, I am sure, meets with the approval of every citizen of this country. The report of the Committee on Civil Liberties presented in August, 1944, to the annual meeting of the Canadian Bar Association contained the following passage: -
Your Committee strongly recommends that the practice of creating, by legislation of any kind, a presumption of guilt against an accused in criminal and penal matters should be abandoned. In the development of the British institutions’, the presumed innocence of the citizen has become an integral part of the conscience of the people. For a long time, it has been a sacred rule of the common law.,, also embodied in our criminal code, that the.’ prosecutor, even though he be the King, has the burden of proving the guilt of the person at bar.
The rule is almost absolute in the United States. , and is formulated as follows in Corpus Juris (10 C.J. p. 534, paragraphs 1000 and 1007) : - “Accused is presumed to be innocent of the’ crime charged against him. The presumption of innocence exists in every criminal case and extends to every person and corporation accused of any crime: and it applies to every element of the crime charged.
It is a presumption both of fact and of law, is founded on the first principles of justice, and is intended, not to protect the guilty, but to prevent, so far as human agencies can, the conviction of an innocent person.”
The committee brought together essential constitutional landmarks and principles governing the whole subject-matter. They included the following: -
From the British:
The Magna Carta (1215) : - No freeman was to be arrested, imprisoned, put upon in any way except by the lawful judgment of his peers or the law of the land.
I am sure that not one member of our community would look forward with any enthusiasm to a departure from that system. I realize the Government’s difficulties in framing this measure. Throughout the length and breadth of this continent, and in other parts of the world where critics have felt themselves compelled to pen articles on this measure, mere is doubt about the outcome of this legislation if it is to retain the Government’s proposals in their entirety. For that reason, I suggest, in all sincerity, that the Opposition’s amendments dealing with the onus of proof, should be accepted. A few weeks ago, the trials of the last Japanese war criminals commenced at Los Negros. I am somewhat diffident about citing the happenings of the last war to illustrate my point, but every member of the community, particularly every ex-service man, remembers only too vividly the inhuman cruelty that was indulged in day by day by the Japanese. Those stories are not merely hearsay. Our servicemen suffered the tortures of the damned. In spite pf that, before the commencement of the trials, the leading Japanese counsel said -
Since this is the final Australian trial, I would like the world to. know that the suspects are receiving fair trial in a far-off_ spot. We hope the trials will go down in history as fair. . Here in an isolated spot, a defeated ration is given fairness and justice by an Australian Court.
The Japanese suspects, in spite of .their treatment of men and women who fought for this country, are being given the benefit of British justice; yet we on this side of the chamber are told that we should not object to this measure in the form in which it was introduced into this chamber. I sincerely hope that in the interests of common justice and human decency, the amendments foreshadowed by the Opposition will be accepted by the Government in their entirety, because I am convinced that they will assist to make this bill workable if that is at all possible.
– My approach to this amendment is slightly different from that of other honorable senators. I do not propose to attempt to discuss legal niceties beyond saying that, unable as I am, at times, to follow the law in all its refinements, in my experience the law, as it finally emerges, i9 always horse-sense. Therefore, when beset by legal difficulties, I work in a manner which, to a lawyer, would bc a reversal of the normal method. I endeavour first to determine what: is sound common sense. Then I usually discover that the law, when interpreted, yields that very answer. I suggest that the Government’s amendment is a common sense and reasonable approach to the problem. What it proposes, in effect, is that after an inquiry conducted by senior officers, of the Public Service, and a decision by Cabinet, an organization can be declared to be a Communist association. The extravagant statement that, by means of procedure involving an inquiry by senior public servants, a Cabinet recommendation ‘‘to the Governor-General, and a promulgation by the Governor-General, the Labour party or a trade union will be declared betrays the weakness of the Opposition’s arguments. Nobody in this year of grace 1950 would seriously maintain that thereis the remotest possibility of events such as that happening. The proposal is that, following the procedure laid .down, certain organizations will be : declared on the basis that if they accept their guilt and make no appeal, that is the,, end of it, but if the people concerned protest their innocence,’ the Government is to be put to the test to prove their guilt. At the risk of being wearisome I shall cite the circumstances in which that procedure is to be adopted. The circumstances are” set out in the preamble of the bill -
And whereas the Australian Communist party also engages in activities or operations designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic, industrial or political ends by force, violence, intimidation or fraudulent practices;
And whereas the Australian Communist party is an integral part of the world Communist revolutionary movement, which, in the King’s Dominions and elsewhere, engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature. . . .
I will not go on because the preamble is well known to honorable senators. I find it difficult to understand why the Opposition, having accepted the bill in principle and accepted the truth of the statement contained in the preamble, now raises the standard of British justice and Magna Charta on this particular provision. I believe in saying what I think. That is not always pleasant. I believe that the Opposition is concerned with only on thing, and that is to take the teeth out of this bill. They give it lip loyalty and lip service, but they aim to take out its teeth so that it will not operate efficiently.
– That is nonsense.
– I can come to only one conclusion. I cannot accept the argument that extraordinary justice will be done to the people who will be declared. I think it is futile for the Opposition to contend that the Cabinet of this country, on the advice of its leading public servants and after making a solemn . recommendation to the GovernGeneral, is going to become involved in a situation in which grave injustice would occur. I take the argument a step further and say that whatever risk there may be in that .direction is justified when one considers the seriousness of the position that is contained in the preamble to the bill. It is a situation with which Australia must grapple.
I have been astounded to hear Senator Morrow say, “Prove that there is a “ cold “ war throughout the world “.
Honorable senators know, and it i? well to state these things plainly, that there is one threat to peace in this world, that that threat is through Russia, and that the Communists are the agents in Australia of Russia. I throw that in the teeth of the Opposition. ‘On this bill the Opposition proves its bona fides one way or the other. Either the Opposition is against communism or it is for communism. If it votes against this amendment, then it votes for communism and, in giving ito vote for communism, the Labour party will be repaying to the Communists portion of the debt it owes them for all the help that has been given by them over the years.
– I am sorry that the Minister for Social Services (Senator Spooner) should be so caught up in hysteria, from which this chamber should be free, particularly in dealing with this bill. He told us how Russia wants to declare war on the world.
– I did not. I said that Russia was the only threat to world peace.
– I stand corrected. The honorable senator said that Russia was the only threat to world peace and that the Communist party in Australia was out to assist Russia. That is very true and I point out for the benefit of the Minister that the Opposition has agreed to that clause of the bill which will ban the Australian Communist party. When he and the Minister for Trade and Customs (Senator O’sullivan) said that honorable senators on this side of the chamber desire to take the teeth out of the bill, they were speaking either in malice or in ignorance because the Opposition has already agreed to the provision for the Governor-General to declare a Communist under the very wide definition of a Communist as a person who is influenced by the teachings of Marx and Lenin. I refer honorable senators also to clause 24 and ask honorable senators opposite to consider whether the Opposition is attempting to take the teeth out of the bill. The clause provides - (2.) Without prejudice to the operation ot the next succeeding sub-section, proof in any proceedings under this Act that the name, initials or other means of identification of a person appear -
on a document found at the offices or premises of the Australian Communist Party at Marx House, Georgestreet, Sydney, on the eighth day of July, One thousand nine hundred and forty-nine, being a document -
It goes on in that strain. Honorable senators know of the raid that was made on Marx House in 1948, and the Opposition is allowing that provision to stand in the bill.
– How do we know? Is the honorable senator forecasting that?
– I thought honorable senators opposite bad some intelligence. They have seen the amendments. Surely they have read them, although 1 doubt even if any of their Ministers have read the bill. When honorable senators opposite say that the Opposition is trying to draw the teeth out of the bill, they are stretching the credulity of the people far too much in view of the fact that, the Opposition is prepared to allow the clauses that I have mentioned to stand. The Attorney-General has told honorable senators that they have to wait for an overt act. If honorable senators will read the bill again they will find that it says nothing of the kind.
– I said that the Opposition wanted the Government to wait for an overt act.
– Senator Gorton followed Senator Spicer on the same line. If honorable senators read the bill again it states - the continued existence would be prejudicial -
All those provisions have been allowed to stay in the bill and they confound the proposition put forward by the Government that the Opposition is trying to draw the teeth out of the bill. The Opposition has said time and again that it utters no word against the Government banning the Australian Communist party. The Opposition allows the propositions that
I have mentioned to remain to enable the Government to pursue the Communists effectively wherever it can, but if the Government is going to declare an organization, surely it will have some evidence. It may be reasonable to suspect that some of the persons whose names have been collected by the Government have been active in the Communist party. The Government has the records and to prove the case should be simple. After the raid on Marx House the State police carried out subsidiary raids to pick up the loose ends of the story and the Government has that information. I presume that at least some of the persons on the records would be members of the Communist party and it would be only a matter of linking them with the wide provisions in this bill.
I repeat emphatically that as far as guilty persons are concerned, the Opposition is not hindering the Government in laying charges at their door, but it disagrees with the proposition that there shall be a. drag-net around a couple of thousand people, or several hundred or only a few some of whom are innocent people. The Opposition says that that should not happen. It asks for the same trial for Australian people as that given to those who were charged with war crimes at Nuremburg.
– To hear, some of the speeches delivered by some members of the Opposition, one would think that thebill set out to have men shot at dawn. As a matter of fact the bill is far too moderate for dealing with men of the type that are connected with the Communist party. What does it seek to do? It seeks only to remove from office in the Commonwealth Public Service and its instrumentalities men who belong to the Communist party, and to loosen the grip which members of the Communist party have on the great industrial unions of this country. Men are sacked every day of the week throughout the big industrial undertakings of this country. There is no hue and cry or song and dance in protest against that action. The Government of which the Leader of the Opposition (Senator Ashley) and
Senator McKenna were members did not hesitate to dismiss men in certain circumstances without a declaration and without an appeal to an appropriate court. What is wrong with the provision that a man or an organization may, if declared, appeal to the appropriate court? The open and self-confessed Communist will not bother to appeal. He will accept the declaration.
– He will be proud of it.
– He will not appeal to the court so that he may be shot at in cross-examination. The Communist is prepared to die for the cause when the day of revolution dawns, as Communists have declared in their literature, and from the platform. The appeal tribunals will be approached in my opinion only by those organizations and individuals who may consider they are innocent or by those who might be able to testify that they were not Communists although they had moved in Communist circles. Members of the security service will have to present convincing evidence before the committee that is to be appointed will recommend to Cabinet that persons or organizations be declared. Cabinet will not take a chance, and will not declare any one unless the evidence appears to be conclusive. The amendment provides that if the officers of a declared organization are prepared to face the music by going into the witness box, and testifying on oath that they are not subversive, the Crown will accept the onus of proof. However, if they are not prepared to give evidence in their own behalf, then the onus of proof will rest on them. What is wrong with that? For the last 30 years and more, Commonwealth and State legislation has. contained provisions placing the onus of proof on the accused person. In my second-reading speech, I referred to the Gold Buyers’ Act of Western Australia, 1921, which provides that if a policeman or a gold assayer or a gold buyer has reason to believe that some one is in unlawful possession of gold he may require that person to explain how he came into, possession of it. If the explanation is unsatisfactory, the person may be charged, not with the theft of the gold, but with being in unlawful possession of it, and the onus is on him to prove that he came by it lawfully. If he is unable to do so, he can be convicted and sentenced to as much as two years imprisonment. In that case, the penalty is much greater than the penalty prescribed for the person who is declared under this legislation. All the Government proposes to do in the case of a declared person is to put him out of the way of temptation. Under this generous legislation, however, he is to be given a chance to “ come clean “ by giving evidence in his own behalf. What honest, God-fearing man would have any reason to fear going into the witness-box, and declaring that he was not a member of the Communist party, or of a subversive organization? The Opposition is concerned, not so much to protect the innocent man, as to help the declared person who is not prepared to go into the witness-box to give evidence. The Opposition has done everything possible to prevent the passage of this bill. Members of the Labour party come into close contact with Communists on the wharfs, on the coal-fields and in various industrial organizations. They know what damage the Communists have inflicted on the economy of the country and their attitude to this bill is difficult to understand. In March, 1947, the un-American Committee of the House of Representatives in the United States of America reported that the Communist party in that country was dominated by Moscow, and recommended that Communists should be treated as agents of a foreign power. The report cited 92 directives from Moscow to the Communist party of the United States of America which had come into the possession of the intelligence service. There is now in force in the United States of America a law which requires all Communists to register; not as members of an innocent, domestic political party, but as foreign agents. Thus, in the United States of America to-day every Communist is branded, and the Communist party is obliged to publish from, time to time the names of its members,, and particulars of the party’s finances. In a book entitled Leninism, at page 68, an account is given of an interview given by Stalin to an American Labour delegation in 1927. When asked whether any money was being sent to America Stalin said -
The Comintern renders financial assistance to the American Communist Party whenever necessary.
We may assume that if the Communist party in the United States of America is helped from Moscow, the Australian Communist party also receives help, and we know that he who pays the piper calif the tune. The preamble to the bill should be sufficient to convince honorable senators how they should act towards a measure of such outstanding importance to the country. I maintain that this bill is far too moderate, having regard to the grave danger that threatens the security of the country, the unsettled state of the world, and the attitude of Russia to the Western nations. As Senator Morrow says, we are sitting on a powder keg, although he and I have different ideas as to who might touch off the powder. No one can say when a country like Russia, which is armed to the teeth, may march against us. We do not want war. We want peace, but if war is forced on us, what then? We should do what is necessary, by legislation of this kind, to minimize the danger that threatens us. It has been demonstrated that in the Western democracies there are men whose loyalty is to Russia rather than to the land of their birth. That is the unique feature of our time, that there are men who are prepared to betray their own country in the interests of a foreign power. Senator Critchley said that this legislation represented a departure from the British way of life, but that statement is not true. It is in accordance with the best British traditions.
– Order! The honorable senator’s time has expired.
– I repudiate the accusation that members of the Opposition are deliberately delaying the passage of this bill. As many honorable senators have spoken from the Government side of the chamber as from the Opposition side, and honorable senators opposite are :doing their best to provoke the Opposition by ‘ con tinuing to discuss that part of the bill which deals with the banning of the Communist party. The Opposition has given the Government every assistance in the passage of that part of the bill. I quote the following from the preamble to this measure : -
Whereas the Australian Communist Party is an integral part of the world Communist revolutionary movement, which, in the King’s dominions and elsewhere, engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature . . .
We have said to the Government, in effect, “’’ You say that those are the activities in which the Communist party and its members are engaged. We accept those statements.”
– Does the honorable senator believe them to be true?
– I believe them to he true, as much as does the AttorneyGeneral (Senator Spicer). Having accepted those statements, we have said to the “Government, “Deal with the Communists “. If they are guilty of everything of which they are accused in the preamble, the bill is too mild. I think that the Attorney-General will agree with me upon that. What does the Government propose to do? It proposes to take no action against the Communists other than to brand them as traitors to this country. It will leave them free to infiltrate any organizations that they may select.’ The members of those organizations will not know individual Communists by sight or by name, but when they have infiltrated the organizations and captured key positions in them, peace officers will inform the Government of that fact. The organizations will then be declared, and every member of them will be branded as a traitor to his country.
– On what ground will they be declared?
– On the’ ground that they are controlled by Communists.
– Under the bill as it now stands, that would not suffice.
– Probably Senator Gorton knows more than does the Attorney-General. Senator Gorton, perhaps unwittingly, supported the Opposition in relation to this matter.
He said that there would he nothing wrong with the Commonwealth making charges, laying evidence in support of them before a court, and allowing an accused man to defend himself. Under the bill in its present form, the defendant will have to make the first move, because he will have to make at least part of his defence before the onus of proof shifts to the Crown, but apparently Senator Gorton considers that procedure to be just.
The Attorney-General evidently believes that either he or his peace officers are mind readers. He has said that an organization should be declared to be unlawful if, in the opinion of the Government, it may be guilty of treasonable acts. Who is to say that, at some time in the future, an organization may commit a treasonable act? It may not be the intention of the members of an organization to commit treasonable acts, but if a peace officer considers that they may do so at some time in the future, they can be declared traitors to their country.
– Not if a peace officer says so. It must be the GovernorGeneral.
– The GovernorGeneral will act upon information supplied by peace officers. The investigations will not be made by the AttorneyGeneral, the members of Cabinet, or the members of the committee that it is proposed to establish. If the peace _ officers, having made investigations, said that, in their opinion, an organization might, at some time in the future, commit treasonable acts, the Attorney-General and other members of the Government would be prepared to brand the members of that organization as traitors, without having laid charges against them or given them an opportunity to refute the allegation.
The Attorney-General has dealt almost exclusively with organizations consisting wholly of Communists. We are concerned, not with organizations of that kind, but with organizations in which the majority of the members are not Communists. The majority of the members may not be aware that other members are Communists, but they still may be branded as traitors to their country.
– The organization, not the individuals.
– An organization is composed of individuals. If it is branded, a stigma must attach to its members. ‘Surely the Attorney-General does not suggest that, if an organization were to be declared, the members would not carry the burden of the stigma.
– That would be bad luck for Senator Morrow, would it not?
– If the AttorneyGeneral ‘belonged to an organization that was declared, that would be bacl luck for him. Doubtless he belongs to some organizations that could be declared under this bill if peace officers were to investigate their activities. I do not suggest that the undesirable activities of the organization would be known to the Attorney-General. It could happen to anybody.
Senator Maher said that it was the intention of the Government to remove from office only persons who were Communists. It cannot be said that the bill, in its present - form, is applicable only to Communists. It has been estimated that there are 14,000 Communists in Australia. The Government must have a list of the names of those persons. If it acts properly, it will brand each one of them. If they have been guilty of the acts of which they are accused in the preamble to the bill, does the Government propose to allow them to remain at large? The Attorney-General said that, despite the terms of the preamble, the bill does not deal with criminal offences. Is it argued by the Government that sabotage, treason, and subversive activities are not criminal offences?
– The bill is designed to forestall those activities, not to punish persons after they have engaged in them.
– The preamble refers to what has happened, and Senator Gorton says that the recitals in the preamble are correct. Is Senator Gorton a mind reader?- Can he say what some organization will do -in the future ? All members of declared organizations will be branded as traitors. It is unbecoming of Senator Gorton to cast slurs upon honorable senators on this side of the chamber. We have always fought for the principles of British justice, as honorable senators opposite claim that they have done. We have shed just as much blood in the fight as they have done. It illbecomes an honorable senator to cast slurs upon us in relation to matters of that kind.
– I said that the Labour party had agreed that the Communist party should be dissolved. That was not a slur.
– We are fighting to ensure that innocent people who belong to an organization that may be declared unjustly or as the result of an error shall not be branded as traitors to their country. If the Government has any evidence against an organization, it should formulate charges, produce its evidence, and let the organization defend itself. It should not ask that officers of the organization to subject themselves to crossexamination in a court before the onus is cast upon the Crown to prove the allegations that it has made.
– Did Senator Aylett hear what Senator McKenna said about that matter?
– I have noticed that Senator Mattner has been silent upon this matter, probably because he does not understand the bill. If he does understand it, and, despite that, supports it in its present form, he does not believe in British justice. In this country a man charged with a brutal and premeditated murder does not have to prove his innocence. First the onus of proof lies upon the Crown. In a murder case, the accused is not required to go into the witness box and give some evidence before the onus of proof shifts to the Crown.
I, for one, will not accept the responsibility of agreeing to a provision under which innocent persons can be branded as traitors to their country, without charges being made against them and evidence produced in support of the charges. The Government is acting unreasonably in asking us to support provisions such as these. We shall not do so.
– Th/B committee has decided that the Communist party should he banned. The question that is now .being considered is whether other organizations having objectives similar to those of the Communist party should also be banned. The Communists are opposed to everything for which we stand.
I have been very interested in the argument that has ‘ developed upon this clause. I said in the course of my second-reading speech that there was nothing in this bill incompatible with British justice. Having made that statement, I .was ridiculed by honorable senators opposite, especially by Senator Aylett. When I said that if an accused man went into the witness box and said, “ I am not a Communist, nor do I belong to this organization”, the onus of proof would shift to the Crown, I was ridiculed by Senator Hendrickson and Senator Aylett; but to-night Senator McKenna said that what I said was correct. Senator Aylett had the audacity to say that I did not know anything about the bill. If he were as low in stature as he is in principle, he could just about sit on a tram ticket and dangle his legs.
– I ask that the honorable senator be requested to withdraw that remark.
– I ask Senator Mattner to withdraw the remark.
– May I ask you one question, Mr. Chairman?
– Order ! I ask Senator Mattner to withdraw his remark about Senator Aylett.
– I withdraw those remarks. However, I still have the thought. As Senator McKenna has well said, the moment that a person steps into the box and says, “ I am not guilty “, the Crown has to prove its case. Is there anything wrong with that? Is not that British justice?
– It would be all right if that were all that was involved.
– Senator McKenna has admitted that that is so, and the bill distinctly provides accordingly. For two days we have been arguing this portion. In effect, the Opposition has been shadow-sparring.
We are attempting to deal with people who seek to destroy this country. Honorable senators opposite have said, in effect, “ Let them commit their acts of disloyalty first “. I point out that those people would destroy the British courts of justice. There would be nothing left for the decent law-abiding citizen, because the courts would have gone. Yet the Opposition says these people are being denied justice .when given the opportunity to go into the witness-box and say, “ I am not a Communist “. The onus of proof would then be on the Crown. What else is that than British justice? I support the amendment that has been moved by the Attorney-General (Senator Spicer).
– The two objections to the bill are its all-embracing character and the reversal of British law, particularly in the original draft. In the light of discussion that has taken place both within and without the Parliament, the Government has seen fit to modify some of its provisions. That in itself proves that what the Leader of the Government in this chamber (Senator O’sullivan) said was incorrect. He stated that the only two organizations opposed to the measure were the Communist party and the Labour party. I point out, however, that since the provisions of the measure have been made known throughout this country, large sections of both the universities of Sydney and Melbourne have declared emphatically and without reservation or qualification that they oppose the bill in its entirety. Obviously, therefore, the Minister’s statement was a gross exaggeration. In the current month’s issue -of Legionnaire, which is the official organ of the Queensland Branch of the Australian Legion of Ex-service Men and Women, this resolution appears-
journal is Communist-controlled.
– Evidently anybody who opposes the Minister’s views is a Communist. , That has been evident throughout the debate on this measure. What justice could be expected from people who are willing to condemn on mere assumption? The resolution of the State Council of the legion reads -
We declare that the Legion will fight, with every resource it has, to preserve our members’ right to oppose any Government policy which is detrimental to the welfare and interests of ex-service men and women. We declare our utmost opposition to the Federal Government’s legislation ostensibly to dissolve the Communist party which can be used to suppress all opposition groups and all criticism of Government policy.
The following letter was forwarded by the State secretary of the legion to the Prime Minister: -
Having examined the legislation, my Association considers that the terms of the legislation are so sweeping as to make it possible for any Government to utilize the various provisions to suppress all opposition groups and all criticism of Government policy. As an association whose members fought to defeat the tyrannical regimes of Hitler, Mussolini and Tojo, we are gravely concerned at legislation which could be utilized to establish similar methods in Australia. We are aware that the Nazi regime in Germany suppressed opposition by attacking Communists, then the unions, the German Labour Party and even the churches. For some time this Association has pursued an active policy of promoting the ideals of world peace and international understanding. We stand for the banning of atomic weapons and the progressive reduction of armaments by all nations under international agreement, as essential and positive steps to the preservation of world peace. We are apposed to conscription in Australia in peace time, and to the military embroilment of Australia in Malaya.
We recognize that these views conflict with the policy of the Government and that under the provisions of the Bill, activities in support of this Association’s policy could be branded by the Government as prejudicial to the defence of Australia and the organizations and members penalized accordingly. Wc consider such a state of affairs a monstrous violation of democratic liberties, and one which warrants our utmost opposition to this measure.
As you are aware, this Association recently made representations to have a 50 per cent, loading added to war gratuity to compensate for the tremendous decrease in the real value of gratuity. We contend that a reduction of current unnecessary military expenditure should be effected to permit ex-servicemen of the last war to get justice in this regard. Even this demand could be claimed by the Government to be prejudicial to the defence of Australia and the organization penalized. This Association considers the legislation is repugnant to every democratic Australian tradition, in that it is directed to suppressing legitimate criticism of and opposition- to thipolicies of the Government of the day: and we -urge its complete and immediate withdrawal.
– I rise to order.I suggest that the honorable senator is not discussing the clause, but engaging in a second-reading speech, not even of his own composition.
– Whilst the honorable senator would not be in order making a second-reading speech, if he could connect his remarks with the clause under discussion he would be in order.
– I am endeavouring to connect my remarks with the clause. I repeat that the Minister stated that the onlytwo organizations opposed to the bill were the Communist party and the Australian Labour party. I am endeavouring to show that there is consider able opposition to the measure by people outside of the Parliament. Senator McKenna has already clearly pointed out that originally the onus of proof was on the accused. The measure was then modified. Surely the twenty professors and lecturers of the University of Sydney who publicly attacked the bill as a threat to democratic liberties knew what they were talking about.
– Twenty per cent. of the total.
SenatorCAMERON.- The Minister’s interjection does not reflect highly on his training.
– Do not be rude.
– I am merely trying to be truthful. Senator Gorton claimed that Communist bodies are constantly changing their names. I do not know of any organization that has changed its name so frequently as has the anti-Labour political party now known as the Liberal party.
– I rise to order. The honorable senator’s remarks have nothing to do with the clause before the committee.
– The honorable senator is in order so long as he connects his remarks with the clause.
– I submitthat the Opposition is entitledto reply to charges that have been made by, honorable senators supporting the Government. The Attorney-Generalhimself has been guilty of considerable irrelevancy.
– Order! In conformity with the sessional order relating to the adjournment, of the Senate, I formally put the question -
That the Chairman do now leave the chair and report to the Senate.
Question resolved in the affirmative.
The Chairman having reported accordingly,
The following papers were presented: -
Commonwealth Public Service ActAppointments - Department-
Repatriation - M. Wilson.
Works and Housing - L. Benson, L. S. Coventry,K. J. A. McIlvride.
Defence (Transitional Provisions) Act -
National Security (Rationing) Regulations - Orders- Nos. 168, 169.
Regulations - Statutory Rules 1950, No. 24.
Judiciary Act - Rule of Court, dated 28th April, 1950.
Lands Acquisition Act - Land acquired for Defence purposes - Wacol, Queensland.
Northern Territory (Administration) Act - Regulations - 1950, No.5 (Lottery and Gaming Ordinance).
Senate adjourned at 10.30 p.m.
Cite as: Australia, Senate, Debates, 13 June 1950, viewed 22 October 2017, <http://historichansard.net/senate/1950/19500613_senate_19_208/>.