23rd Parliament · 2nd Session
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid) took the chair at 1 1 a.m., and read prayers.
– In the absence of the Minister for National Development will the Deputy Leader of the Government comment on the statement attributed to the Premier of South Australia, Sir Thomas Playford, in opening the conference of State housing commissions, that Australia’s housing problem could become critical by 1966, and that the steadily increasing marriage rate could cause the crisis? Has the Commonwealth plans for a programme leading to a sharp increase in housing, which the South Australian Premier declared was necessary to assure Australia’s future development?
– Senator McManus may not be aware that the Commonwealth Minister in charge of housing, Senator Spooner, is to-day attending the conference to which the honorable senator referred and which was opened yesterday by Sir Thomas Playford. I have no doubt that at that conference the Minister will make any comments that appear appropriate to him on the Commonwealth’s part in the Australian housing programme and I would not think it proper to anticipate anything he might say.
– Can the Minister representing the Minister for Labour and National Service give us any information about the outcome of the compulsory conference before Mr. Justice Ashburner between the shipowners and the Waterside Workers Federation with regard to Sunday work in the port of Melbourne? Can the Minister also give the Senate any indication of the degree of congestion of overseas shipping in that port in consequence of the refusal to work on Sundays? Will the Minister take all steps to relieve from that congestion as early as possible the vessels destined for the Tasmanian apple trade?
– I understand from the Minister for Labour and National Service that the conference called by Mr. Justice Ashburner, who is a member of the commission appointed to settle disputes between employers and employees, has been progressing and that both sides to the dispute have given some indication of wishing to overcome the dead-lock which has resulted in the holding up of so many ships. It is hoped, with some reason, that we shall soon be able to get back to normal so far as Sunday work is concerned, though it is too early for me to say for sure whether that will be so with regard to all ships. I can assure the honorable senator that the Department of Labour and National Service is seised, as is the Government, of the need for Tasmania to be properly served by ships as soon as that can possibly be arranged.
– Has the attention of the Minister for Civil Aviation been directed to a statement by Mr. M. H. King, chairman of the Queensland branch of the Australian Federation of Air Pilots, to the effect that recent utterances by the Minister for Civil Aviation are contradictory and incorrect, that the Minister’s most recent statement that clear air turbulence is not present in Australia is a plain misstatement of fact, and that, if the Minister continues to make inaccurate statements he will destroy faith in his department and in the industry? Will the Minister kindly clear the air on this matter?
– I have not seen the statement attributed to Mr. King. However, I understand that I am to meet the Australian Federation of Air Pilots on Monday next and I shall be pleased to adopt the suggestion made by the honorable senator and clear the air in this matter at that conference. I do not know how my statement was reported to Mr. King or how it was presented to him, but what I said was that the type and intensity of clear air turbulence that it was thought was encountered by an aircraft in a recent accident in the United States of America was not present in Australia.
– My question is directed to the Minister representing the Minister for Shipping and Transport. Is it a fact that the Australian Eastern Shipping Conference Line, which consists of British.
Swedish and Japanese ship-owners, possesses a monopoly or virtual monopoly of the freight trade between Australia and Japan? ls it a fact that the freight charged for class-] 0 items - chemicals, insulating materials, cameras, motor accessories, stationery, instruments and other goods - by Australian Eastern Shipping Conference Line ships from Europe is only £18 15s. per metric ton, while the freight charged between Australia and Japan, about half the length of haul, is about £22 10s. per cubic ton? Having converted metric tons to cubic tons and having made allowance for the shorter distance, I ask the Minister whether the conclusion to be reached is that this shipping monopoly is charging Australian importers roughly twice as much to carry goods from Japan as it costs to bring them from Europe. What is the reason for this discrimination in view of the depression in world shipping and the heavy back-loading available between Australia and Japan? Has the Australian Government any constitutional authority to intervene in this matter? If it has, will it take appropriate action to protect the Australian public which, in the end, pays this freight?
– The question is a long one and, as it relates to overseas shipping as distinct from coastal shipping, it falls within the administration of the Minister for Trade. I ask the honorable senator to leave the matter with me and I shall have an answer sent to him during the recess.
– My question is directed to the Minister representing the Treasurer. As the impostion of 121 per cent, sales tax on biscuits for human consumption falls heavily on the family man, can the Minister explain to the Senate why dog biscuits, which are bought cheaply by wealthy ladies, carry no sales tax at all? As self-raising flour is a most essential commodity in every home throughout Australia, does the Minister consider that the burden of I2i per cent, sales tax on this item is imposed fairly and equitably upon the community, particularly upon the family man with six or eight children compared with the man who has no children?
– The matter of sales tax generally, and the question of variations in rates of sales tax, are reviewed every year at Budget time, as the honorable senator well knows. All I can say is that I will bring this question to the notice of the Treasurer. If there is any accuracy in the information given by the honorable senator, or any merit in his suggestions, I have no doubt that the question will receive proper consideration.
– My question is directed to the Deputy Leader of the Government in the Senate. Has the Minister’s attention been directed to a report on page two of to-day’s Melbourne “ Age “, under the heading “ Federal Parliament “ which states that the Telephonic Communications (Interception) Bill was defeated in the Senate? If so, has the Minister any comment to make on this report?
– I regret very much that I have not had an opportunity this morning to look at the newspapers. I could not, therefore, comment on the report, except to say that it is obviously inaccurate.
– My question is directed to the Deputy Leader of the Senate in the absence of the Minister representing the Postmaster-General. Will the PostmasterGenera^ when the Budget is being prepared, consider granting exemption to blind pensioners from payment of rent for their telephones? I remind the Minister that these unfortunate people spend their days in total darkness, and that any concession granted to them along these lines would be greatly appreciated.
– All I can do is to assure the honorable senator that I will bring his question to the notice of the Postmaster-General.
– I address a question to the Minister for Customs and Excise. I preface my question by referring to a comment in to-day’s Melbourne “ Sun “ to the effect that thousands of imported plastic toys containing soil or prohibited seeds will be destroyed or returned to exporting countries in Asia. The report explained that the toys impounded included inflatable types containing soil ballast to keep them upright in water, and that seeds had been placed in other toys to make them rattle. I ask the Minister: ls there liaison between the Department of Customs and Excise and the Department of Health on matters of such vast importance 10 Australia as this? It will be appreciated that the import of seeds into Australia in this way could have devastating effects. I further ask the Minister: Does the Department of Customs and Excise have any way of alerting its officers at the relevant ports overseas, particularly in Asia, with a view to preventing the shipping of these obnoxious toys to Australia?
– The Department of Customs and Excise has a full liaison with the Department of Health on matters such as that raised by the honorable senator. In most of the main ports of Australia quarantine officers from the Department of Health are available on the spot. In ports at which no quarantine officer from the Department of Health is available - and this applies to most of the out-ports of Australia - officers of the Department of Customs and Excise act as agents for the Department of Health and carry out the quarantine regulations. I agree entirely with the honorable senator that it is most important to ensure that articles such as he has described do not come into Australia, and I think that, by and large, the quarantine work done by the Department of Health is pretty effective. There is a very complete liaison between the two departments; we work very well together.
As to the honorable senator’s second question, I do not think that our customs officers overseas would have any jurisdiction to work in this way in ports overseas. Although we have customs officers in Japan and other Asian countries, 1 do not think they would have the slightest jurisdiction to prohibit the export of such articles. 1 think they could, however, direct the attention of the authorities in those ports to the fact that such goods would be destroyed on reaching Australia. In this way we might be able to save exporters the freight charges. If they could be warned in time, they could refrain from shipping these objectionable goods. I have not examined that angle, and I am thankful to the hon orable senator for bringing it to my notice. 1 shall now proceed to see what the department can do in that direction, because I think that the honorable senator’s suggestion is a valuable one.
– My question is addressed to the Minister representing the Treasurer. In view of the fact that cakes sold by shops are subject to sales tax at the rate of 12i per cent., which puts cakes beyond the means of families in which the wage-earner receives only the basic wage, will the Minister ask his colleague to consider removing sales tax from cake containers and the ingredients that are used in the making of cakes, including essences, so that housewives and their children may be given the opportunity to enjoy that small luxury - a cake?
– As in the case of the matters previously mentioned by the honorable senator, the subject to which he refers will be considered at Budget time.
– I ask the Minister for the Navy whether his attention has been directed to the fact that last week-end, in Tasmania, more than 100 personnel of the crew of the visiting United States destroyer “Walker” volunteered to give two days of what would have been their liberty, or leave, to help to repair flood damage in the Derwent Valley area. May I say that they performed a wonderful community service which was of great value to the hop-growers and land owners of the area. Does the Minister think that it would be appropriate for him, as Minister for the Navy, to pass on, through the correct channels, the thanks of the Government to the captain and personnel of the destroyer?
– It is perfectly true, as Senator Marriott has said, that the United States seamen to whom he referred gave their time and effort to assist those who had suffered from the floods in Tasmania. In other parts of Australia United States servicemen from the Coral Sea fleet also helped us in other ways, including the donation of blood to blood banks. Generally, I think they acted in the helpful spirit which navies tend to display in relation to civil disaster and civil populations. 1 have already been in communication with Admiral Hopwood, the commander of the Pacific fleet, who was here in Australia. He has thanked Australia for the way that we looked after his servicemen, and I have thanked him for the assistance his servicemen have given to us. I have not yet written directly to the commander of the destroyer “ Walker “, but on the suggestion of the honorable senator, I think it appropriate that I should do so.
asked the Minister representing the Treasurer, upon notice -
Has an approach been made to the Government by the Australian Wheat Growers Federation for permission to raise moneys to provide buffer storage in the ensuing year for what could be quite a substantial carryover of wheat, particularly in Western Australia and New South Wales?
– The following answer is now furnished: -
The Australian Wheat Board, in consultation with the State bulk handling authorities and the Australian Wheat Growers Federation, recently submitted proposals to the Government relating to the erection of additional wheat storage facilities. These proposals were fully considered by the Government. Subsequently the Minister for Primary Industry informed the Australian Wheat Board that as, traditionally, wheat storage has been accepted as being a matter for the States, and as the policy of Commonwealth governments over a long period has been to decline to accept responsibility for the storage of wheat, the Government could not accept the proposals.
asked the Minister representing the Treasurer, upon notice -
– The Treasurer has provided the following answers: -
asked the Minister representing the Minister for the Interior, upon notice -
– The Minister for the Interior has furnished the following replies: -
Senator SANDFORD ask the Minister for
Repatriation, upon notice -
How many appeals under the Repatriation Act were lodged during the year 1959?
What was the average time lapse between the lodging of the appeals and the decisions?
How many of these appeals were allowed and how many rejected?
– The Acting Minister for Repatriation has replied as follows: -
asked the Minister representing the Minister for Health, upon notice -
– The Minister for Health has furnished the following reply: -
asked the Minister representing the Treasurer, upon notice -
– The Treasurer has provided the following answer: -
Tasmania’s share of the grants payable under the Commonwealth Aid Roads Act 1959 is not affected by population changes, being fixed at 5 per cent, of the total amounts payable under that legislation. The amounts payable to Tasmania under the States Grants Act 1959 in each year after 1959-60 will be affected by changes in Tasmania’s population. As, however, Tasmania also receives special grants, which are arrived at by the Commonwealth Grants Commission on the basis of Tasmania’s financial needs, Tasmania’s share of the total revenue grants made available by the Commonwealth is not directly affected by changes in Tasmania’s population.
– On 6th April, Senator Pearson asked the following question -
In view of the Government’s announcement that it intends to close the Mallala aerodrome in South Australia, can he say what it intends to do with the buildings and permanent constructions that will be left behind? Will tenders be invited for the purchase of any of these surplus constructions, or how will they be disposed of?
The Minister for Air has supplied the following information: -
The assets of the Royal Australian Air Force at Mallala comprise 24 buildings and some 870 acres of land. A further 144 buildings (approximately) and ancillary engineering services on the site are the property of the Department of Supply.
The planned date to disband the remaining Royal Australian Air Force elements at Mallala is 31st July, 1960. All Air Force assets on the site, with the exception of two Bellman hangars required for removal to another Royal Australian Air Force establishment, will be handed over to the Department of the Interior for disposal in accordance with normal Government practice.
The manner of disposal is one for determination by the Minister for the Interior.
– On 5th May, Senator Laught addressed a question to the Minister representing the Treasurer as follows: -
Would he care to comment on the statement made a week or so ago by the Swedish Minister to Australia, Mr. Nils Eric Ekblad, that a treaty on double taxation between Australia and Sweden would be a sure way of attracting Swedish capital to Australia? Mr. Ekblad claimed that Canada had benefited from an improved flow of capital since signing such a treaty with Sweden some years ago. Will the Minister discuss with his Cabinet colleague the possibility of examining the statement made by this distinguished representative of Sweden?
My colleague, the Treasurer, has informed me that discussions took place in 1955 between Australian and Swedish representatives regarding the possibility of an agreement for the avoidance of double taxation on income. Recently an approach was made by Sweden for a re-opening of discussions on this subject. The matter is currently under consideration.
– On 12th May, Senator Aylett asked whether the Government would consider reducing the sales tax. on covers used by primary producers to protect their primary products. Senator Aylett asserted that these goods now bear ?< sales tax of 20 per cent.
The Treasurer has advised as follows: -
Item 2 (3) in the First Schedule to the Sales Tax (Exemptions and Classifications) Act authorises exemption of: “ Covers for haystacks and other primary produce, for use in agricultural industry “.
– by leave- The Senate Select Committee on Road Safety has now visited all State capitals for the purpose of taking evidence: indeed, it has visited some of the capitals on more than one occasion. It has received evidence from 120 witnesses. It is not expected that the committee will hear more direct evidence unless, during its deliberations, it decides to hear fresh evidence on some specific matter.
The committee is at present engaged in the task of formulating its report to the Senate. Whilst it is likely that the committee will complete that task by the date agreed to by the Senate last year, namely, 30th June, 1960, it is practically certain that the Senate will not in fact be sitting at that time. An extension of time is therefore necessary for the presentation of the report. This will enable the report to be presented during the Budget session. Accordingly, I move -
That the date for presenting the report of the Senate Select Committee on Road Safety be extended until 30th September, 1960.
Question resolved in the affirmative.
– I present the report of the Parliamentary Standing Committee on Public Works on the following subject: -
Construction of new Customs House at Melbourne, Victoria. and move -
That the report be printed.
This report is presented as the result of a reference made to the committee on a proposal for the construction of a Customs House on the corner of Flinders and William streets, Melbourne, directly opposite the site of the existing Customs House. In 1957 the committee presented a report to the Parliament on proposed additions to the existing Customs House. The committee, after very long deliberations and supported by overwhelming evidence, suggested to the Parliament that the site of the existing Customs House was ideal for customs activities. The whole perspective of the plans for additions to the existing Customs House, using the available area behind the existing building, was not at all pleasing. The committee considered that the proposal was more or less makeshift. It reported that the only satisfactory way to tackle the problem and to provide sufficient accommodation for an expanding office of the Department of Customs and Excise in Melbourne was to demolish the existing Customs House, and it recommended that the department present new plans to the committee. However, in the meantime, the Government, acting on the committee’s advice about the suitability of this locality for the purpose, purchased the Yarra Family Hotel on the corner opposite to the existing Customs House. The report now presented relates to the projected construction of a new Customs House on this site.
During the first inquiry, the committee received evidence from numerous persons. It was resolved that the committee would not hear that evidence de novo but would accept it as relating to the new proposal. The committee has gone thoroughly into the matter. It believes that the need of the Department of Customs and Excise for adequate accommodation in Melbourne is urgent. The site is in a very good location for customs activities. The department expects that over the next 25 years the staff will increase to such an extent that full utilization may be made of the site, which justifies planning so far into the future.
The committee had evidence from the Public Service Board relating to accommodation that is at present being leased in Melbourne. It was ascertained that 933 officers were awaiting better accommodation and that some of these could be accommodated in the Customs House pending their transfer to Canberra. It was also found that an amount of £385,000 was being paid annually in rental for leased accommodation in Melbourne, and that further accommodation was needed. The proposed building will provide considerable additional accommodation for Commonwealth officers in Melbourne.
The report is comprehensive. I should like to pay a tribute to Mr. Marshall, the newly appointed secretary of the Public Works Committee, who has gone to great pains and done a very good job in assisting the committee in the preparation of the report.
111.421. - I should like to pay a tribute to the Public Works Committee for the expeditious manner in which it has handled this investigation.
Question resolved in the affirmative.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
– I move -
That the bill be now read a second time. This bill provides for the discharge at 30th June, 1960, of national service trainees held on strength in the citizen forces and for the discharge at an earlier date than 30th June, 1960, of those who volunteer and are accepted for service in the citizen forces.
The National Service Act 1951-1957 requires a person who is called up to remain a member of the citizen forces, after he has completed his national service training, for five years from the date of his initial call-up. In the case of the Army, a national serviceman, after completing his training, and within the five-year period, may be discharged in order to enlist in the Citizen Naval Forces or the Citizen Air Force, but he cannot voluntarily enlist in the Citizen Military Forces as he is already a member of those forces by virtue of the National Service Act. The proposed legislation will enable a national serviceman to enlist as a Volunteer in the C.M.F. by freeing him from his residual obligations under the National Service Act at 30th June, 1960, or earlier if he volunteers and is accepted before that date. There are at present some 4,000 national servicemen in the Army who have volunteered Cor further service and it is desired to recruit them into the C.M.F. as well as to encourage others to volunteer for the C.M.F. The legislation will similarly enable Navy and Air Force national servicemen to be relieved of their residual obligations to enable them to volunteer for service in any part of the citizen forces.
Another consideration is the administrative work required of the services for the discharge of national servicemen with residual obligations. The numbers who have not yet completed the period of five years from the date of initial call up and held on strength are Navy 2,500, Army 72,000 and Air Force 7,300; a total of 81,800 for the three services. Discharge action for these personnel would in the normal course be required at intervals up to August, 1964. The administrative burden is felt particularly in the Army which has the largest numbers and whose manpower resources will be fully taxed in giving effect to the current Army reorganization. To avoid the uneconomical use of service manpower, it is desired to complete administrative action for the discharge of all national servicemen by 30th June, 1960, while present staffs are still available rather than use manpower for discharge action lasting for a period of more than four years. The bill will thus serve the dual purpose of facilitating the recruitment of national servicemen into the volunteer Citizen Forces and at the same time it will avoid utilizing staffs for national service discharge action over a long period. I commend the bill for the favourable consideration of honorable senators.
Debate (on motion by Senator O’Flaherty) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Henty) read a first time.
– I move -
That the bill be now read a second time.
The purpose of this bill is to prolong the sulphuric acid bounty for a further period of six months to 31st December, 1960. Under the Sulphuric Acid Bounty Act bounty is payable on sulphuric acid produced in Australia from prescribed indigenous materials and sold for delivery in Australia or used in the production of any commodity. The materials prescribed are pyrites and lead sinter gas. The bounty was originally due to end on 30th June, 1959, but was extended for another year to allow the Tariff Board to hold an inquiry and to report on the sulphuric acid industry.
The hoard was asked to recommend appropriate rates and conditions of bounty having regard to the Government’s obligation to enterprises which had co-operated in the now abandoned policy of encouraging the use of indigenous materials in the manufacture of sulphuric acid. The board has completed public inquiries on the matter but has not yet made its report. The Government therefore considers it reasonable to extend the benefits of the bounty until such time as it knows and has been able to act on the recommendations of the Tariff Board. Hence the proposal in this bill that the bounty be extended to 31st December, 1960.
The act now provides for the payment of bounty during a period of six years ending 30th June, 1960. Bounty payments have been made in respect of acid produced: -
Year ended 30th June -
The proposed amendment would continue the present bounty for a further period of six months to allow time for the Tariff Board’s report to be considered and implemented. I commend the bill to honorable senators.
Debate (on motion by Senator Sheehan) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Henry) read a first time.
– I move -
That the bill be now read a second time.
The purpose of this bill is to extend the operation of the copper bounty for a further period of six months to 31st December, 1960. The Copper Bounty Act at present provides for the payment of bounty on refined copper of domestic origin sold for use in Australia in the period 19th May, 1958 to 30th June, 1960. The general question of the assistance which should be given to the production in Australia of unwrought copper has been referred to the-. Tariff Board which has not yet made its report, although the inquiries have been completed. The Government therefore considers it reasonable to extend the current bounty for a further six months to allow time for it to examine and act upon the board’s report after this is received. Hence the proposal in the bill to extend the bounty to 31st December, 1960.
Bounty of £897,760 has been paid on 27,403 tons of refined copper sold in the first year of bounty ended 30th June, 1959. The proposed amendment would continue the present measure of assistance to the industry for a further six months to allow time for the Tariff Board’s report to be examined and implemented. I commend the bill to honorable senators.
Debate (on motion by Senator Sheehan) adjourned.
Debate resumed from 18th May (vide page 1071), on motion by Senator Gorton -
That the bill be now read a second time.
– This debate has ranged over a wide field. My firm opinion is that legislation of this sort is obnoxious and hateful to Australians and contrary to the Australian way of life. I see this type of legislation as a part of the surrender of democracy to the police state. For many years the Australian people have claimed with pride that we were developing here in the southern hemisphere a new and vigorous race, sportsloving, with a healthy outlook, sound mentality and a wise philosophy. However, the intrusion of legislation such as this is obvious evidence that we are on the downward path towards something different from the traditional way of Australian life. I advance this point of view because my personal experiences within a police state have led me to believe that man. if given certain powers without full responsibility to the parliament and, through it, to the people, is inclined to get out of touch with the hopes, needs, and ambitions of the people. Power gives him a different status. 1 have heard Senator McCallum in this chamber quoting a phrase translated from the Latin to the effect that the safety of the people is the supreme law. I may be permitted to read to the Senate an exerpt from Lord Russell’s book, “ The Scourge of the Swastika “, in which he describes the build-up of the secret service in Germany. It is surprising to notice the similarity, in substance, between the speeches of Government supporters in this Senate justifying this proposed departure from the traditional Australian way of life, and the speeches made by the Nazis in justification of their policy. For instance, Himmler is reported by Lord Russell to have said -
We shall unremittingly fulfil our task to guarantee the security of Germany from within, just as the Wehrmacht guarantees the safety of the honour, the greatness and the peace of the Reich from without. We shall take care that never again in Germany, the heart of Europe, will the Jewish-Bolshevistic revolution of subhumans be kindled from the interior or through emissaries from outside. Without pity we shall be a merciless sword of justice to all those forces of whose existence and activities we know, on the day the slightest attempt is made, be it to-day, after a decade, or a century hence.
Lord Russell added -
A merciless sword they undoubtedly were; but without honour and without justice. 1 have quoted that passage because T think it is time we took stock of the position and considered where this kind of legislation is leading to. It is a sad fact that many of the rights and freedoms that we. as Australians, have valued, are being subdued and even surrendered because of some abstract idea about the impossibility of co-existence and the inevitability of war. There is an old saying to the effect that war takes place when political discussion finishes. To all intents and purposes we are seeing the commencement of a war on human rights, because by this measure it is sought to legalize certain activities by a section of the community. Admittedly they are for a purpose which Government policy considers to be essential, but they are activities which have never before been legalized in this country. 1 have noticed for some time past that when this Government introduces controversial legislation it adopts a clever technique, which is being followed in this bill. It accentuates the positive side, emphasizing the advantages that the people will gain from the legislation. It thus provides a sugar coating for the pill represented by the negative side of the legislation. Slowly but surely we are accepting these intrusions into our freedom, because we are told by the Government that there is a terrible threat to our security, and what are introduced as emergency measures are becoming firmly established. We are being conditioned and, if necessary, brain-washed, to accept this kind of legislation, and any one who speaks against it is accused of disloyalty. This is a very bad trend.
I want to refer to a remark made last night by Senator McCallum, to the effect that the honorable member for Hindmarsh (Mr. Clyde Cameron) in another place had called for this kind of legislation. The honorable member for Hindmarsh has raised this matter in the Parliament over a period of years, with the same sense of grievance as that with which I oppose this measure. He held the view that this practice of telephone tapping, which was being indulged in, was abhorrent to the Australian people. During the last two or three years we have had the spectacle of Ministers of this Government, carefully and with premeditation, evading the telling of the truth about the matter. This in itself is foreign to our parliamentary practices and to our democratic procedures. In England, if the Chancellor of the Exchequer happens to drop a hint of something contained in the budget before that document is presented, he is honour bound to resign - and we have seen this happen. We know of cases in which Ministers who have misinformed the Parliament, and therefore the people, have lost their portfolios. Yet it appears that on a matter such as this Ministers can indulge in evasions and untruths with immunity. This is another danger that I want to point out.
– How about giving an example of that?
– All I could do would be to refer to the research carried out by Mr. Whitlam, the Deputy Leader of the Opposition in another place, when he was preparing his submission to the Parliament. Speaking on this measure on 12th
May, 1960, Mr. Whitlam said, referring to a former Postmaster-General -
For two pages of “ Hansard “ Mr. Anthony sought to by-pass the issue by classifying the raising of it as a Communist technique. I interjected to ask -
Is the allegation in respect of the tapping of telephone lines true or false?
Mr. Anthony replied ;
I give an assurance to every honorable member that whether he is engaged in espionage, or only making a starting-price bet, he is quite safe in respect of his telephone conversations.
– And that was true; no member of Parliament has had his telephone tapped.
– There have been telephone tappings, according to the information that was presented to the Parliament.
– Not of telephones of members of Parliament, and that was what the question was about.
– It is not a matter of tapping telephones of members, but tapping the telephone of any person in the community.
– The question was whether members of Parliament had had their lines tapped.
– If the telephones of members of Parliament could be tapped, then the telephone of any person in the community could be tapped. It is true that Senator Ormonde complained vehemently, when he was a private citizen, about his telephone line being tapped. On occasions,I have been obliged to say, at the commencement of a long distance call, “ We will probably have this call interrupted “. Sure enough, no sooner has the conversation commenced than out has slipped the connexion. On resuming the conversation I have said, “ I feel, in the circumstances, that this conversation of ours, innocuous as it is, is being listened to”.
– Particularly from Parliament House.
– It is a case of having a guilty conscience.
– I have not a guilty conscience. The practice is obnoxious. Let me give another example. When the Prime Minister (Mr. Menzies) was asked a ques tion concerning the matter of telephone tapping–
– The tapping of telephone conversations of members of Parliament?
– The Prime Minister was asked a question, on the occasion to whichI refer, by the honorable member for Kingston (Mr. Galvin). The Prime Minister has refused to answer questions on telephone tapping. He has avoided the subject and has equivocated.I believe that he has become so concerned about having to prevaricate that he has had this legislation introduced for the purpose of making the practice legal.
On 27th November, 1953, the honorable member for Kingston asked whether his telephone line had been tapped, and the Prime Minister replied -
In the absence of the Postmaster-General,I have no doubt that I can say at once that the honorable member’s telephone conversation was not tapped. Such a thing would be entirely unpardonable, and it does not occur.
– Is the honorable senator denying that the Prime Minister was telling the truth when he said that? After all, he was in a position to know. It had to go to him before it could be done.
– After all these years, there is an admission that 189 telephone conversations have been tapped. We could reach the stage in this country where we were divided amongst ourselves because of the opportunity that was given to people to abuse power which had been conferred on them for certain purposes.
– Would the honorable senator like the Prime Minister to make public the names of the persons whose telephone lines had been tapped?
– I would not like to see the names published. I think that the position is bad enough as it is. Once the Communist menace, as it is called, has been removed, where do we draw the line for the purpose of security?
– We are asking you.
– I say that, in the light of the words of Himmler to which I have referred, there will be a tendency to allow political freedom of expression only to those who favour the man who wields the power.
– Does the honorable senator say that that is happening?
– I say that toleration of legislation of this kind leads to the position that I have outlined.
– Why did Mr. Chifley start it?
-I think that Mr. Chifley was more or less forced to start it.
– Does the honorable senator say that it was all right for Mr. Chifley to do it?
– What happened then was that we were negotiating in regard to the development of the rocket programme at Woomera. At that time, the United States of America, the United Kingdom and Australia were in very close liaison in respect of the development of the rocket site, but the United States, which was exchanging information with Great Britain, was unhappy about the capacity of Australia to look after security matters. Australia enjoyed the advantage of having vast areas in the central part of the continent which could be used for the purposes of such a range. One of the world’s greatest land masses, occupied by a single group of people, was available for that purpose. The establishment of the range at Woomera fitted in generally with the programme of scientific rocket research of the United States of America and Great Britain. Because there were present in Australia the conditions that were necessary for the establishment of such a range, the project proceeded, and a concession was made, with very strong safeguards.
I return to the point that, previously, power in this respect was specifically in the hands of the judiciary.
– It was nothing of the sort.
– It was. Mr. Justice Reed was the Director-General of Security.
– Who established it?
– It was established at the request of the United States of America.
– In what year?
-I think in 1949, just before the end of the Chifley regime and during the time of post-war reconstruc tion and the establishment of the Woomera rocket range.I am reminded by Senator McKenna that it was established in March, 1949, within a few months of the end of the Eighteenth Parliament. I think that an attempt has been made to make party political capital from the matter by associating Mr. Chifley’s name with this departure from traditional practice in Australia.
– Telephone tapping?
– Telephone tapping, yes. It is a part of the security service.
– If it was right then, why is it not right now?
– I do not think it was right in the long run. I think it was the result of a compromise. At least, when it was introduced there was the safeguard that the final authority dwelt in the hands of the judiciary. We of the Australian LabourParty have proved that we are always prepared to accept decisions of the judiciary in its interpretation of the law. In fact, that is a part of the Australian way of life.
– Because Mr. Justice Dovey is a member of the committee of the Australian Jockey Club, is that body also included in the judiciary?
– That is an irrelevant question and does not deserve an answer. I shall continue to drive home the point that the establishment of the security service was the result of a compromise and was a concession to the United States of America and Great Britain.
Judging by the report of the British body which inquired into this matter, the people of Great Britain also have a feeling of abhorrence about introducing the kind of security work involved in telephone tapping. Ministers are becoming increasingly adept at evading issues, even to the extent of indulging in prevarication. The Government has now admitted that a certain number of telephones have been tapped in past years but it says that this legislation is designed to prevent telephone tapping. That is the sugar-coating on the pill. When the bill becomes law it will actually permit telephone tapping.
– And prevent abuses.
– This matter of preventing abuses is interesting. Abuse is a relative term. We all know what took place in South Africa recently under that country’s apartheid policy. The South African law permits the shooting and bashing of natives. Whether a law is abused depends on the outlook of the government in control at a particular time. With the advent of air travel the world is becoming a smaller place. Laws made in one country have a habit of spreading to adjoining areas.
The Government has said that this legislation has been introduced in order to afford protection to this country. In my opinion communism has been a great gift to this Government. A perusal of police or court records will reveal very little information about espionage or Communist activity in this country. However, I admit that the Communist ideology has been implanted in the minds of some people in Australia. If we take the results of federal elections as a guide we can gain a fair idea how many Communist sympathizers are in the country. However, they are not a completely reliable guide because some honorable senators sitting here to-day were elected on the preferences of Communist Party candidates.
– They are Liberal Party senators, too.
– That is so. I am making the point that you cannot ascertain for certain how many Communists are in Australia. Throughout the history of this country - and, indeed, of Britain - there have always been the rebel, the agitator, the educator and the reformer. The toleration of people of that type has been an essential part of our way of life. To-day we look upon the stand made by Peter Lalor and the miners at Eureka more or less as a symbol of the human spirit exerting itself and refusing to be dominated, hunted and spied on by the red-coat police. But that is just what this legislation is designed to permit. The history of the Labour move.ment shows a continual struggle against the existing order, and vast changes have come about as a result of that historical struggle.
– The struggle within the party is more important.
– Senator O’Byrne is struggling now.
– Struggle is of the very nature of our existence. We are a reform party - a progressive party. We have a progressive ideology. We are realists. We know that everything changes - that the mountains are changing by erosion, that the water courses are changing and that the human mind is continually expanding and developing.
– But not the minds of all people.
– No. That is why we have had to struggle.
The ACTING DEPUTY PRESIDENT (Senator Wood). - Order! I do not think that the honorable senator can really relate his present remarks to the bill.
– 1 can, and very closely, because it is only one step from the subversive Communist to the trade unionist and to the political educator, the agitator and the rebel - the man who will stand up amongst his fellow men and say that he wants justice. If he can be picked off he can be classified as a Communist. People who questioned the need for this bill in another place were told that they were adopting the Communist technique. This legislation represents a departure from the traditional Australian way of life. On that ground I oppose it.
The security service is a hush-hush organization. It does not submit reports to Parliament. Of its very nature it. is a secret organization. It is the only Government instrumentality in the country that is not open to the scrutiny of the people. Recently we have seen evidence in other parts of the world of organizations that are not finally responsible to the Parliament becoming states within states. To give these powers to our security service is to encourage it to become a law unto itself - a state within a state. We know that in the last two or three weeks, in this critical time of the world’s history, the intelligence people of certain countries have committed certain actions. We have had statements from military leaders, provocative statements from other people and statements by national spokesmen that could bring the world to the very edge of annihilation. This country is very closely involved in the defence philosophy of the Western world.
This legislation trots out the old claim that the means justify the end. Are VOl going to achieve your ends by methods that introduce secrecy and invade the sanctity of human freedom? By this measure, our mind and our conscience are being assailed. The bill gives encouragement to cloak and dagger adolescents. By giving to the security service authority and power to be exercised under warrant, the Government is perhaps adopting to a degree the type of propaganda that we see on television and hear on the radio and often read in serials in the press glamourizing secrecy, suspense, clever murders and that type of thing. Security activities can become a hobby as well as a profession. The point I make is that, in terms of the scriptures, he who con.temneth in small things shall fail by little and little. We are contemning small things in this legislation. We are, 1 feel, surrendering the things that the last war was fought to achieve. It was fought so that people could live in freedom, without having to look over their shoulders as people did in the German police state. It was fought to enable people to meet and converse freely with no thought that in their midst was a security organization. The security service in Australia will gain power as a result of this legislation. The interesting question arises as to whether we can survive this mad race to gain power. Two blocs of powers stand with daggers drawn - the “ ins “ and the “ outs “, the “ we*s “ and the “ they’s “, “ our side and their side.”
The alternative to a nuclear war is peace. I do not know whether we can continue to apply the technique of terror by threats or by a continuation of the cold war, or how we are going to solve our problem, but I do not think that the implementation of this bill will meet the situation. So many people do not realize that unless we can improve the situation by an international compromise, the world is doomed to annihilation by thermo-nuclear war. I feel that, by the introduction of legislation of this type, we are being offered a kind of defence and protection which could be more dangerous than the threat against which the measure is supposed to guard us.
– Do you want us to compromise with the Communists?
– Until yesterday, I had great hopes that there would be a compromise. Indeed, it was for that purpose that the Summit conference was arranged, and millions of humble people throughout the world had great hopes of a compromise being reached. We should not think that if we had all the thermo-nuclear bombs we could gain an advantage over the Soviet Union by using them to annihilate the Russians so that we could then send our forces to occupy the country. It would be foolish of us to think along those lines, so forget it.
The ACTING DEPUTY PRESIDENT. - Order! The honorable senator is getting away from the subject of telephone tapping.
– There is a lot of truth in the old saying that necessity knows no law. Perhaps, from the Government’s point of view, there is a need for this legislation, but I sound this note of warning to the Parliament: This measure could undermine democracy as we know it in this country by lulling the people of Australia into accepting something that is basically and traditionally foreign to the Australian way of life.
.- The bill before the Senate deserves very close scrutiny. I feel that the principles involved in it are so fundamental that every honorable senator should be very concerned with the proper formulation of the appropriate measure. I remind the Senate that this measure deals only with telephonic communications; and that this is only one type of communication that the Post Office has been constituted to transmit.
Telephone communications are operated by a state monopoly, and all sorts of rather cheap provisions found their way into the original Post and Telegraph Act designed to ensure that the communication of messages by telephone would be entirely a state monopoly. Faced with that situation. I say at once that I dissociate myself from any view that the principles of this bill are beyond argument; and I dissociate myself also from any view that disparages an anxiety to preserve individual liberties from proposed state intrusion. When we consider this eternal contest between them - a contest of increasing significance - it should be a matter of some pleasure to those on this side of the Chamber to see the members of a socialist and authoritarian party so obviously concerned in their consideration of this matter which intuitively is concerned with the civil liberties of the people. For my part, I hope that the Senate will consider this measure carefully and anxiously.
The telephone service is a state monopoly, under the control of the PostmasterGeneral’s Department. A Minister is responsible for administering the department, and the Telephone Branch operates under the active direction of the DirectorGeneral of Posts and Telegraphs. The Director-General manages the whole system. I believe that the utility of the telephone service is guaranteed only by positive acceptance by the people of the principle that communications made through this medium are completely confidential, and that the integrity of that principle is invaded only for overwhelmingly strong reasons. It is imperative, in my view, that, when invaded, proper safeguards should apply. In the absence of precedent, it is a task worthy of every senator to find and formulate proper safeguards.
The bill clearly prohibits the unauthorized interception of telephone messages. When the bill has been passed, that prohibition will find a place in the statute law of the country.
– For the first time.
– That may be so, but
I shall ask Senator Vincent and other honorable senators to consider that aspect with me in a moment. It is clear that the bill not only prohibits the unauthorized interception of telephone communications, but also seeks the approval of the Parliament to the Attorney-General having power to authorize the interception of such communications in some cases, and for the practice of wire tapping, as it is called in America, to be used. It is that part of the bill which, I think, causes grave concern. I believe that the Attorney-General deserves to be given great credit for having had the political courage to bring this matter into the open air of parliamentary debate, so that we, the representatives of the people, can engage in a purposeful discussion of the merits of the suggestion that the Attorney-General should have authority to sanction wire tapping.
I submit that this matter can best be approached by considering, first, the legal position in Australia and in England. Senator McKenna referred us to regulation 16a of the regulations issued under the Posts and Telegraph Act. In the limited survey that 1 have made of the regulations and the act, I have not been able to find any authority for the interception of telephone communications other than that regulation. Having regard to the information that has been vouchsafed by the Attorney-General about the practice of intercepting telephone communications having prevailed in Australia during the last twelve or fifteen years, the regulation is rather odd. It states that any person who, without the authority of the department, connects any telephone line or apparatus to an authorized telephone line shall be guilty of an offence. I notice with some interest that the practice is prohibited except in cases where the authority of the department has been given.
Some time ago, the members of the Regulations and Ordinances Committee were venturesome enough to ask the Senate to agree that a regulation which made interception with the authority of the department a lawful interception was the enthronement of bureaucracy to the ultimate degree. That was a flowery phrase, designed more for the purposes of publicity than for the communication of ideas. The regulation uses the words “ without the authority of the department “. When you prescribe a department of the Public Service as the entity empowered “”” to authorize an invasion of privacy, you get, I submit, the complete antithesis of individual civil liberty. I think I have said enough to make my point on that subject.
I should like to know whether the authority of the Postmaster-General’s Department was forthcoming in the 182 interceptions that have been mentioned by the Attorney-General, or whether the source of the authority of the interception was elsewhere than in that department. If the latter is the case, then the interceptions that have taken place have not been strictly authorized by law. The terms of the regulation to which I have referred appear to indicate that the draftsman had no idea of authorizing the interception of telephone conversations for security purposes, and the spirit of the regulation indicates that all that was in the mind of the author was to authorize interceptions for departmental purposes.
– When was the regulation proclaimed?
– It was inserted in 1935, and sub-section (3.) was amended to 1950.
The next question that arises is whether the Posts and Telegraph Act and the regulations made under it bind the Crown. There may be some who take the view that in the absence of an express declaration to the contrary in a statute, the Crown has the right, by virtue of its prerogative, to authorize interceptions.
– I think the Privy Councillors inferred that.
– Senator Vincent refers to the most interesting report that was submitted by three Privy Councillors - Lord Birkett, Lord Monckton and Mr. Walker. They referred to this matter in paragraph 22 of their report, and stated -
In connexion with this argument the principle must be borne in mind that, where the legislature has intervened and covered by statute the ground covered by the Prerogative, the statute thereafter rules.
That, I should have thought, removed any ground for saying that the prerogative still prevailed. I say that in the hushed tones with which we should express our respect for the statement in the second-reading speech that there was some source of authority in the prerogative.
Sitting suspended from 12.45 to 2.15 p.m.
– It is curious that the legal position in England is in the realm of doubt. If one reads the very interesting historical introduction that the Privy Councillors have set out, and then comes to the modern position as stated in paragraph 33 of their report, one sees that section 58 of the United Kingdom Post Office Act of 1953 expressed a proviso with regard to the opening of packets in the post. It reads - , . nothing in this section shall extend to the detaining or delaying of a postal packet . . . under the authority of this Act or in obedience to -an express warrant in writing under the hand of the Secretary of State.
So modern statutes seem to recognize the validity of the authority for that purpose of the Secretary of State. Of course in England this authority was taken and used for the three-fold purposes of what is called national security, and the detection of serious crimes and serious customs contraventions.
With that position before us, I think that the Attorney-General of this Commonwealth is entitled to great credit for bringing this matter before the Parliament for decision. But I submit the fact that he has done so, that there is no parent legislation in England, and that no law to authorize telephone tapping has been enacted by the Congress of the United States of America, increases the responsibility that we undertake. I therefore ask myself what is the nature of the proposition that is put to us that there should be parliamentary approval for telephone tapping. Paragraph 133 of the Privy Councillors report makes quite clear that they regarded this matter as one of gravity. They stated - . . Sir James Graham, the Home Secretary, said in a debate in the House of Commons in 1843 that the practice of opening letters was “ odious, invidious and obnoxious “. It is important to observe that this dislike of interceptions is not confined to those who feel that as a matter of principle the liberty of the individual outweighs all other considerations, or that the exercise of the power is not justified by the results obtained; it is also shared by those who think it right that the power to intercept communications should be used by the State, under proper safeguards, for well-defined purposes. We think it important to emphasize this aversion to the interception of communications.
I was interested to find in a book entitled “ Editorial Research Reports “, the authority of which I know not, and which was published in the United States in 1949, an article at page 185, in which the following interesting excerpts are given: -
Tapping wires is acknowledged to be a sneaky way of intruding into the private affairs of the citizen. There is an instinctive revulsion against this form of eavesdropping, with its connotations of the police state. Justice Holmes twenty years ago condemned wire tapping as “ dirty business “. In the hands of government, it may be a threat to democratic rights. Justice Brandeis, in his often-quoted dissenting opinion in the Olmstead case in 1928, said: “As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping “. And President Roosevelt said in 1941: “As an instrument for oppression of free citizens, I can think of none worse than indiscriminate wire tapping”.
With that before one, I suggest that we should not lightly accept the idea that telephone tapping should be authorized, on the plea that national security demands it. It is a question wherein it is proper to remind ourselves that national security is thegreat invocation of all dictators. Having said that, of course,I do not say that it is not to be accepted by a democratic parliament. I am influenced by the fact that the Privy Councillors, at paragraph 137 of their report, made thisthoughtful observation on interception in England which, as I have said, is for national security and the detection of crime and customs offences -
The freedom of the individual is quite valueless if he can be made the victim of the law breaker. Every civilized society must have power to protect itself from the wrongdoers. It must have powers to arrest, search and imprison those who break the laws.If these powers are properly and wisely exercised, it may be thought that they are in themselves aids to the maintenance of the true freedom of the individual.
I have found some thoughtful remarks in a little booklet of Lord Denning’s lectures for the Hamlyn Trust, under the caption “Freedom under the Law”. At page 5 personal freedom is referred to in the following terms: -
The freedom of the just man is worth little to him if he can be preyed upon by the murderer or thief. Every society must have the means to protect itself from marauders. It must have powers to arrest, to search, and to imprison those who break the laws. So long as those powers are properly exercised, they are themselves the safeguards of freedom. But powers may be abused, and, if those powers are abused, there is no tyranny like them.
At page11 of the same booklet is quoted a remark from Lord Atkins’ judgment in Liversidge’s case in 1942, when times were critical and Lord Atkins had to consider the Executive’s authority in relation to national security regulations. He said - “ In this country, amid the clash of arms, the law are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which we are now fighting, that the judges are no respectors of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charles I. I protest, even if I do it alone, . . .
Those are words of great inspiration -
The English experience is vouched1 for by the Privy Councillors at paragraph 141 of their report. With some realization of the tedium of the matter, 1 desire to quote it in full, in order to maintain the continuity of my ideas on this matter. They say -
In the first great field where the power has been and is exercised - that of national security - we feel no doubt at all in recommending that the powers of interception should continue to be used subject to the conditions and safeguards which we have set out at length in Part II. and in the summary of conclusions. The Security Service is part of the defence system of the country, and its supreme task is the defence of the Realm, and this necessarily involves protection from espionage, from sabotage, and indeed from every kind of action that threatens the security of the State. It is upon the security of the State that thecitizens rely for the enjoyment of their freedom, and it would be folly to hamper or hinder the Security Service by withdrawing essential powers from them unless the necessity to do so were quite overwhelming. It is important to note that it is no general power that is exercised, but one limited expressly to the cases where there is reasonable cause to believe that subversive activities are already being carried on. We are quite satisfied that the problems of national security are such that no reasonable weapon should be taken from the hands of those whose duty it is to watch over all subversive activities in the safeguarding of British interests. We are further satisfied, from the evidence before us, that the methods of interception hitherto employed are necessary, and have been productive of important results which could not have been obtained in any other way.
One would be bold indeed, Mr. Deputy President, to form an opinion contrary to that expressed by those Privy Councillors, who have wide judicial experience and outstanding reputations. Their view goes to strengthen the conviction that one has that the authority sought by the AttorneyGeneral is justified provided the safeguards that accompany it are adequate. We should not lightly disregard the fact that no act of Parliament of a British democracy - as far as I know - has been cited as a precedent for this legislation. The fact that we are initiating such legislation as this increases our duty to be vigilant regarding these safeguards.
In the booklet from which I have been quoting Mr. Justice Denning had something to say about the idea that this is the beginning of the creation of a police state. I like to remind myself of the horror with which the proposal to create a police force in England in the first quarter of the nineteenth century was greeted by many men in London. In this same booklet his Lordship said -
Anonymous placards were broadcast reading “Liberty or death! Englishmen! Britons!! and
Honest Men!!! The time has at length arrived. All London meets on Tuesday. Come armed. We assure you from ocular demonstration that 6,000 cutlasses have been removed from the Tower for the use of Peel’s bloody gang. These damned police are now to be armed. Englishmen, will you put up with this?”
It stands to the credit of Britishers that they were so apprehensive of the extension of official control of their liberty, following the revolution shortly before in France. Because of the British character and the insistence of the people upon the judicial safeguards that have upheld British freedom, over the succeeding century and a half the police force has become not a menace to that freedom but, as Churchill said, a friend of everybody in the community except the law-breaker. Occasionally in our legislation safeguards that the lawyer insists upon are defective. I mentioned yesterday by way of interjection a piece of legislation that is indeed ripe for overhaul, section 263 of the income tax act, which provides -
The Commissioner or any officer authorized by him in that behalf shall at all times have full and free access to all buildings, places, books, documents and other papers for any of the purposes of this act, and for that purpose may make extracts from or copies of any such books, documents or papers
I am not sure whether that gives the commissioner access to a telephone line but honorable senators can see that no safeguards are provided in that section making it obligatory for the commissioner to record the authority granted by him. He can grant authority to any of his officers without let or hindrance, without being subject to another’s approval. Indeed, he is constantly exercising that authority in this country. Farmhouses, and even farmers’ bedrooms are invaded with no more authority than the arbitrary authorization of the Commissioner of Taxation. I mention this as the sort of thing that I would never condone or approve.
When it is said that the safeguards proposed in the bill do not go tar enough, I take it upon myself to find out what those safeguards are. Only two people can authorize the interception of telephonic communications. The first is the Attorney-General, who will be the person usually concerned with the issue of a warrant. He is undoubtedly the appropriate officer to have this authority. He is the custodian of both the expression and the traditions of the law. He is usually a person who is a potential appointee to the judiciary and he shares the secrets of the Cabinet. Therefore, he is fitted, in my view, to have the authority to issue a warrant to authorize telephone tapping. It has been suggested that this is more properly the province of a judge. No more inappropriate function could be suggested for the occupant of a judicial office. A judge’s duty is to decide, after hearing argument from both sides, issues between governments and subjects, properly presented in court. I cannot agree that judges could be appropriately introduced into the delicate questions of high State secrets, exigencies of national security, and the administrative act of permitting interception of this nature. Some honorable senators will be interested in two thoughtful articles in the Yale Law Journal, where the Attorney-General of the United States of America, Mr. William P. Rogers, advocates the case for wire tapping, and the opposing view is put by the Professor of Law in the Yale Law School, Richard C. Donnelly. Professor Donnelly suggests that it would be proper for a judge to make an ex parte issue of such a warrant. I just mention that in passing as a matter of interest. The emergency warrant is hedged about with stringent conditions. For instance, there is a condition that an emergency warrant for tapping a particular telephone line cannot be issued more than once in every three months, that it can be issued for a duration of 48 hours only, and that it must be followed by an immediate written submission to the Attorney-General himself. Therefore, I see no reason why the Director-General should not have this limited authority.
– Has not a warrant got to be in the hands of the AttorneyGeneral before the Director-General can act?
– No. I think not. The next safeguard that has been suggested is that the material upon which the AttorneyGeneral acts should be given on oath. That proposition, too, is canvassed in the American articles to which I have referred. It is quite clear from clause 6, sub-clause (2.), of the bill that the material upon which the Director-General bases his requestfor an Attorney-General’s warrant must be in written form. Further, it must specify the name, address and occupation of the subscriber. It must also specify the facts and other grounds on which the DirectorGeneral considers it is necessary that the warrant should be issued, and, where relevant, the grounds on which the DirectorGeneral suspects that a person is engaged in subversive activity. It would add some strength to the safeguard to require that the material be given on oath. However, when you are dealing with a matter entailing such grave responsibility as this, and when the material is provided over the signature of a responsible officer in a written document, specifically identifying individuals, and specifically stating grounds and giving reasons for the application, in my view the safeguard is adequate in respect of that matter.
But then there is another matter which gives me some disquiet, and I hope the Senate will discuss it fully in committee. I refer to the safeguard in sub-clause (4.) of clause 6, dealing with the duration of the warrant, which in the bill is limited to six months. I have heard nothing in this chamber, and I have read nothing in the report of the proceedings of another place - although my reading of those reports has necessarily been limited - to justify rejecting the view of the Privy Councillors, expressed in paragraph 75 of their report, that the warrant should have validity only for a defined period stated on the face of it. They say -
Normally this should be for a period of no longer than a month, and in no case should it be for a period longer than two months.
For myself, I have difficulty in understanding why the advice of the Privy Councillors in that respect should be overruled.
The fourth safeguard was suggested by Senator McKenna. It was to the effect that a statement should be written into the legislation that it shall be obligatory on the Attorney-General to review a warrant periodically. I think that requirement is implicit in the legislation. If my views as to the duration of the warrant - one or two months - were accepted, I do not think there would be any need for the suggested review. I certainly think that the Parliament should expect the Attorney-General to review these warrants periodically, and certainly at no shorter interval than two months in the case of any warrant. But I am open to conviction on the proposition that it should be necessary to write such a provision into the legislation.
Then I come to a matter which does concern me, and upon which I have yet to be persuaded that I should agree with the Government. I refer to the enforceability of compliance with the safeguards concerning interception. If the Senate will bear with me, I wish to observe that there is nothing in the bill expressly stating that the legislation shall bind the Crown. Subclause (5.) of clause 5 of the bill states that that provision shall extend to a person in the service of the Commonwealth. I have some doubt as to whether that would include an officer as distinct from a servant, and whether it would include a Minister. That is the first point. The second point is wider in its ambit.
It will be noted that a penalty for a breach of the prohibition on telephone tapping expressed in clause 5, sub-clause (1.), of the bill may be imposed following a prosecution initiated by the AttorneyGeneral. Take the case in which a warrant has been issued, but the safeguards have been infringed and the warrant is, quite contrary to the intention, invalid. There is then a breach of what is now clause 5 (1.). I cannot think that it is proper to leave the sanction which is attached to noncompliance with that provision wholly to a prosecution initiated by the AttorneyGeneral. Rare though they will undoubtedly be, there will be some cases in which the victims of such interceptions will get to know about them and will suffer great anguish at the invasion of their private confidences. It seems to me that a further sub-clause is needed to provide that a breach of sub-clause (1.) will not only be a matter for the imposition of a penalty, but will also be a matter giving rise to an action for damages at the instance of the victim of the interception.
Then consider the case of a completely unauthorized interception, in which no warrant has been obtained. Suppose Somerville Smith has been operating. It would be proper, in my view, to provide - setting one’s sights, perhaps, upon a level of solvency different from his - that any malicious interception without reasonable cause, unlawfully undertaken, should give rise to an action for damages at the instance of the party whose privacy has been invaded. If you give a right of private action to the person who has been injured, you are providing a remedy for a breach of the safeguards that we think are imperative. It must be remembered that in an action instituted without the leave of the AttorneyGeneral, a private person would have to show that the interceptor had been malicious and had acted without reasonable grounds. 1 have chosen that formula to indicate that in cases where there is power to arrest and to institute criminal proceedings, the irresponsible use of that power can do great damage to the reputation of a person. If the prosecution has been maliciously instituted, without reasonable and proper cause, the person who has been prosecuted can sue his prosecutor for damages for malicious prosecution. When we think of the way in which all the authorities liken the invasion of the privacy of telephone conversations to the right to arrest, the right to imprison ana the right to prosecute. I think we can derive from the example of the common law, which evolved the procedure for an action for malicious prosecution to be instituted, a precedent that affords the individual victim of a breach of the safeguards an appropriate remedy.
The last thing that J wish to say, Mr. Deputy President, is that two further aspects of this matter concern me, and I hope that they will be debated in committee. First, in England emphasis is laid on the fact that this power should be reserved, not for the purpose of ordinary, routine security precautions, but for the detection of special, top-level, important breaches of security related :o sedition, treason, mutiny or other major crimes of that sort. Those who have drafted the bill before the Senate have chosen language the generality of which deserves more thought than I have given to it to-day. The bill refers to “ activities prejudicial to the security of the Commonweath “. Those honorable senators who know something of the Army Act will recall that under section 40, which relates to conduct to the prejudice of good order and military discipline, almost any kind of military offence can be dealt with. I feel that the indefiniteness of the expression “ activities prejudicial to the security of the Commonwealth “ could enable an indiscreet Attorney-General, who may come here at some future time, or an indiscreet Director-General of Security, to issue a warrant for a very trivial intrusion into the security of the state. I ask that that matter be considered.
The other point that I wish to make concerns the question whether power to intercept should become a permanent feature of legislation in this country, however strong the prospect of hostile attack may be. Should that power continue indefinitely, or would it be proper to introduce an amendment for the purpose of providing that the authority to be given under clauses 6 and 7 shall expire after three years, unless the provision is reenacted by the Parliament? Those are thoughts that I wish to leave with the Senate. I trust that I have made a case that convinces honorable senators that the matters I have mentioned deserve most earnest debate.
.- Paradoxical though it may seem, I oppose this bill because of my many years of experience of espionage, sabotage and subversion, as practised in the name of the law. I recall a statement made before federation by the late Sir George Reid, who played a very prominent part in the politics of New South Wales in his day. He said, “I care not who makes the law, provided I have the administering of it”. The implication was that he would read into the law precisely what he thought should be read into it. That statement made a very vivid impression on my mind at the time. I also have in mind a statement made by the late William Morris Hughes, who was at one time Prime Minister of Australia. When a deputation waited on him in 1915 and asked when it was proposed to introduce a law to enforce military conscription for overseas service, he said, “ In no circumstances will I ever advocate or support the enforcement of military conscription for overseas service “. He said that very emphatically, in the name of the Government.
In 1916 - the following year - he advocated the enforcement of military conscription for overseas service. 1 was in Western Australia at the time, and I took a prominent part in the campaign against conscription. I had a knowledge of what conscription really meant, gained not from what 1 had read but from practical experience. Before the two referendums that were held - one in 1916 and one in 1917, both of which were defeated by the votes of the people - the sabotage to which I have referred was given effect in the name of the Government. Telephones were tapped. Those who, like myself, were suspected of having taken, or who had in fact taken, a prominent part in the campaign against conscription, were kept under close supervision and surveillance. Fortunately, 1 was able to protect myself, but not so some very worthy citizens with whom I was associated at the time. They were mobbed and they were gaoled. All sorts of things happened to them in the name of the Government, which was encouraged by prominent and allegedly well-meaning citizens then in Western Australia. I have the best of reasons for believing that the telephone tapping that occurred at that time was ordered by the representatives of the Government.
I was privileged to act as PostmasterGeneral from 1945 until 1949, and during that time I learned a good deal about the policy and the working of the Postal Department.
A further action that was taken to counter subversive activities in 1916 was the opening of letters. Senator Wright referred to this matter in his speech. Interference with letters was easy to detect. All you had :o do was address an envelope to yourself. Having sealed the envelope, you placed a small grain of indelible pencil lead under one corner of the flap of the envelope. Honorable senators can imagine what would happen when an attempt was made to steam open that envelope. An indiscreet friend of mine took a violent dislike to Senator Lynch, who later became President of this Senate. He wrote a letter to me in which he said that Senator Lynch deserved to have his farm burnt out. When I got the letter I did not know whether the writer was making a genuine complaint or attempting to incriminate me in something. I put a match to it, and that was the end of it. Later, when the security officers asked me whether I had received such a letter, 1 told them that that was for them to discover. I told them that if they desired they might search my office, but I convinced them that they had nothing to gain by so doing. That is an illustration of the manner in which these people operate.
Let me tell the Senate what happened during the campaign to introduce military conscription into this country. At that time men were volunteering for service faster than they could be equipped and trained. The country was not prepared for war at that time, just as it was not prepared for war in 1 939. One very prominent member of Parliament in England at that time said that conscription meant cheap blood, and the idea had to be abandoned in this country.
– You did not proffer your blood. You condemned them to death.
– I do not take everything for granted and I am not impressed by people who have not read very much or done much study and who therefore are not competent to express opinions. In 1926 Prime Minister Bruce decided to hold a referendum seeking power over industry and commerce and essential services. The late Maurice Blackburn, who was a member of another place and a qualified legal practitioner, pointed out that Prime Minister Bruce intended to introduce a system of industrial arbitration which would give prominent businessmen statutory power to determine rates of wages and conditions of employment. That should have been obvious to the average intelligent layman.
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid). - Order! I fail to see that conscription and industrial arbitration have anything to do with the bill now before the Senate.
– I was about to say that in 1926 telephones were being tapped, as a result of which men and women who were opposed to the referendum were placed in an extremely difficult position. If telephones had not been tapped as an expedient the security service would not have been able to harass people who mav have been somewhat careless in their choice of words when speaking on the telephone. Many people are careless of the way in which they express themselves.
In the 1930’s telephones were tapped, particularly when the waterside workers and timber workers were on strike. I was then in Victoria as secretary of the Victorian Socialist Party and I took an active part in attempting to justify the attitude of the strikers towards the policy of the Government of the day. The telephone in my office in Melbourne was tapped and to the best of my knowledge information gained as a result of tapping my telephone was used against the men on strike. Ultimately the strikers were heavily penalized. I am convinced that anti-Labour governments have not changed their policies in this regard.
In 1941 I was appointed Minister for Aircraft Production. At that time the industry was in a state of chaos and we had to do what we could to restore order. On one occasion security officers reported to Mr. Essington Lewis, who was chairman of the Aircraft Advisory Committee, and to Mr. McVey, who was secretary of the Department of Aircraft Production, that certain executive officers had been overheard giving information that was valuable to the enemy. The security officers suggested that the executive officers, including the late Sir John Storey, should be placed in a concentration camp. I was asked to accept an ex parte allegation and to act on it. I refused to do so. I called the executive officers together and they told me that they had informed the security officers that the information that had been conveyed by them had already been published in the newspapers many days earlier. The executive had not told the security people one word that could be used by the enemy against this country. Later, the man who was responsible for the statement was appointed a judge.
I shall cite another instance related to aircraft production. Security officers reported, as a result of telephone tapping, that certain tests needed to establish the tensile strength of steel had not been made and that there was a danger involved in using the steel for the building of aircraft. At that time, the steel was obtained from the Broken Hill Proprietary Company Limited, and it had been tested and guaranteed by that company. Every inquiry was made and another judge, after hearing evidence from men who had no responsibility - the members of the executive who had the responsibility were not called - ordered the bombers to be grounded. In my administrative capacity I always adopted the principle of conference and agreement before making any decision. I refused to ground the planes, and I gave the security service to understand that it could challenge me either in this chamber or anywhere else because I knew the facts of the matter. When in my experience men have acted as those men acted, I would be remiss in my duty to the people whom I represent in this place if I supported this bill. I know these things, not as a result of what other people had said, but from my own practical experience.
There are many other incidents that I could mention but I have no desire to do so. I am not interested in the slightest degree in character assassination, any more than I am interested to the slightest extent in physical assassination, but I am wholeheartedly in favour of the assassination of subversive ideologies. They are not entertained only by a minority of so-called criminals; they are entertained by quite a number of people who claim to be very respectable, well meaning citizens of this country.
Senator Wright has mentioned that Somerville Smith in one of his letters or documents - he calls the publication “ Top Secret Newsletter “ - referred to the forging of petrol ration tickets in Brisbane. That recalls to my mind an incident that occurred in my office in this building at the time. I was approached by a member, representing both sides of Parliament, and requested to authorize the opening of letters in the Brisbane post office. I refused absolutely to do so. I had forgotten all about the incident until I read what Somerville Smith had said. If his statement is correct, the authorities had all the evidence they wanted and a certain individual was sentenced to three years’ imprisonment. Yet I was asked to be an accessory to what I regarded as an illegal act. I refused to accede to the request on the ground of social security.
In the circumstances I have mentioned, I am not impressed in the least by the contents of this bill. 1 do not accept the statement that there are safeguards to protect the citizens. Senator Wright has staled that if a man has a grievance or has sustained an injury he can place the matter before a court. That may be so, but it is quite possible that a man who has been persecuted and condemned may not have sufficient money to pay a legal practitioner to represent him before a court. My experience, which has extended to quite a number of legal practitioners, has been that they require payment for .their services in advance. I wonder what would be said if the waterside workers or the seamen asked for payment in advance. The point I am making is that there is no protection provided for the working man who has nothing apart from his wages on which to live, if he is unjustly dealt with as a result of the legal tapping of telephones.
Senator Sandford has referred to the attempt that was made by the Government to write into the Constitution the Communist Party Dissolution Act, which had been declared invalid by the High Court of Australia. The proposal was referred to the people of Australia in a referendum and it was rejected by them. Since then, the referendum proposal has been included with other conditions in the penal section of the Conciliation and Arbitration Act that is now being enforced.
In my opinion, the bill before the Senate is designed to facilitate the reduction of working people to the lowest level. As far as it is physically and politically possible to do that, it can be done only by creating a police state. That is what is intended by this measure. I am perfectly certain that if this proposal were placed before the people in a referendum it would be defeated, as the 1951 referendum was defeated. The people are at a considerable disadvantage in this matter. First of all, they do not know what is contained in this proposed act, because they have not been consulted by the Government. If there is anything more subversive or approximating espionage and sabotage than that, I have yet to learn what it is. Many people in the community depend on us to do our very best in their interest, consistent with our party and our understanding. * How can we do that if we are denied an opportunity toexplain to the people what is intended, by this proposed act? All that honorablesenators on this side can do - as we havesaid we shall do - is to vote against thepassage of this bill. My experience has. convinced me that many people who are authorized to administer the law are influenced more by their fears and prejudices than by their capacity to reason intelligently and fairly. 1 am not exactly blaming them for that. In my opinion, the fault lies in our educational system. A person whoexcels in knowledge of the law does not know anything about politics or economics. There are exceptions to that, of course. Anybody who has had experience in the arbitration courts or in other courts must be convinced that what 1 say is true. Most legal men - even the Attorney-General - carry into their profession all the prejudicesand fears possessed by other people. Outside the field of law, the Attorney-General is not much better informed than are the people he is supposed to represent. If we are to legislate fairly and justly, we should, as far as is practicable, let the people know exactly what we intend to do. That is why referenda have been forced upon the Government, many of which have been defeated.
This bill is of paramount importance. lt has been introduced, in my opinion, in order to facilitate the Government’s doing the things it intends to do in the name of British justice and political democracy. 1 have often said that political democracy begins and ends on election day. After the election, Cabinet amounts to an authorized and undeclared dictatorship. What do we mean by British justice? I should like Senator Wright to give us a definition. What he calls British justice is based on class domination and class discrimination. There can be no justice unless you and I are living and working on equal terms with each other. I am not impressed by such terms, as I have said so often. The late John Burns was attacked because, being a pacifist, he resigned from the Asquith Government in 1915. He said that most people are either slaves of shibboleth or prisoners of phrases. If honorable senators read the newspapers and periodicals including “ Hansard “, they will find that that is so. The Government has everything to gain and nothing to lose by taking the people into its confidence and telling them exactly what it intends to do.
In times of war, governments do what the Menzies Government did in 1939. They pass a national security act, which gives them all the power they need. When I was a Minister I made use of such power, and with the assistance of Treasury officials my department recovered nearly £2,000,000 in cases where the Government had been overcharged. We were able to do that because we had the right to examine the accounts of people with whom the Government had done business. The implication of this legislation is that the Government wants to protect the people by tappingtheir telephones. In times of danger, that procedure can be adopted without the slightest difficulty. Danger faced in common is the strongest bond of unity between man and man. We can have our differences on this bill or anything else, but the moment we are likely to be attacked, all our minor differences will disappear and we will think only of the major danger that is facing us.
I was very interested in what Senator Wright had to say about individual liberty. At the appropriate occasion - probably in the committee stage - I should like him to tell us what he meant. He referred to bureaucracy within a department. I agree with him entirely, as a result of my experience, that we should do all we possibly can to prevent bureaucracy. As a result of their education and training, many men who are appointed or elected to positions of authority act arbitrarily, to the detriment of their fellow men. It is only elementary psychology to say that the dominant thought in such a person is to restore his depreciated sense of self-esteem at the expense of the unfortunate persons who are his subordinates. That is quite a common thing.
The more we discuss these questions in public, as they should be discussed, and the more the people are told about what is intended to be done, the more self-reliant they will become and the more capable will they be of protecting themselves. They are told by the press that telephone tapping is a perfectly just proposition, but, not being in a position to study the proposition as it should be studied, they are at a disadvantage.
Finally, let me say that mankind is continually responding to external, internal and conversational stimuli. The more this proposition is discussed as it should be, the better it will be, not only for the people themselves, but also for the Government, if it wishes to be trusted and respected.
SenatorMcMANUS (Victoria) [3.25].- Whether one agrees or disagrees with the arguments that have been used by Senator Cameron, one must concede to him that all his life he has been a fighter for human rights and civil liberties. I believe that the speech he made was in keeping with his earlier career, in which he established himself as a fighter for his fellow man in the trade union sphere and established a record of which he can be proud, even at this advanced stage ofhis life.
Having said that. I cannot go along with him, however, in the suggestion that this measure will bring about a police state. Nor can Igo along with the suggestion of one of his colleagues that beneath this measure is a fascist plot against the trade unions. I think that that is unnecessary and unpardonable exaggeration. As I understand it, nobody has deniedthat telephone tapping has been going on for some considerable time under governments of both characters. Demands were made in another place that if this telephone tapping were to continue it should be regularized and put on a proper basis. It would seem to me that a government that wanted to establish a police state or to engage in a fascist plot against the trade unions would have preferred the previous unregulated state of affairs and would certainly not have brought in this measure to institute some form of regulation. For that reason, I regard all the suggestions about fascist plots,police states and so on, as exaggerations of a type that should not enter into a calm discussion of the meaning of this bill. It seems to me that justification for the bill lies in the fact that a government has the right to take,at times, extreme and extraordinary action, even involving inroads upon civil liberties, in order to safeguard the security of the State. That is expressed in the old Latin motto, salus reipublicae supremar lex: the welfare of the people is the supreme law. I do not know of any political party that has denied that.
In World War II., this country was governed at one stage by the parties that at present form the Government and at another stage by the party that is now in Opposition. During that war, both governments took very grave action involving serious inroads upon civil liberties, and their justification was the preservation of the security of the State. Some undesirable incidents did occur at that time. Anybody who reads the history of what was done to people who belonged to an organization called the Australia First movement must feel ashamed at the treatment that some of those people got, and anybody who knows the treatment that was given to some citizens of German origin during the war purely because they were of German origin, could only come to the conclusion that it must have been a very serious emergency - as it was - to justify powers being reposed in certain individuals to enable them to do things of that kind. But in spite of the fact that those things were done, the people have not wavered in their belief, and no political party has denied, that on occasions of crisis it is necessary for the government to take those powers.
That has happened, of course, also in time of peace. To meet grave emergencies, governments take grave powers involving attacks upon civil liberties. One can see in the penal provisions of the Conciliation and Arbitration Act the opportunity to attack civil liberties but both Liberal and Labour governments have enacted legislation containing penal provisions because they felt that governments must have those powers for use on occasion. The powers have been used under Liberal governments against trade unions, and special, extraordinary powers have been used in peace time under Labour governments. I supported the action that a Labour Government took in1949 and that could have been interpreted by ill-disposed people as a denial of the right to strike - a right which is a fundamental principle of the Labour movement. The Labour Government in those days imprisoned strike leaders froze the funds of trade unions to force strikers back to work, and threatened to use - and actually used - troops in coal mines and ships as strike breakers. I supported the Government’s action because if it had not taken that action it would have abdicated its responsibilities. The Labour Government in1949 was faced by action taken by certain union leaders in this country as part of an international conspiracy, and the Labour Government acted as any rightthinking government should have done, in the action that it took. I supported it, but 1 point out that nobody has ever suggested that a government should be deprived of those powers even in a democracy, because it is realized that occasions will always come when such powers will be necessary.
Justification for a bill such as this obviously would lie in the existence of circumstances that call for it. We should endeavour to decide whether there is a crisis. Is there a situation in this country that calls for these powers? Is there an international situation which requires that the Government be armed with these powers? I think that the Government in introducing the bill, might have devoted some attention to that aspect, because after all is that not the ultimate justification for what is being done? If we look at the world to-day and at our own situation, we realize that we live in a world that is divided into two armed camps. One of those armed camps has set up in every country where it has been permitted to do so, an organization of its own dedicated to planning sabotage, espionage and treachery. The circumstances are that the Government of this country, faced with organized treachery in the activities of the Communist Party, must be armed with the necessary powers to deal with these potential dangers. Therefore,I propose to vote for the second reading of the bill, on the ground that the bill merely establishes a principle that all of us, irrespective of our political views, have conceded for many years. If any amendment is moved which, without taking away from the Government any necessary power, will do something to make the rights of the people more secure, I shall vote for it, but I propose to judge any amendments upon their merits.
I am not sympathetic to the suggestion that a judge should be the person to authorize telephone tapping where it is felt to be necessary. I believe that it helps to safeguard the rights of the ordinary individual in the community if the person who authorizes telephone tapping is responsible to the Parliament, that is, to the elected representatives of the people. Therefore, I believe that the Attorney-General should bethe person responsible for this authority.
If the authority is exceeded or used in any way in which it should not be used, it will be possible for him, as a member of the Parliament and as a member of the Cabinet, to be called upon by the Parliament to justify the actions of his subordinates. I believe, therefore, that it is not desirable mat a judge should have this power.
I am not impressed by the statement that the first director of the security service was a judge. He may have been a judge, but as the director of the security service he acted in an entirely different capacity. Nor do I feel that it would be a good thing for a judge always to be in charge of the security service.
I realize that there are some provisions in this legislation that give rise to justifiable doubts. I doubt very much whether it will be possible entirely to police phone tapping. I understand that in this country, not only the Australian Security Intelligence Organization, but also intelligence organizations under the control of the Armed Forces are active. How are we to be sure that if the opportunity arises for those other organizations to obtain information it will be obtained only in accordance with the directions of the Attorney-General? We know that people use dictaphones and that letters are opened on occasions by people who seek information. We know that there is phone tapping. I cannot help but wonder how all these other actions which impinge upon civil liberties will be dealt with if we are going to be ultra-strict about this one.
It seems to me that the best you can do is to say, “ a government must have security powers. We shall give this Government security powers and we will put our trust in the fact that the people can throw it out at an election if it abuses these powers. We shall trust in that to safeguard the civil liberties of the people.” The countries where civil liberties have been harmed by this kind of thing are the countries where the people have not been able to change their governments at election time. The ultimate safeguard of the people’s liberties lies in the democratic constitution of this country.
I believe that this provision, if it ls to be exercised, should apply to all members of the community. I have no sympathy with the idea that members of the Parliament should be exempt. A member of parliament can be a traitor just the same as any one else. When Gouzenko, as a member of the Soviet Embassy in Canada, defected, his evidence clearly showed that a member of parliament there had been a leading member of the spy ring. That member of parliament proved that he had been a member of the spy ring by disappearing immediately he realized that the game was up. Therefore, if this provision is to be exercised and the ordinary members of the community are subjected to it, we as members of Parliament have to say, “ We demand no special privileges for ourselves over and above those that other people have “.
I do not think there is anything in the suggestion that this involves a plot. I have read all the questions that were put in another place last year and I came to the conclusion when the bill was introduced that it would at least be an improvement on what we have had before, because previously we had what is known in good Australian language as an open go. Therefore, I have no sympathy with the idea that this is a vicious plot against the trade unions. For 50 or 60 years the trade unions of this country have shown themselves quite capable of defending their liberties. I have not found that the sensible trade union leader gets into trouble with the law. There may be one or two extraordinary cases, but in the majority of cases the type of trade union leader who gets into trouble with the law is one who has a particular political ideology - and that is not Labour. The average good Labour man who runs a trade union to-day is capable enough and has common sense enough to conduct his organization so that it gets decent conditions for its members. He can show all the militancy that is required without coming up against the laws of the country.
What I fear in regard to the trade unions of this country is the attempt by some people to use them not for the preservation of human rights but to take away human rights and civil liberties. The question of trade unions and civil liberties has been raised in this Parliament. One of the things of which the unions were always proud in my younger days was that they welcomed into the fold people of every political ideology. 1 have sat on trades hall councils with communists, Labourites, Liberals, revolutionary socialists and anarchists. But in Hobart eighteen months ago a delegate was expelled from the Trades and Labour Council on one charge - that he stood as a candidate of the Australian Democratic Labour Party. When the Hobart Trades and Labour Council did that, it did something that was opposed to a principle that the trade unions of this country have stood for over the years - the principle that no trade unionist should be penalized for his political opinions. We see similar happenings in Western Australia, where two men were deprived of official positions to which they had been elected in their unions because they gave out tickets for a Democratic Labour Party candidate. Also, two men were put out of employment because they would not contribute a levy to a political party in which they did not believe. Hungarian and Ukrainian immigrants will probably be threatened with loss of employment unless they pay a levy to finance trips to this country by their former oppressors, who were supposed to come here as trade union delegates, though everyone knows that there are no trade unions in Communist Russia or in red China. The I.C.F.T.U. with which the Australian trade union movement is associated, and the International Labour Office, have both declared that.
I have no doubt about the ability, the strength, the power and the determination of the Australian trade unions to protect themselves if anybody attacks their rights, but what I am starting to doubt is the ability of the trade union movement to protect itself from the red ants who are burrowing in and trying to get the trade unions to turn against principles of justice that they have had for years. One of those principles was that a member of a trade union could be an anarchist, a revolutionary socialist, Liberal, Country Party, Labour, or anything else, and he would not be penalized for his political views.
I want to conclude my remarks by commenting on what has been said about pimping and informing. Every Australian’s sympathies are aroused by an appeal against that sort of thing. None of us likes it. It would probably be the strongest ground on which the average Austraiian would oppose such a bill as this, but if this measure is enacted at least it will be an attempt to put phone tapping upon a regularized basis so that it will not be done in the old way, which involved people being paid to spy on or tefl stories against their friends and associates. All the informing and so on has not been on the one side.
I have been very interested to hear the Petrov royal commission brought into this debate. One must ask oneself two questions about that inquiry. First, did it reveal espionage? I think that any fair-minded man must admit that it did. But the second aspect was this: Was it used for political purposes against the Labour Party? I think it was, but I have to say what I said before the split in the Labour Party occurred, and what many officials of the Labour Party also said, that the wounds inflicted politically on Labour by the Petrov commission were, to a large extent, self-inflicted, and were the result of the unfortunate activities of the leader of the Labour Party at that time.
But to get away from that point and on to the question whether people may be falsely accused, let me say that I take a great interest in this question, because I was one who was falsely accused, but not in the usual way, as a result of the Petrov commission. In October, 1954, I read a press statement by the federal leader of the Labour Party, in which he said that I - and he mentioned my name on every radio station and in every newspaper in Australia - had been engaged in a plot with the Director-General of Security and a number of other individuals, and with Petrov and all his associates, that I had helped to organize a plot, and that I was one of the principal figures in the organization of the Petrov allegations.
– Who said that?
– Dr. Evatt said that, over every radio station and in every newspaper in Australia. I am giving these facts for the benefit of those senators who talk about false accusations as a result of the Petrov commission. When I heard those statements and read them I can tell the Senate that I had never met the Director-General of Security or any of his associates in my life. I did not know any of them. I had never met Petrov or any of his associates.I had never had any association in any way with anything to do with the Petrov commission. Yet the leader of my party said, in the press and on the radio, that I was one of the main organizers of the plot.
To those who say that we must have justice and that we must not have a police state let me say that I asked the executive of my party what I should do. Just before that time the federal executive had carried a resolution instructing all members of the party not to attack other members in the press. This arose out of attacks by certain leading members of the party on other leading members. I was told by the Victorian executive, “ Even if the federal leader does not obey the rules, you should “. They said I would have the opportunity to answer, before the federal body, the story that I had organized the Petrov conspiracy. When Dr. Evatt appeared before the federal body and was asked to lay his charges, he refused to lay a charge. He had smeared members of his party in every newspaper in Australia, but he refused to lay a charge. I heard him speak for nearly a day and a half, and he never mentioned my name. I have never had an opportunity to answer that allegation before the constituted bodies of the party to which I belonged.
The decision of the federal executive was that 22 out of 25 executive members should be sacked. Three were not sacked, of whomI was one, but, believing that if people were going to be dealt with in this way a protest was necessary, I went out with the other 22.
I want to close with this remark: All injustices are not perpetrated legally. When the federal executive of the party was about to make its decision, I was asked by a member of that executive to meet him at half-post seven one morning in a secret spot where no one could see us. He told me that the federal executive had made its decision. I said, “ How can that be? They have not heard the defence; they are still hearing the prosecution.” He said, “ Brother, the numbers are there. They are not interested in facts or evidence. The Victorians are going to be done.” He then said, “ My advice to you is this: They are prepared to leave you alone, and I advise you to be in it.” I said, “ I will not be in it “. He said, “You can be out of it if you like; I am going to be in it.” He has done very well out of it since.
I want to say this also to those who talk about justice and fair trials: The federal executive met on the Thursday and, having asked informers to attack Victoria for two and a half weeks, it said that we could have half a day to reply. When our representatives stood up to reply to the allegations, Mr. Chamberlain walked out. He never heard the defence. He was in the next room writing out the sentence.
I want to conclude by referring to remarks made by Senator Cant. I am sorry that Senator Cant should have taken the stand that he did in regard to Mr. Chamberlain. Senator Cant called Senator Cole and myself fascists. I made no objection, because I always believe that, consistent with standards of good taste, there should be the utmost freedom of speech in this place. But let me ask why Senator Cant, if he feels it is right for him to call me and Senator Cole fascists, should object if somebody else calls a member of his party a Communist. I have learned in the Labour movement and the trade union movement that if you give it you must be prepared to take it. I have never called anybody in this chamber a Communist, because I have looked at all the members of the Senate over the last four years and I have not seen one of them who is a Communist or who has Communist sympathies. I do not call members of this Senate Communists because I know they are not, I do not call them fascists because I know they are not - and I know that Senator Cole is not a fascist. But if Senator Cant intends to call members of my party fascists, we will reply in kind. I feel sure that he will realize, having been through the rough and tumble of the trade union movement, that if he is going to call other people names he has not much right to protest when some of the dustcans are thrown back.
Mr. Chamberlain is another who has never pulled his punches when talking about members of the Democratic Labour Party or his other political opponents of any kind, and I do not think Mr. Chamberlain needs any protection. I feel sure that he has been in the Labour movement long enough to protect himself. As for the Joe Zanni story,
I heard it years ago. It has had wide currency over the years. I heard it from prominent members of the trade unions in Perth, and I heard it from two members of the House of Representatives belonging to the particular gentleman’s own party. One of them told me that when he heard the story from a certain individual he did the right thing. He said, “ I felt Mr. Chamberlain had the right to know. I went to him and told him the story.” Mr. Chamberlain said to him, “ If I take this man to a court of law will you stand up and give evidence to that effect? “ The Labour M.H.R. said, “ I certainly will “, and Mr. Chamberlain did nothing further in the matter. If that is so, apparently he does not feel particularly concerned about it. He obviously must know about it because it has been freely talked about. To be fair to him, he has issued a denial of the story.
I read an article by Mr. Chamberlain not long ago in which he referred to members of the Democratic Labour Party as lunatics. I have seen statements by him describing others as fascists. If he makes such statements, why should he object if people occasionally throw a dustcan back? I am a believer in the freedom of speech in the rough and tumble of debate. I believe that it is best to conduct your discussions on a high plane. I admired the speech of Senator McKenna on this bill. I read it this morning. I also admired the speech of Senator Wright. I think it is an excellent thing if you can conduct discussions on such a plane, but if people wish to conduct them on another plane they have no right to complain if other people reply to them in the. same way.
That is all I have to say in regard to this bill. As I said before, I believe it is a necessity - from some points of view, perhaps a regrettable necessity. I do not believe that any government, whether Liberal or Labour, in the present cold-war situation in the world would for one moment agree that it should be deprived of the kind of powers with which the bill deals. I do not see much difference between telephone tapping and the use of dictaphones, and the opening and censoring of letters and all the other things that are done in war-time. I am sure that a government, particularly in the present world situation, is entitled to have such powers. I will vote for the second reading of the bill, but if it can be shown to me, by an amendment, that there is an unnecessary danger to the civil liberties of the people I shall vote for the amendment.
.- I deeply regret that Senator McManus took the opportunity to open old wounds and to pour salt into sores. I fail to see what that has to do with this bill. I noted that his remarks tickled the earsof the Liberal groundlings. There is always a degree of tension when a matter is being discussed in this chamber that exacerbates the feelings of antagonism that may exist between one section of Labour and another. However, I suppose that we would do the same in similar circumstances. We often hear of the fights and struggles of the Liberal Party and the Australian Country Party, and we smile because we know that they result from deep-seated antagonisms. Only the other day I came across a letter written by the late Archie Cameron at the time he left the Australian Country Party. It is an astounding letter. I could read it in the Senate, but I do not intend to do so. I could also tell of my experiences with the Queensland Labour Party. I know the basis of the Queensland Labour Party and of the Australian Democratic Labour Party, but I am not going to raise that matter here. It is a matter of history. The position is the result of happenings in other countries, and it was fated to arise here.
One section of the Labour Party was in the party for a long time, although it did not believe in the principles of the party. Because of the antagonism between one section and another, we have speeches similar to that made by Senator McManus, and we have the work of the organization in Queensland. I do not know whether it interests honorable senators to learn that I was a great friend of Father Butler, who has now passed away. He was a real acting Christian not a man who just mouthed platitudes. For 25 years he went to the lazaret, the gaols and the old men’s homes. He and I had many a night together, and it was very interesting indeed. At one time we went down to the Stadium to see some boxing and wrestling, and he was very angry when Archbishop Duhig put a stop to such outings. He had a sister, and she used to get on the telephone and tell me what was being done at the Queensland Labour Party meetings in the way of character assassinations and so on. I realize that our opponents are out to destroy men like me and others in the Australian Labour Party. That is a part of their business. I used to say, “ Do not tell me that over the phone. There is telephone tapping “. She would say, “ Oh, last week they said what a good fellow Senator Brown was, but recently he fell down in the Senate after he burst a, blood vessel - and since then he has been a bit crazy “. On another occasion she told me that Senator Brown was said to be a booze artist. As a matter of fact, I think I am one of the most sober men who ever drew breath in this Parliament.
I do not intend to stress these things. I know that when organizations break up there is nothing too low for one section to say about the other. That has happened throughout history. In relation to religious matters, we know that many years ago the various sects have cut one another’s throats, tortured one another and sent their enemies to the stake. To-day, in all countries of the world where political parties exist there are men who are so unscrupulous that they will say all manner of hateful things about their fellows and do everything they can to harm them. The Australian Labour Party is not alone in that respect. That kind of thing is to be found in the Liberal Party, the Australian Country Party, and in every walk of life. There is always hatred and intolerance.
I hope to follow a straight path. I cannot be impartial, because I have been brought up, for 60 years, in the Labour Party. I must of necessity gravitate towards those in my party and see things in the light that they do. I regret, as much as Senator McManus does, that certain things have happened in the Labour Party. Our enemies have done their best to exacerbate the situation and to drive the wedge in deeper. But let us have common sense in these matters. I agree with Senator McManus that in unions and political parties there should be Christian charity and more tolerance. I do not want to say any more about that subject, but shall proceed to discuss the bill.
I do not claim that I will say anything in regard to this measure that has not been said before, but I want to make it clear that members of the Australian Labour Party were unanimous in their opposition to the bill as it now stands. There is no question of that. Undoubtedly, we did differ on the tactics to meet the situation. A political party surely is at liberty, within the confines of its own party room and under its own rules, to discuss these things as a political party and to decide by a democratic majority vote whether or not a bill will be agreed to or disagreed with, and whether or not amendments should be moved. In my 28 years in the party I have seen no greater unanimity than there is on this question. 1 commend Senator Wright for directing the attention of the Senate to the fact that a party that calls itself socialist should be mindful of the civil liberties of the people. I thought that in Senator Wright we had a man of principle who was not prepared to take a political advantage but who proposed to analyse the bill and show its weaknesses and to indicate, in a reasonable, sensible and practical way, the possible effect that the measure would have on the people. I admired the way that he spoke in regard to it. lt was indeed refreshing, like a draught of cold water in the desert to a man who had gone for days without water. The same comments may be made of Senator McKenna’s speech. He dealt with the bill in a practical, sensible and realistic way. He has his views in regard to it, as all of us have. No political party has complete unanimity. The members of various parties are not political cabbages. They are men and women who meet in association as a party to come to some common agreement. Senator Wright very ably analysed this bill and I thank him for his informative speech. His remarks were refreshingly different from those of some other honorable senators opposite who attacked the Labour Party. I think that all of us agree that a security service is abominable but it is essential in view of the present tension in the world. All countries to-day, unless they be located on the top of Mr Everest, need a security service. Senator Wright went to a great deal of trouble to delve into various books dealing with spying and espionage and the extracts that he read from them were most interesting.
The Opposition asserts that this bill is a bill to legalize telephone tapping. Honorable senators opposite disagree with that view of the bill. Well, we will say that it is a bill to regularize and make official the practice of telphone tapping. Nobody can deny that the bill does that. Australia, alone of the countries in the British Commonwealth, is to place legislation of this type on the statute-book. The legislation will be passed because the Government parties have the numbers. The bill, when it becomes law, will regularize the spying by phone tapping carried out by our security service.
I want to deal with this legislation in a reasonable manner without blackening anybody’s character or alleging that he said this or failed to say that years ago. My attitude is that the bill confers too much power on the Attorney-General and the DirectorGeneral of Security. If a warrant is issued by the Attorney-General, the DirectorGeneral of Security may tap a telephone line for six months. On his own authority the Director-General of Security may tap a telephone service for 48 hours.
All honorable senators agree, I am sure, that the Parliament must do everything in its power to protect Australia from subversive activities. In a sense this is a defence measure and it may be said that the Government has been motivated by considerations of defence, but there may be some members of the Government parties who are not so motivated. They may see in the bill an opportunity to tap the telephones of members of the Opposition. However, in the main I think the Government has been motivated by considerations of defence. When Mr. Chifley was Prime Minister he often conferred with Mr. Menzies on defence matters. I think that this matter of telephone tapping is so serious that it calls for greater consideration by both sides of the chamber. Both sides should meet in conference away from the political atmosphere that pervades this legislative chamber. I think Senator Wright would agree with that proposition. All of us want to stop subversion and safeguard Australia but this proposalis so farreaching that it may undermine our democratic organization so severely that before we know where we are, a secret organiza tion will have been set up with more power than Parliament itself. If we are to be patriots, instead of throwing political mud at each other we should agree that the measure calls for understanding and analysis.
I know that very often contentious matters such as this are referred to by the Government as small matters. That reminds me of the dark girl who had a baby out of wedlock and whose mistress remonstrated with her, whereupon the dark girl said, “ It is only a little one “. However, little things grow into bigger things. Possibly this secret organization will be like other organizations and will seek to add to its power, doing everything possible to safeguard itself and look after its own interests. I remember that the late Billy Hughes many years ago said, with regard to the Public Service, that if you give an ambitious public servant a table, a chair and a room, before long he will have a department to himself and a dozen clerks assisting him. So it may be with the security service. This bill will give a fillip to its activities. Parliament’s recognition of phone tapping will add impetus to its development. Without the safeguards mentioned by Senator Wright there is every possibility that it will grow very large indeed and become a dominant force politically in this country.
I have had dealings with security officers in England and Canada as well as in Australia. I know that very often they are decent fellows, but they are monuments of suspicion. All you have to do is say a few words and they will build a report on them. I remember my early days when I took part in a free speech fight in Brisbane, for which I was gaoled. Some security men came along with revolvers drawn and they were shaking like aspen leaves. They thought that I and my colleagues were cutthroats and revolutionaries. As the late Senator Joe Collings said, we were the tamest revolutionaries who ever slit a throat. Those security officers were on our backs all the time. I am now going back 40 years, and following that fight, every Sunday night when I walked into Queen-street two or three security officers followed me. They used to come and stand outside my house, and I was followed everywhere. All that the members of the International Socialist Party were battling for was the right to speak in the streets of Brisbane as other people did. But we were told by the tory government that we could not speak on the streets of that city, and lo and behold the police came along and subsequently we all did a few months in Boggoroad gaol.
Communism, used as a stalking horse, has been a big influence in maintaining the Liberal Party in power. Now the rump parties, the Queensland Labour Party and the Australian Democratic Labour Party are playing their part in that connexion. We have seen a horrible picture painted of communism. Here in Australia, people exaggerate what others say. In my time in order to save this country for democracy, I have said all sorts of things. In Hyde Park in London, in the presence of policemen, I have heard people violently attack royalty and talk of anarchism - the philosophical and the murderous type. They talked about religion and attacked the Archbishop of Canterbury or the Archbishop of York. But nobody took the slightest notice of them, io-day in Australia, if one utters a word that is different from the views of the mass of the people, he is attacked and derided as a non-conformist either socially or religiously.
To-day, if you are of the working class movement and start something out of the ordinary or advocate an enthusiastic struggle in the industrial field or an intense battle in support of Labour, you are a Communist! But when one asks people what is a Communist, they cannot tell him. So many people do not understand the difference between communism and socialism. If people whisper something to the effect that a man is a Communist or a philosophical anarchist, or that he does not believe in religion, he is immediately branded as being a terrible man. Some years ago on the eve of an election Archbishop Duhig in Brisbane published in a newspaper an attack on the nationalization of banking and Labour men like Mr. Conelan lost their seats in the House of Representatives. Such a statement appealed to the prejudice of the people, and to their emotionalism. If you are to win elections, you often have to forget the truth and appeal to the prejudices and emotions of the people.
Communists let it be freely known that they believe in unrest; it is a part of their tactics to create unrest, to stir up fights in the street. There are classes in Moscow that teach them how to do so. But why blame the Labour Party because the Communists adopt this technique in their efforts to destroy modern society? This does not mean that we should form secret societies and organizations for the purpose of gaining, information sub rosa. Certainly not! 1 know every member of my party and, contrary to what the members of the Liberal Party, the Country Party, the Democratic Labour Party and the Queensland Labour Party have said, I cannot find one Communist amongst them.
There is a vast difference between communism and socialism. We believe - and I have believed for 65 years of my 75 yearsintensely - that we of the Labour Party ought to conserve every particle of freedom that has been won so hard over the years. Our argument is that we must not give way if at all possible in respect of any freedom that has been won. Why should we be accused of being Communists whena small, well-organized party can dominate society? We do not believe in that. We believe that Parliament is a democratic organization which should be improved, and that we should seek at all times to maintain in this Parliament freedoms that have been won by the people. But where we see financial capitalism running contrary to the welfare of the people and not delivering the goods we, representing the people of Australia, exercise our powers in this Parliament to bring about social and economic re-organization to direct those goods into the homes of the people. We have a right to speak against the activities of those who are traitors to Australia. I refer to the greedy people. We see the greedy ones of this community using this Parliament and their own power for the purpose of their own aggrandisement. Have we nol a right to speak in those circumstances? You can call us socialists or Communists or whatever you like. I believe in socialism and economic organization to this end - the greatest amount of wealth shall be produced in Australia for the common good. If that is socialism, then I am a socialist.
Let us look for a moment at what is the greatest boost to the development of communism. I admit that there are many who would use-
The ACTING DEPUTY PRESIDENT (Senator Pearson). - Order! I ask Senator Brown to connect his remarks with the bill.
– I am doing so, my dear friend. I am telling you now about phone tapping. I am about to point out that as phone tapping will not solve the problem of the development of communism. Even if a prohibition was placed on the supply of telephones to Communists in Australia, their machinations and other methods of subversion are so arranged that it would not make any difference. One of the greatest boosts that could be given to communism would be the destruction of the Labour Party. The way the Queensland Labour Party, the D.L.P., and the Liberals are going to-day, they are doing their best to destroy the Labour Party as a political party in this country.
AH I want to say is that phone tapping will not solve the problem at all. It is a peculiar thing, but there are minds- in the community that seek to adopt this method to overcome political and economic difficulties. I have had considerable experience over the years in the industrial movement and I have met many men. I have heard their arguments and I know how they have changed. At one time many of them were bitterly opposed to us, but they came to realize that it was necessary for the workers to develop their organization so that they could command the best possible price for their labour, because if the workers had good wages they would be good spenders, and many people would benefit. These things happen in the course of time. With the development of the economic system, knowledge comes to people and the putting of that knowledge into operation means an improvement in standards of living. The Labour Party is out to improve living standards, but it fails to see how an improvement in the standard of living, the destruction of communism or anything else will be brought about by this bill, which gives such power to the Attorney-General and the DirectorGeneral of Security.
I do not think that a politician should be put into this very onerous position, which calls for great understanding and great tolerance. I am doubtful - I am sincere when I say this - whether any politician who was given the power that this bill proposes shall be given, would be able to act with sufficient impartiality. We have seen over the years how men on both sides of this chamber have become very bitter. We saw some bitterness displayed to-day. I admire Senator Paltridge very much, but he fell from grace to-day. Senator Aylett reminded us that Mr. Menzies named certain people as being Communists but then had to withdraw his statement and apologize. We know that in every political debate in this chamber, on the hustings, or wherever it may be, bitterness creeps in. The mind of a politician - I am referring to people on both sides of politics - is conditioned; Could a politician give an impartial decision if he were asked to permit the head of our spy organization to tap a telephone? Is it not possible that a parliamentary colleague - Liberal or Labour as the case may be - will go to an AttorneyGeneral and whisper in his ear that he should or should not grant the request? We know the whispering that goes on in every walk of life. Would the AttorneyGeneral be able to withstand that pressure? I do not think so. These are matters which should have been discussed in conference between the Labour Party, the Liberal Party and the Country Party. They are serious matters.
The turn of political events may mean that Labour will get back into power. I know that the members of the Liberal Party hope that that will never happen, but we hope that it will happen after the next election. Suppose that Labour did get back into power and that that party decided to appoint, say, Mr. Eddie Ward as AttorneyGeneral. He is a strong partisan of Labour, and I have every respect for his fighting qualities. What would some Liberals say then if we came forward with a bill of this nature? Would they not be looking around for means to overcome the difficulty? Would they not say that one of our ministers was prejudiced and that it would be grossly unfair if he were placed in the position suggested by this bill? We say that now. The majority of the members of my party feel that it would have been better if all parties had discussed this problem and tried to arrive at a common understanding.
Subversive activities are taking place in the world to-day. We want to control them; we do not want them to dominate us. We should have been able to discuss this matter from every viewpoint, instead of having the bill thrust upon us in the dying hours of the session and considered in the heat of political disputation. The Government says that this is a defence matter, and we agree that it is a defence matter. I was pleased to hear our leader, Senator McKenna, and Senator Wright speak in the way that they did.
Before I commenced to speak, Senator O’Flaherty handed me something that is of great interest to me, because it shows how the security people do their work. We know how they fasten on to the least little thing, and that they are out to hound people like bloodhounds. On 17th March, 1960, Senator O’Flaherty asked a question relating to a complaint by the mother of a teenage girl about the way in which the girl had been interrogated by security officers at the Weapons Research Establishment in South Australia. Two young girls were working in that establishment and they were talking - apparently over the telephone - about dancing. I do not know whether they were talking about rock and roll, but in their conversation they used certain words that are used in the Weapons Research Establishment - words such as “ bombing “ and “ shooting through “. Lo and behold, within 24 hours the girls were called into an office where security officers questioned them for five hours. They were asked about documents that were supposed to be in their possession. One of the girls had written something about dances and had passed it to the other girl. She was not supposed to use any departmental paper for private purposes. The security officers questioned the girls about documents, and then they went further. According to my information, they got hold of the dear old mother of one of the girls and interrogated her for several hours. Indeed, they interrogated the mothers and fathers of both of the girls and asked them with whom they, associated, whether they were members of the Communist Party, the Labour Party or some other party, and so on. They interrogated and questioned these people for hour after hour.
I am using that incident only as an illustration of the manner in which this organization works. Security officers are psychologically the same in every part of the world. This work seems to attract a certain type of man. We admit that there must be some sort of security investigations in time of war, because we cannot allow ourselves to be destroyed by an enemy, but in peace-time there is a grave danger that, unless we watch these activities, our liberty will be taken away. As our leader and Senator Wright said, we should explore every avenue for safeguarding the people of Australia from intrusion by this organization into their private affairs.
The Government is going to give the organization the right to tap telephones. Is there anything worse than that? Honorable senators know how people in the country districts hate community telephones, or party lines. If you make a call on a party line, every Tom, Dick and Harry listens in. Some people love to hear a bit of scandal and always have their ears open for it. Quite often you have to swear at them to get them off the line. That is a comparatively simple thing. Nothing could be worse than to know that you were suspected by anti-Labour people of being a left-winger, and to realize that when you spoke on the telephone some one was listening.
We on this side of the chamber are opposed to the bill because it has not been fully considered. We are opposed to telephone tapping. In every part of Australia there are employers who, although they are good fellows personally, are bitterly opposed to Labour’s ambitions and to the trade union movement. I have had a lifetime of experience and I speak with bitterness because I have been driven from pillar to post. I listened a few days ago to Senator Gorton talking about some unionist who had been dealt with harshly by his union and my mind went back over the years. Time and time again, as an advocate of Labour policy and industrial action, I have been boycotted. Hundreds of thousands of men and women have been boycotted over the years for the same reason. Underlying the suavity of the modern capitalist and those who support him is a psychological feeling of bitterness against organized labour, both industrial and political. Because we are afraid of this bill and believe that it will be used against unionists and the trade union movement, we oppose it.
.- I oppose the bill. As a result of the discussions that have taken place in the Senate and in another place, we now know that telephone tapping has been engaged in for some time, despite the fact that when the Government has been challenged on the subject on various occasions its answers have been evasive. When members of the Parliament complained about telephone tapping, the Government denied that it had occurred. But the Minister for the Navy (Senator Gorton), in the first sentence of his second-reading speech said -
The purpose of this bill is to limit the interception of telephonic messages in their passage over the telephone system of the Commonwealth so that such interception can take place only in clearly defined circumstances and on clearly defined conditions.
He continued -
At present, conversation on a telephone service can be intercepted solely on the authority of the Director-General of Security.
It is proposed that the power of the Director-General of Security be limited. The Senate is entitled to a full explanation of the reason for the Government’s change of attitude. Sole authority is being taken from the Director-General and the Attorney-General is being brought into it. Is the Government satisfied that there has been abuse by the Director-General and that the present system has dealt unfairly with people? These facts should be before the Senate in order to induce us to vote for a system which has been described by eminent authorities cited by Senator Wright as savouring of eavesdropping. The Government has not given us the reason for seeking a change from the present system and for making telephone tapping the subject of an act of Parliament.
The Government has endeavoured to sugar-coat this far-reaching departure from the existing procedure. The following passage from the Minister’s speech struck me most forcibly: - * . . I* remind honorable senators that before an interception can take place, first the DirectorGeneral of Security must be satisfied either that the telephone service is or is likely to be used by a person who is or is likely to be engaged in. activities prejudicial to the security of the Commonwealth, or that the telephone service is being, used for purposes prejudicial to the security of the Commonwealth . . .
That sounds very nice. It seems that weshall make very sure. But how is the Director-General to become aware of theseconditions? What will lead him to suspect, that a telephone is being used for purposes that are prejudicial to the security of the Commonwealth? Will he suddenly think of a certain telephone? He will have to provide the telephone number, the address, and the name of the subscriber. Where will he obtain the information? Will it not mean that long before the Director-General approaches the Attorney-General for a warrant he will be spying on a certain individual, whose telephone service will be under surveillance by security officers? Or will the security service, out of capriciousness, decide to listen to what might be said on a certain telephone line? The arguments advanced by the Government do not ring true. It is said that this is a bill to limit interception. Telephone tapping is foreign to the things in which we believe and is an interference with freedom. Is it any wonder that we are afraid of the bill and of the powers to be conferred by it on the security service? We regard the bill as an attack upon the liberty of the people.
Senator Wright cited a White Paper and other authorities. I do not know whether those authorities gave any idea of the conditions surrounding the introduction in England of a measure of this kind. To-day we are at peace. If we were at war, in my humble opinion it would be necessary for the security service to undertake certain investigations.
– Would that not be shutting the door after the horse was out of the stable?
– No. If we were at war, opportunities would exist, without the passage of this legislation, for these investigations to be made. But the Parliament is now being asked to make it the law of the land that any telephone line can be tapped. Senator Brown has reminded us that there may be changes of government. We do not know what kind of governments there may be in the future. They might not be purely Labour governments; they may be governments of a different character altogether. I think honorable senators appreciate what is likely to happen.
Though we may have the greatest confidence in the Director-General of Security who is administering our security service to-day, and though there may not be the slightest breath of suspicion of him or his officers doing anything underhand, who knows what persons will come along in succeeding years, what philosophies they will have and what their particular fears are. I regard the issue of a warrant by the Attorney-General under this bill as purely a matter of form. The Attorney-General has - many duties to perform. He has a security service at his disposal. If the officer administering that service asked the Attorney-General for a warrant, is the Attorney-General likely to refuse it? Will he go into the request minutely and get information additional to that supplied by the Director-General? Where will the security officer get the information that he presents to the Attorney-General? The AttorneyGeneral will have issued no warrant to him, yet the Director-General will say, “ Here are the facts that I have gleaned “. From where? From his personal observation of the individual or from just noting whom the suspect might have met in the street? Or will he have obtained the information by listening in on the person’s telephone? For how long will he have listened in? Under this bill will the AttorneyGeneral be obliged to ask the officer of the security service, “ How long has this been going on? “ The whole thing is so repugnant to us and contrary to our way of life that I cannot conceive these powers being granted, especially in time of peace.
Why do members of the Labour Party suggest that the industrial movement is likely to be spied upon? It is most difficult to define security and to determine what actions are likely to affect the nation detrimentally. I should like to hear Senator Wright defending an individual charged with a breach of security. Having listened to the honorable senator expounding the law for some time, I consider that he would most effectively present a case in favour of a client whom he was defending against such a charge. An individual’s thoughts and outlook on certain matters might lead people to believe that a man was committing a breach of security. We have seen an instance of that in this chamber. I recall that in the debate upon the Communist Party Dissolution Bill, under which it was proposed to outlaw the Communist Party, all sorts of extraordinary arguments were advanced by some honorable senators and by honorable members in another place about what was likely to happen.
Some people can see subversion in the most innocent action. Honorable senators who were present during that debate will recall only too well all of the things that it was thought would happen unless the Communist Party Dissolution Bill became law. It did not become law. The High Court of Australia ruled that it was ultra vires our Constitution and the people refused to make it the law of the land. But what has happened? Have all those fears eventuated that were conjured up in the minds of honorable senators and honorable members in another place, their spokesmen in the press and all those other good people who really believed what they were saying? Australia is in no more danger to-day than it was then. I believe it is not in as great a danger as it was in those days.
Careful consideration must be given to this measure. I am not satisfied that the alleged safeguards will protect the community. Last week during the debate on the Conciliation and11 Arbitration Bill the question of Sunday labour was before the Senate. Senator McManus and I addressed ourselves to it. For the past fifteen weeks or more no work has been performed on the Melbourne wharfs. The trade unions covering those employees has been mulcted in heavy penalties. What is happening at this very minute in Melbourne? I have mentioned that in the industry in which I was engaged, men had the right to volunteer for Sunday work. That right is about to be given in Melbourne. A conference is being held there, and those taking part will agree that if men have an objection to working on Sunday they can be absolved from working on that day. Why could not that have been done fifteen or sixteen weeks ago?
– Because the union would not let them work on Sunday.
– The union never prevented them from working on Sunday. Men stayed away from work on Sundays.
The outcome of the conference to which I have referred indicates that to-day it is possible to achieve a reasonable attitude as between employer and employee and to discuss the rights of the individual. Had this legislation been in operation a few weeks ago, do honorable senators opposite think that officials of the waterside workers’ organizations in both the Federal and State spheres, who were telephone subscribers, would not have had their telephone lines tapped? Would not security officers have worked overtime to listen in on the telephonic communications that passed between those people? We believe that that is what will happen in the future, and we think we have great justification for that belief. Are not the workers in industry, those who receive wages instead of dividends, entitled to discuss the pros and cons of their working conditions? Are they not entitled to discuss between themselves their ideas about what should be done? Surely to goodness we have not reached the stage in our society where it is deemed to be subversive and against the interests of security for people to discuss matters related to their employment! Why should not that be possible, in the same way as it is possible for the captains of industry to use the telephone in determining conditions of employment, the prices to be charged for the goods those industries produce, and so on?
By means of this legislation we are establishing in this country something that is foreign to our Australian way of life. In time of war it may be proper for governments to suggest that other means should be adopted to cope with the problems that arise, but we are not at war to-day. Mr. Deputy President, I cannot let this measure pass without voicing my protest against a proposal which, I feel, is both obnoxious and abhorrent to all right-thinking people. It will be with pleasure that I shall vote against the motion for the second reading.
– in reply - I do not think that I have ever heard in the Senate a debate in which the speakers from the Opposition side have so continuously, repeatedly and repetitiously based their arguments not only on statements which ar”. not true, but also on statements which they themselves know not to be true.
Continually, we have been told by speakers from the other side of the chamber that this is a bill to legalize telephone interception, and that it is a bill to introduce the interception of telephone conversations. The fact is, Sir, that as the law stands at present, the interception of telephonic communications is perfectly within the competence of the Government, which has every legal right to perform that function. Both previous governments in fact did so.
– The Government may do so for any purpose.
– For any purpose, without any safeguards and without limitations except that expressed in the provision in the Post and Telegraph Regulations that it is to be done with the authority of the department.
In passing, I think that Senator Wright asked whether telephone tapping could be done without the authority of the department and whether the source of power could come from outside the PostmasterGeneral’s Department. The answer is: No, it could not; but the department is run by a Minister who is a member of the Government, and the department takes its orders from that Minister and the Government. The department would, on any occasion on which the Government so required, be able to authorize the interception of any telephone message. The Opposition must know that that is so. We have just heard the last of a long series of speeches in which honorable senators opposite have said that they are not satisfied with the safeguards. Apparently, they want to return to a period when there were absolutely no safeguards whatever. I can only suggest that when all the speakers of a political party base their opposition to a bill on demonstrably untrue statements, they have not been able to find a sufficient number of facts on which to oppose the bill.
Let me state again, even if I weary the Senate, as I have been wearied by repetition, that the effect of this measure will be to place a limitation on what is at present a virtually unlimited power, and to give statutory authority, which can be seen byall, to something that previously was done bv governments as a matter of executive administration. When we hear impassioned pleas, as we heard from Senator Sheehan, to the effect that if this bill had been passed a month ago people would have been listening to the words used by waterside workers when speaking to each other on the telephone, the plain and simple answer is that if the bill had been in operation a month ago it would have been much more difficult for anybody to listen to such conversations, even if they had wanted to, which they did not.
– There was nothing to stop them from doing so a month ago. was there?
– No, and if the Opposition had its way there would be nothing to stop them from doing so a month from now, either. We have been told that if the present Opposition ever comes to office the act will be repealed. .1 should like to bring that matter to the minds of all honorable senators and to point out that if the act is repealed or allowed to lapse, we shall revert to a situation where there are no limitations and no safeguards whatsoever.
The second line of attack which hai been directed at this bill is that telephone tapping is a form of spying and that there is, for some reason which I confess is not clear to me, something inherently evil in any attempt to gather information, or to carry on the work of agents or what has been called spying work. I do not understand that attack. I had thought that resistance fighters - men and women - in the last war who were dropped, in civilian clothes, into occupied France to try to assist this country, were not evil people, although they were engaged in spying, but were in fact people who could be honoured as heroes. I had thought that the men who lived alone in our northern reaches and in the islands of the Pacific, who operated wireless sets, and whose specific purpose was to report on the movements of Japanese troops and to obtain intelligence for this country, although spying, were men who could be honoured as coast-watchers. I do not understand why this kind of generic attack upon anybody gathering information should have come from so many honorable senators opposite. I would agree that spying of the kind that Australia and other countries have had so much experience of - the situation where agents from Russia come into this country and others solely to blackmail, extort and bring pressure to bear upon citizens to force them to give information against their will - is a dirty action. If the Opposition were to regard spying ot that sort as a dirty action I should have thought that it would have been keener to see that counter-espionage measures were taken in a way that all the people in Australia could understand. The bill will facilitate efficient counter-espionage work directed towards preserving the security of this country.
In the course of this debate Senator Sheehan asked what was meant in the bill by the word “ security “. Somebody else - I think it was Senator Wright - suggested that the phrase “ prejudicial to the security of the Commonwealth “ was too wide. He likened that phrase to the phrase “ prejudicial to good conduct and discipline “, about which we heard so much during the war. That is nonsense. “ Security “ is defined in the bill as follows: - “ The security of the Commonwealth “ means the protection of the Commonwealth and the Territories of the Commonwealth from acts of espionage, sabotage or subversion, whether directed from, or intended to be committed, within the Commonwealth or not.
I am proud to sponsor in this Senate any action designed better to cope with espionage, sabotage or subversion. It has been alleged by honorable senators opposite that this legislation will lead to the establishment of a police state. What are the characteristics of a police state? They are that people may be punished or killed for their beliefs and that they may be prevented from following their occupation. Other characteristics are that people may be arrested without trial and imprisoned without limit, and that the members of their families, although innocent, may be punished with or without trial. Those are the characteristics of a police state as it flourishes in many countries to-day. It is alleged that this bill, which provides at the most that evidence may be brought before a court of law for a judicial authority to act upon, has some relation to the complete lawlessness that occurs in a police state. I can only suggest that honorable senators opposite who know the characteristics of a police state spoke with tongue in cheek when they said that this legislation could lead to the establishment of a police state in this country.
Some honorable senators opposite alleged that certain Ministers, including the Prime Minister (Mr. Menzies), had given untruthful answers to questions about tapping of telephones. Ministers in another place were frequently asked whether the telephones of members of Parliament had been tapped. They answered that such telephones had not been tapped, and, in fact, they have not been tapped.
I move for a moment to some aspects of the debate that appear to me to be in the realm of common sense. Senator McManus pointed out that two armed camps exist in the world at present. He did not point out, as he might have done, that on no less than three occasions in the last seven or eight years countries in the Western world have been threatened in so many words with atomic bombardment if they did not do as they were told. He might have pointed out to us that not only in this country but also in every other country Russian spy rings have been discovered and broken up, their members being sent back to Russia. Undoubtedly those rings have been started up again with new personnel. Surely, in view of the present state of the world, it is necessary to gather as much information as possible not of what the enemy has done to us, as was suggested by Senator Sheehan, but of what the enemy may be preparing to do to us. Armed with that information we could hope to take some remedial action. It is ridiculous to suggest that the facilities provided in this bill will enable us to gather fill the information we need with regard to the intentions of a potential enemy, but the bill will make the task of communication by the enemies of this country more difficult than it would be if no power existed to intercept telephonic communications. The report of the committee of Privy Councillors, which investigated this subject in the United Kingdom - one of those police states.I suppose, to which the Opposition referred when it said that this kind of thing happened only in a police state - includes a minority report by Mr. Gordon Walker, who the Leader of the Opposition told us was the Labour member on the committee. Mr. Gordon Walker objected to the interception of telephonic communications for police or customs purposes, but he said -
A distinction must in my view be drawn between the interception of communications for the detection of crime and for security purposes. As my colleagues pointed out, “even if some criminals do escape justice the injury to the State cannot compare with the kind of injury the Security Service seeks to prevent”. A far larger proportion of the information that the Security Service must discover is obtained by interception of communication than in the case of the Police or the Customs. A great deal of this vital information could be discovered by no other means. There cannot, therefore, in my view be the same sharp restriction of the use of the interception of communications by the Security Service as I recommend in regard to the use of this power for the detection of crime.
In that opinion he was at one with other members of the committee.
– Would you read paragraph 177?
– Certainly. Paragraph 177 reads -
Even in the field of security the strictest possible limits should be set to the use of the power to intercept communications. It should in my view be allowed for two purposes only -
direct counter-espionage and protection of high secrets of State;
the prevention of the employment of Fascists or Communists in connexion with work, the nature of which is vital to the State.
So he would go much further than your followers, Sir, who would have objected to the listening by the security service to prevent Communists being employed in the Public Service. He would have applauded that.
It is noteworthy, I think, that this report, on which the Privy Councillors were unanimous, saw the value and recorded the value of being able, under strict safeguards, to intercept telephonic communications for security purposes.
It is perhaps even more memorable that the Parliament of Great Britain - the Parliament of that mother of democracies - did not even see fit, after that report was submitted, to place any restrictions at all on the right of the Home Secretary to intercept telephonic communications. That, again, is proof that this bill is going much further in the direction of placing limitations on and difficulties in the way of the security service here than is the position in the United Kingdom.
I have outlined the reasons for the introduction of this bill, and I shall leave it to honorable senators to decide whether the state of the world does require that we should take what steps we can to protect ourselves against our enemy. We were told by the Leader of the Opposition that we were in a different position in this regard from the United Kingdom - a different geographical position, I gathered. Well, we are, but in many ways we are in a far more exposed and vulnerable geographical position than is Great Britain itself. There devolves upon us, because of our isolation, not only the responsibility of protecting ourselves but more than that, of being able to protect by all means possible those common secrets which are shared with us by the United Kingdom, and to prevent as far as we can, by any means we can employ, access to those secrets by the enemies of this country who are amongst us. I support the bill.
Question put -
That the bill be now read a second time.
The Senate divided. (The Deputy President - Senator the Hon. A. D. Reid.)
Majority . . 12
Question so resolved in the affirmative.
Bill read a second time.
Clause 1 agreed to.
This Act shall come into operation on the day on which it receives the Royal Assent.
.- I move -
At end of clause add “and shall bind the Crown “.
I should like the Minister for the Navy (Senator Gorton), who is in charge of the bill, to express his view of the aspect of this matter that I shall mention. It seems to me that there is some doubt whether the bill, as now presented, binds the Crown. As I see the position, much depends upon binding the Crown in this matter. During my speech at the second-reading stage, I directed attention to clause 5 (5.), which provides -
Subject to sub-section (2.) of this section, this section extends to a person intheservice of the Commonwealth.
There is room for doubt as to whether that provision refers to an officer of the Commonwealth as distinct from a servant, and to a Minister. I hope that the Minister will accept the view that, this point having been raised, it should be clarified in order to put the matter beyond doubt.
. -The AttorneyGeneral (Sir Garfield Barwick) has given quite an amount of consideration to the particular point raised by Senator Wright and has himself said that he is perfectly satisfied that the intention to bind the Crown is evident in the bill as it stands. Clause 5 (5.) which was mentioned by Senator Wright reads -
Subject to sub-section (2.) of this section, this section extends to a person in the service of the Commonwealth.
The legal officers of the Attorney-General’s Department have advised me that “ person “ covers all persons engaged in the service of the Crown, including Ministers. The Attorney-General stated in his secondreading speech that the sub-clause binds not only the Director-General of Security, but also the Ministers of the Crown. He points out that a person has to be authorized to do a particular thing under clause 5 of this bill. He has to be authorized to intercept, or in some way listen in on a wire for technical purposes. He could not be authorized to do that by the Crown in defiance of the statute. The Crown would have to be bound by the statutory provisions before it could permit a person to do any of the things set out in clause 5.
– I feel disposed to support the amendment. The Minister for the Navy (Senator Gorton) has said that the position is covered.I think that that is open to doubt. Senator Wright does not put it on any higher plane than that the position is open to doubt. The Minister referred to sub-clause (5.) of clause 5. I point out that the wording of that subclause is very narrow in its application. It reads -
Subject to sub-section (2.) of this section, this section extends to a person in the service of the Commonwealth. ft refers solely to clause 5. The Minister used that clause in support of his argument that the measure will bind the Crown. Does the Minister follow me?
– Sub-clause (5.) refers to the whole of clause 5.
– It refers to one clause only of the bill, namely, clause 5. Senator Wright’s amendment seeks to add the provision that the whole of the measure shall bind the Crown. I am explaining that the Minister is pointing to one particular provision - a portion of one clause in the bill - as an answer to Senator Wright, who asks that the whole legislation shall bind the Crown.
– It is the clause which allows telephones to be tapped under certain conditions, and under that clause the Crown is bound.
– There are many clauses throughout the bill which ought to be expressed to be binding on the Crown. Most acts of Parliament contain such provisions. I think it is rather unusual that that principle is not expressed in this bill.
– What are the other clauses to which you refer?
– I had no knowledge that this amendment was to be moved. I have only just seen it. At such short notice, I cannot point to one other clause where one would want to bind the Crown. If I had had notice of the amendment, I would have considered that point. At this stage, what can be the objection to carrying out the usual procedure of providing that the measure shall bind the Crown?
.- I think that the answer of the Attorney-General is that it is completely unnecessary to insert these words, because the bill, in fact, does bind the Crown, particularly in regard to clause 5.
– It is appreciated now that the relevance of this amendment lies in the Minister’s contention that sub-clause (5.) of clause 5 makes the prohibition in clause 5 applicable to every person in the service of the Crown. I mentioned the case of “ Perpetual Trustee Company Limited versus the Commonwealth of Australia In that case the Privy Council considered the expression “ in the service of the Crown “. The specific question related to servants as distinct from officers. I do not pretend to recall the exact interpretation which the Privy Council gave to the expression, but I think I am on safe ground in asserting that the expression “ service of the Crown “ was the subject of considerable discussion and some real doubt. That is the first point I make as to sub-clause (5.).
I am a little dismayed to hear put forward as incontrovertible one view that has been expressed upon this matter. I have only to refer, in this audience of lawyers, to the Privy Council case that I have mentioned in order to substantiate my case that a doubt does exist as to the actual interpretation of the expression “ service of the Crown “. The case in question was one in which the Crown sought to recover damages on the ground that a master can recover damages for unlawful deprivation of the services, or the loss, of a servant. It sought to recover damages for the unlawful killing, by negligence, of a police officer. The question was whether a police officer was a mere servant, or came within that chapter of the law. The recital of the Privy Council judgment, differing as it did from the findings of Chief Justice Dixon, who went into the historical development of the service of the Crown, ought to bring from the advisers of the Minister a prompt reply to the effect that the interpretation of the expression “ service of the Crown “ is clouded with doubt.
The second point is that sub-clause (5.) is subject to sub-clause (2.) of clause 5. Sub-clause (2.) provides that the prohibition which we are all concerned to maintain shall not apply to the interception of a communication in pursuance of a warrant. Sub-clause (5.) is subject to subclause (2.), which excludes the application of sub-clause (1.) to a case of interception of a communication in pursuance of a warrant. That is the case where the Crown must be bound.
– Will you say that last bit again, so that I can follow you?
– Yes. I am most obliged to have an indication of the interest of the Minister. Sub-clause (5.) provides that this clause extends to an officer in the service of the Commonwealth, subject to the operation of sub-clause (2.). Sub-clause (2.) provides that the prohibition against telephone tapping in sub-clause (1.) - which is the essential part of the clause - shall not apply in relation to the interception of a communication in pursuance of a warrant. Interception in pursuance of a warrant is the most likely field of complaint so far as servants of the Crown are concerned. The true construction, I take it, is that the prohibition fails to apply only where the interception is in pursuance of a valid warrant. It may be, therefore, that sub-clause (2.) does not exclude the application of sub-clause (1.) in a case where the interception takes place in pursuance of a defective warrant. I am most concerned to gather in the ambit of sub-clause (1 .) all agencies of the Crown who purport to intercept pursuant to a defective warrant.
– “ Warrant “ in subclause (2.) would not mean a defective warrant.
– I think not. I have indicated that view. I want to put my view clearly so that it can be replied to with clarification. The two points that I put are the dubiousness of the expression “ service of the Crown “ and the exclusion of the operation of sub-section (1.) from the interception of a communication in pursuance of a warrant - not purporting to be in pursuance of a warrant. There may be some questions as to whether or not that requires strict compliance with a valid warrant.
– At the outset, I should like to say briefly, in a spirit of loving kindness, that it is not my practice to put forward as incontrovertible any point of view whatever, particularly a legal one. As I understand it, Senator Wright wishes to add to the end of clause 2 the words, “ and shall bind the Crown “. The clause will then read -
This Act shall come into operation on the day on which it receives the Royal Assent and shall bind the Crown.
His reason for seeking the insertion of those words is that he does not believe that under the bill as it stands a person who, having received a warrant, intercepts a telephone communication, will be liable to damages if the warrant is defective. It seems to me that we are mixed up in two lines of approach. The view of the AttorneyGeneral is that a person to whom the Crown grants a warrant can be granted that warrant only by the Crown and on conditions set forth in clauses 6 and 7 of the bill. First, the warrant can be granted only by the Crown. Secondly, the Crown is bound by the clauses of the bill in granting to a person a warrant to enable him to intercept. That, I think, is the clearest explanation that I can give of what the Attorney-General believes the law to be.
Clause agreed to.
Clause 3 agreed to.
Clause 4 (Meaning of interception).
– Sub-clause (1.) reads -
For the purposes of this Act, but subject to the next succeeding sub-section, interception of a communication passing over the telephone system consists of listening to or recording, by any means, such a communication in its passage over the telephone system without the knowledge of the person making the communication.
I am only seeking information. I have had demonstrated to me an apparatus which may be placed underneath a telephone and by the process of induction, picks up a telephone conversation which can then be relayed to a dictating machine. I have never used such an instrument but I have seen one demonstrated, and it occurred to me that it could be very useful for business people. Does this provision extend to the prohibition of such an apparatus? I point out that the person at the other end of the line may not know that the conversation is being recorded. Is an apparatus of that kind prohibited?
– AmI right in assuming that it would be all right if the person at the other end concurred in the recording? The sub-clause includes the words “without the knowledge of the person making the communication “.
– I imagine that within the terms of the clause it would be legal to use such an apparatus provided the person at the other end knew that it was being used and provided that nobody else, who did not know that the apparatus was installed, used the telephone.
Clause agreed to.
Clause 5 (Telephone communications not to be intercepted).
.-I move -
After sub-clause (1.) insert the following new sub-clause: - “(1A) Any person who commits a breach of sub-section (1.) of this section shall also be liable to an action for damages at the suit of the parson whose communication has been intercepted.”.
As I understood the debate, the whole committee joined in agreement upon the terms of sub-clause (1.), which prescribes a penalty of £500 or imprisonment for two years for persons who intercept or authorize, suffer or permit another person to intercept a communication, or who do any act or thing to enable him or another person to intercept a communication.
– Have you in mind punitive damages or compensatory damages?
– Not punitive in this instance.
– What would the measure of damages be?
– We could argue for quite a time about the measure of damages if we were on different sides before a jury.
– They would be punitive rather than compensatory.
– Not necessarily. I cite the famous case of Entic v. Carrington, which concerned merely the seizure of a few books which had no intrinsic value. The courts allow a British jury and an Australian jury a pretty wide field of judgment as to what constitutes an invasion of a person’s private rights.
Sifting suspended from 5.45 to 8 p.m.
Reports on Items.
– I lay on the table the reports of the Tariff Board on the following subjects: -
Radio and television equipment.
Transformers and induction coils.
Alternating current induction type motors.
Products of copper and other metals.
Piezo electric crystal blanks.
Oil or spirit heating lamps and parts.
Portable electric hand tools and nibbling machines.
Colours and dyes and paint boxes.
Optical lenses and other optical elements, magnifying glasses, telescopic sights for weapons, image projectors and slide viewers.
Textiles of man-made fibres.
Iron and steel hoop and strip. (Interim Report.)
Marine diesel engines exceeding 500 horsepower.
Tinned iron and steel plates and sheets.
– The purpose of my amendment is to give to a person who is injured by a breach of sub-clause (1.) a right of action for damages. I consider that the committee would do notable service to the courts of this country if it adopted this amendment. I remind my legal colleagues in the chamber that the courts have consistently complained of the fact that Parliament never gives any attention to this question, so that when Parliament makes an act unlawful the question arises as an imponderable matter of construction whether the act that is declared illegal also involves a right of private action. For this reason it is desirable that the committee should accept the amendment.
However, the chief reason why I urge the justice of the amendment is that we are concerned here to place safeguards upon the infringement of this right of private communication. If any person commits a breach of sub-clause (1.), there is nothing more just than that the person who is injured, whose confidence has been intruded upon, should have in respect of that intrusion a right of action for damages. I submit that when the Attorney-General is the person to whom authority is given to issue a warrant authorizing an interception, it is not entirely a happy position that the private individual in respect of whom an interception has been made unlawfully under sub-clause (1.) should have to depend for his satisfaction upon the Attorney-General of the day prosecuting the matter. I think it would meet the conception of justice that most of us have if that person were given a private right of action in respect of the damage that he suffers.
In support of the general theory of it, I put the situation that I am in an arm chair at home talking to my family on a matter that is confidential within the family, and a peeping tom quietly enters the front door. He listens, and then as we are shifting round, he scuttles away and we just see his fleeting shoes. We realize that it is some fellow whose very boots we have hated for twenty years. A claim for damages can follow that intrusion on property, even though the only effect of it is to wound one’s feeling of entitlement to privacy within the family circle. In circumstances like that the court would award quite heavy damages.
I shall take only a minute to state the facts of a case that was decided in 1955. A mother-in-law was in possession of a flat. Her title to it was really questionable and her daughter challenged her title to its possession. The daughter’s husband had the temerity to scale the fire-escape and break through the door. His mother-in-law doused him with a bucket of water. He made his approach and knocked her to the floor. It was only a brief scuffle. He then retired and the next-door neighbour came in and said, “ You cannot do that in England “. A London jury awarded £5,000 damages against him for invading the castle of his mother-in-law.
– It could have been his father-in-law.
– It could have been, and the same principle would apply. I remind honorable senators that it is by these institutions that the fabric of the common law has been woven. The point of my relating the facts of this case is that the act was committed against the person to whom British justice was accessible and a British jury thought that it should register its disapproval of an invasion of the individual’s right to that degree. All I am saying is that one’s right to privacy in association with property carries the right to sue for damages. The only reasons why under the present law one cannot sue automatically the man who taps one’s telephone is that the property and possession of that mechanism is in the Postmaster-General. However, the same injury is done, and I submit therefore that a sound case is made out for the acceptance of this amendment.
– I am interested in the amendment moved1 by Senator Wright but I do not want to express an opinion on it at the moment; I want to ask a question in relation to it. I notice that its purport is directed to interception only, as set out in sub-clause (1.), for which a penalty of £500 or imprisonment for two years is provided. I refer to sub-clause (3.), which imposes a similar penalty for communicating information that has come to one in the course of official duty but upon which there is a prohibition as to disclosure. I suggest to Senator Wright that his amendment, if justified, should have equal application to both offences. I think he will agree that at the moment his amendment is confined to sub-clause (I.), which deals with the act of intercepting, and that it does not apply to communications. It occurs to me that the communication is the more serious offence from the viewpoint of inflicting damage. I am suggesting that the honorable senator might give consideration to that thought. I realize that vast damage can be done. One of the great dangers of telephone tapping, as I see k, is that in order to trap a spy legitimately one must necessarily intrude upon the private affairs of a number ot persons who are not suspect. I do not profess to know exactly how telephone tapping is done.
– When you speak of intruding, do you mean lawfully and properly interfering with, or unlawfully?
– Let me pose this situation: A particular individual is suspected of using a telephone for purposes prejudicial to security. A warrant is issued. lt would be a rare case in which a telephone was available for the sole use of one individual at all times. A man may have a family the members of which use the telephone in complete innocence. Their friends may use the telephone. They may discuss their private affairs. The tapper would not know when the individual with whom he was particularly concerned was going to speak, or whether he was going to speak at all. From some little that 1 know about it, and about which I may speak later, it appears that the people doing the actual tapping very frequently are concerned to record everything that goes over the line. In those circumstances, all kinds of discussions of private affairs may be recorded. Here we have, I feel, one of the greatest dangers connected with phone tapping. The difficulty would nol arise if the interception could be confined to the person who is legitimately suspect. But this cannot be done, because in many cases it would require a permanent watch on the line.
A person lawfully intercepting for a legitimate purpose under the provisions of this legislation may pick up all kinds oi information. The suspect may work in a place in which scores of other people also work. The phone in such circumstances would be used all day, and it is easy enough to visualize how damage might arise. For instance, a trade secret might be talked about. Some secret process might be discussed, and the divulging of that to a competitor could cause an enormous amount of injury. A person might intercept a telephone call between, say. two company directors at a time when they are discussing the fact that a specially high bonus is to be declared, or that there is to be a bonus issue of shares.
– You are not suggesting that these things would be involved in Senator Wright’s proposed amendment, it the interception is being done lawfully in, pursuance of the statute?
– No, but I do suggest that the use of information obtained in the course of lawful interception might cause damage.
– I ask the question merely because I am not following your argument.
– Well, that may be my fault. I am pointing out that all kinds of people talk about all kinds of things on telephones. Those conversations may be picked up incidentally while an attempt is being made to intercept the conversation of a particular individual. I suggest that !f certain types of information that are picked up are used infinite harm may be caused .to innocent individuals in matters not connected with security at all. At the moment I am in the process of giving some instances. I have mentioned two. I have referred to the communication of trade secrets or discussions of trade dealings, from which an enterprising interceptor could make a huge profit, to the detriment of other persons who do not have such information. He could anticipate a market.
A telephone tapper might hear communications - and I am not suggesting that damages could be recovered in this instance - between an owner and a trainer concerning the efforts a certain horse would make in a particular race. This might enable a person to steal the market. There is another situation which is not uncommon. The interception of a telephone conversation might lead to knowledge of an assignation and ultimately to divorce proceedings, with damages and costs awarded against the co-respondent. One can visualize all kinds of situations that might arise and which might be precipitated by somebody unlawfully intercepting or unlawfully disclosing. I discount the last two instances that I have mentioned, but I believe I have said enough with regard to the other instances to indicate that real damage can be caused. I would like to know whether, in the light of what I have said, Senator Wright would be disposed to adapt his amendment to cover both interception and disclosure.
.- I simply indicate at the moment that 1 am prepared to accept that viewpoint, and 1 foreshadow a further amendment - to insert, after sub-clause (3.), a new sub-clause (3a.) in the following terms -
Any person who commits a breach of subsection (3.) of this section shall also be liable to an action for damages at the suit of the person whose communication has been intercepted.
– Senator Wright has posed a difficult question, but one which we may be able to solve, after discussion and argument, to the satisfaction of all concerned. I agree with the honorable senator’s preliminary observations in regard to damages arising out of a breach of a statutory duty, a failure to observe the conditions or requirements of a statute. It is very often difficult for a court actually to determine whether the legislature intended damages to flow from a tortious breach. There is no indication in this measure of an intention by the legislature to provide that damages may be obtained for a breach of a duty, or a neglect of a duty in relation to these two subclauses. This does not mean, of course - and this is the point which I rose to make - that damages are not obtainable in certain circumstances. I do not intend to go into the law of tort whereby damages are available to a person who is damaged because of a breach of a statutory duty, but the provisions covering cases where there is no specific definition in a particular statute are fairly well defined.
Now let us have a look at the amendment proposed by Senator Wright. I interrupted the honorable senator when he was first postulating his amendment. It is rather an interesting proposition and a very important one, and I think we should give careful consideration to it. The amendment is to the effect that any person who commits a breach of the sub-clause shall be liable to an action for damages at the suit of a person whose communication has been intercepted. With great respect to Senator Wright’s very profound legal knowledge. T suggest that that amendment imposes an absolute liability in damage for breach.
– With damages to be proved, though, Senator, and established, surely.
– I would not agree with that, either. There is already a common law right for damage.
– For invasion of privacy?
– With respect to certain breaches of this statute. If you want to depart from that principle - and I suggest that this proposed amendment departs from it to a very great extent - then it appears to me that the wording of this amendment gives a person an absolute right in damage for any breach.
– To what extent could that go, unless he could prove damage?
– The legislature, I suggest, would follow a principle that I happened to turn up a short while ago in “Clerk and Lindsell on Torts”. I might quote this passage, because the authors put the position much more clearly than I can. It appears on page 35 of the 7th edition, and it reads as follows: - “ If an Act of Parliament declares that a man shall be liable for the damage occasioned by a particular state of circumstances, F know of no reason why a man should not be liable for the damage occasioned by that state of circumstances, whether the state of circumstances is brought about by the act of man or by the act of God. There is nothing impossible in that which on such an hypothesis he … is by the statute ordered to do, namely, to be liable for the damages.”
I could imagine instances in which a much more modified amendment of the statute would relate the damages to the breach. That is to say, the damage must be in some way within the mischief, as it is sometimes called. I suggest that Senator Wright’s amendment goes much further than that.
– Give us an instance of what you have in mind when you say that you could imagine instances.
– I shall finish my argument first. I could imagine a lot of ways in which damages could be obtained in circumstances that would be embarrassing to all concerned. For example, suppose a well-known Communist saboteur is engaged in an act of subversion and that a warrant is obtained for the interception of a communication. . Suppose the warrant has a technical defect in it. Let us assume that in pursuance of that warrant a telephonic communication is intercepted and that an arrest is made - all because of an interception arising out of a technical irregularity in the warrant. I suggest that Senator Wright’s amendment would cover a case like that, so that the person arrested could in fact claim damages for a breach of the statute.
– You are assuming that the arrest is lawful and that he is a Communist subversive agent?
– Yes, I am, but I am not suggesting that the damages flow from his arrest. I do not want to mislead anybody in this respect. The damages flow from the wrongful interception, due to a defect in the warrant.
– Would not the honorable senator agree that in that case there would be enormous difficulty in proving damage?
– If the statute says that he is entitled to damages the court can only say that the legislature intended damages to be recoverable. I am arguing now not on a question of law but on the merits. 1 am not saying that all circumstances do not warrant damages, but I do not think that in most circumstances that person should be entitled to claim damages, even nominal damages. If the statute says that damages must flow from any breach, then damages must flow.
– The court would give him a farthing.
– Very well. He would have ventilated a grievance. He would have brought the security service into it and, in effect, he would have got out of it more than a substantial award of damages. He would have uncovered quite a lot of information that might be of great benefit to him, merely because he was fighting an action.
That is a set of circumstances which could flow, I suggest, from the absolute right which Senator Wright’s amendment postulates. I can easily imagine some other type of amendment which would not give an absolute right, and I can imagine that the statute does give a right to damages where damage actually has been caused, either from the negligent performance of the statutory duty or a wilful disobedience of its tenets. I shall leave the matter there for the moment, because I should like to hear Senator Wright’s reply to the issues I have raised. Briefly, I say that the amendment gives an absolute right and that that would be most undesirable in many instances.
– At this stage I should like to express the opinion of the Government on the proposed amendment. As the bill stands, it provides that a person shall not intercept or authorize anybody else to intercept a communication, except under certain specified conditions. It also provides that if a person intercepts or authorizes somebody else to intercept other than in accordance with those conditions, that person will be liable to a fine of £500 or to imprisonment for two years. The imposition of the fine or the term of im.prisonment depends on the Crown bringing the action either summarily or in some other way. But of course, in practical terms, if an unlawful interception did take place and the person concerned found out about it - which is at the basis of Senator Wright’s amendment, too - there could be no doubt but that he would ventilate his grievance and that he would have it ventilated for him in the Houses of Parliament. It would be most difficult for any government not to punish a person who intercepted except under the conditions laid down.
The proposal is not only that a man who intercepts except under the prescribed conditions should be liable to punishment by the Crown, but also that he should be liable to a suit for damages being brought against him by a private individual. Let us look at the conditions under which he is allowed to intercept a telephone conversation. He is allowed to intercept, for instance, if he is an employee of the Postmaster-General’s Department, provided that he intercepts in the course of the installation of a telephone line, or of any apparatus or equipment, or the operation or maintenance of the telephone system. If there was an employee of the Postmaster-General’s Department who was carrying out an installation of that kind, and if the person on whose telephone he was carrying out the installation believed that the employee was going beyond what was required for the installation concerned and was in fact listening when he did not need to do so, that individual could bring a suit for damages against the employee subject to the acceptance of Senator Wright’s amendment. The employee would have to prove that he was not listening when he was carrying out the agreed duties which he is at the present time empowered to carry out.
The Crown would know whether or not he was carrying out his duties, because it would know whether he had been sent to do such work and how long it should take. Because of that, the Crown would know whether he should be fined or imprisoned, but a private individual would not know and could bring that man to court and attempt to prove that he was overstepping the bounds. That applies also, of course, to the tracing of the origin of a telephone call. But let us look at clause 5 (2.) (b), which provides that a man may intercept provided that he uses a warrant issued by the Attorney-General, lt would be quite possible for a warrant to be issued on the Attorney-General being convinced that the telephone in question was being used for subversive purposes or was likely to be used for such purposes. Pursuant to the warrant, an interception could take place.
There might be some legal, technical deficiency in the warrant, not in regard to the grounds on which the interception was to take place, but purely related to the issue of the warrant, which vitiated its force. In that case, even though the person whose telephone was being intercepted was, to use Senator Vincent’s words, a known and admitted Communist saboteur, he could still bring an action for damages. Whether he would obtain damages in a court as a result of his action is a different matter. I should say that almost certainly he would not. But if he were a person of the type of which we are speaking he would not be intent solely on obtaining damages. His object in bringing his action would be, if possible, to expose some officer or some aspect of the work of the security service, or to indulge in Communist propaganda in some form or other. For those reasons, among others, the Government is not disposed to accept the amendment. In particular it is not so disposed because any person who suffers any provable damage as a result of interception and communication of interception, or who is defamed1 as a result of his telephone being listened to and what is heard being spread around the country, already has an action for damages in the ordinary course of law. The amendment is not designed to secure damages through an ordinary court of law for somebody who has been hurt, lt is designed to secure damages where, for some technical reason perhaps, a telephone conversation has been intercepted without the proper wording being on the warrant.
– Will the Minister give me information in respect of two matters? In a prosecution under sub-clause (1.) of clause 5 does the onus of proving compliance with sub-clause (2.) rest on the defendant? Sub-clause (1.) does not apply in certain specific cases. My tentative view is that the onus would rest on the defendant to show that he came within the cases mentioned in sub-clause (2.). I ask the Minister to confirm that on a prosecution the onus would rest on the defendant to prove that he had a warrant or that he was a telephone officer carrying out duties outlined in sub-clause (2.).
In order to advance my argument later I should like to know also whether it is competent for any citizen to institute proceedings under sub-clause (1.) without the leave of the Attorney-General. May a criminal proceeding be instituted under federal law by a private person to enforce the penal sanctions of sub-clause (1.)?
– Taking Senator Wright’s last query first - whether an individual may launch a prosecution under sub-clause (1.) - the answer is, “ No “.
Senator Wright also asked, whether a person prosecuted for interception would have to prove that he carried out that interception with proper authority. The answer is that the onus of proof would be on the defendant. It will be remembered that the prosecution is launched by the Crown on all the facts possessed by the Crown.
.- I rise to submit my argument upon those premises. The information supplied by the Minister shows that the enforcement of sub-clause (1.) lies entirely in the hands of the Attorney-General. Therefore the person whose telephone conversation has been intercepted is exposed to risk of real injury. When that injury is done by reason of a warrant invalidly issued or issued because of non-compliance with some statutory condition, thus making the warrant invalid, the aggrieved person has no remedy in law. I hope that we have not reached such a stage of degradation that a man can be the victim of an interception pursuant to an invalid warrant. It would be deplorable that anybody should be denied a remedy at law just because the invalidity arose in the department of the person who has the sole power to prosecuate the offender. 1 completely refute the Minister’s contention that an action for damages would expose the security service to scrutiny in a court of law. If sub-clause (1.) means what it says it will be enforced without fear or favour against the malefactor, and any person who procures a warrant in circumstances that make it invalid and subsequently relies on sub-clause (2.) as his defence must always bring the security service into court. If these two subclauses are worth anything the entire process surrounding the issue of a warrant must be investigated in court. I will never subscribe to the proposition that the security service shall not be answerable to a court of law. The officials of the security service must be answerable to a court if this statutory prohibition means anything. I am amazed that the Government is attempting to provide such an official nucleus of immunity notwithstanding the claim made by the Minister in his secondreading speech - to which I subscribe - that the whole purpose of this bill is to prohibit with legal sanctions interception contrary to the provisions of the statute.
– Will the Minister inform me what remedy, if any, is available at present to a man who is unlawfully arrested?
– The remedy for a man who is unlawfully arrested is to bring an action for unlawful arrest.
– Has he that right under existing common law?
– This bill does not affect the point raised by Senator McCallum.
– A person cannot be arrested under this bill.
– No punishment can flow as a direct consequence of this bill. In fact, it is extremely difficult for any ordinary man of common sense to see how damage can be suffered by interception of a telephone conversation when the matter intercepted is not communicated to anybody. What damage is suffered? It is extremely difficult, I think, to decide what amount of damage a man suffers when his telephone conversation is intercepted, and it is, in my opinion, quite wrong, merely on the basis of some technical invalidity, which was referred to by Senator Wright - a Communist whose conversation has been heard but not publicly disseminated in the newspaper - to bring an action for damages against the Commonwealth merely on the ground that a subversive conversation has been overheard
– Well, that would be the result.
– I think there is one thing that has so far been overlooked by the Minister, and that is that the person who may intercept and may disclose, need not be officers of the Postmaster-General’s Department or the security service. In other words, the interceptions and the disclosure we are talking about are not confined to interception and disclosure at the instance of a postal official or even of a security official; it could be an outside tapper altogether. The honorable senator has not dealt with, that. I say it is possible for a private individual to resort to wire tapping which is so common in America. The Postmaster-General (Mr. Davidson), in answers to questions that he has been asked recently, particularly on the 18th of this month, has conceded that it could be done. So that the honorable senator’s argument is directed to one portion only and not to the whole of the case. We must have regard to private wire tappers and the aspects of their intervention when we are dealing with this question. The private wire tapper might have quite a lot of purpose to serve - private or commercial purposes.
– There is a heavy penalty provided for that offence.
– The penalty is £25 for intercepting, but nothing for communicating.
– The penalty is £500 for communicating.
– No, the Minister has heard only a half of the comment I am making. This bill is not law yet. The present law - regulation 16a - imposes a prohibition against interception without authority. The present law provides for a penalty of £25. It imposes penalties for two things, first, intercepting, and secondly, communication. Each is a separate offence and each is punishable by a penalty of a fine of £500 or two years’ imprisonment. When the Minister deals with the prohibition imposed by clause 5 (1.), he deals only with Post Office officials and security officials, and he overlooks the third possibility that there could be a private wire tapper.
– He could be a Communist spy.
– A private wire tapper could be a Communist spy or he could be an individual actuated by personal motives, such as to get evidence for divorce or something else, or to pry into trade secrets.
– Does not clause 5(1.) (a) cover the private tapper?
– It deals with that and, indeed, it is a prohibition - an absolute prohibition - against everybody.
– A penalty of £500 is provided.
– I have dealt with that. Two classes of people - certain Post Office officials and security officials - are taken out of the complete prohibition but the prohibition stands against everyone else in the world, including the private wire tapper.
– You are not arguing, are you, that the private wire tapper who is convicted and fined or imprisoned should not also be the subject of a civil action?
– Indeed, I am suggesting he could be so subject.
– Does the Minister say that already he can be so subject?
– I am putting as my argument that a private wire tapper, actuated by personal or private motives, may tap a line and pick up a business secret which he could turn to his own vast advantage and to the detriment of the subscriber. A person convicted of this offence is subject to a fine of £500 or imprisonment for two years. But surely the person whose phone has been tapped and whose business has been adversely affected is entitledto recover damages from the wrongdoer.
-He has the right already, senator.
.- I just want to ask the Minister whether he confirms the statement he made a moment ago by interjection. Can a private wire tapper be sued for damages if he commits a breach of Clause 5 (1.) of this bill in the absence of the amendment that I am proposing.
-The answer provided to me, Sir, is: Yes, he can be, provided the person suffers damage.
– Well, Mr. Temporary Chairman, we have got that!
-That, I am told, is the existing state of the law.
-I wish I could put complete confidence in it as an opinion of law, but I am accepting the Minister’s statement that that is the Government’s view of the bill. Now I ask him to adjourn this matter and take legal advice having regard to such cases asWard v. British Oak Insurance Co. - 1935, 2 K.B.- concerning a breach of a compulsory insurance provision. The driver of a motor vehicle, ordered to be compulsorily insured was insolvent and the court held that a breach of the statute was remedial in damages. Consider, too, the Hursey case in the High Court relating to a decision on section 44 (2.) of the Stevedoring Industry Act. - whether a boycott interfering with the private right of an individual did not give rise to an action for damages.
If the Minister is satisfied, after that legal examination, that his view put to the committee quite deliberately in answer to my question is correct, what possible reason is there for resisting an amendment which would make it clear, because the very purpose of my amendment is to write into the bill this very right?
The only other thing thatI add is this: What damage does a person suffer from interference with his private wire leading to diversion, or betrayal of a confidence communicated under sub-clause (3.). Suppose a letter that is my property comes through the post and somebody unlawfully opens it. He commits trespass because a letter is physical property and the common law certainly gives all the protection in respect of trespass action. The telephone is a different and modern mechanism for communication, but exactly the same injury is done whether it be a betrayal of a confidential letter or of a telephonic communication. No sensible distinction can be drawn.
It may be necessary to raise this matter again on the motion for the third-reading if the Government, apparently for no reason whatever, resists the insertion in the bill of a provision which would make it quite clear thatthe Minister’s assertion is correct in law, especially when, without the inclusion of that provision, the matter will be very much open to doubt.
– The view of the law that I put before the committee is that held by the Attorney-General’s Department and by the Attorney-General. With great respect to Senator Wright, it is the view of the law which I will ask the committee to accept. The view, of course, is that anybody who suffers damage is able to take action to be reimbursed for the damage that he can prove he has suffered. It is not desired to make an amendment which would give an automatic right to sue for damages as the result of an interception.
Question put -
That the words proposed to be inserted (Senator Wright’s amendment) be inserted.
The committee divided. (The Temporary Chairman - Senator Anderson.)
Majority . . 7
Question so resolved in the negative.
– I refer to subclause (3) and invite the Minister to say whether that sub-clause has been devised having regard to the case of a barrister in Great Britain, a man named Marrinan, who was connected with Billy Hill. The Home Secretary having gained information at the instance of the police, he passed that information on to the chairman of the Bar Council, with the result that Marrinan was disbarred and ultimately was prosecuted and convicted. I take it that the sub-clause is wide enough to prevent anything like that from occurring. No matter what the crime is, if it is not connected with sabotage, espionage or subversion, the security officers, I take it, will not be free to pass on information to the police or to other bodies interested in the conduct of individuals? Is there that complete prohibition?
– Does the Minister feel that he is in a position to say whether during the past ten years or so any prosecutions have been instituted as a result of telephone tapping? Would he care to say whether it is likely in the future, having regard to the exclusive power now vested in security officers, that more prosecutions will be launched?
– There is a prohibition of information being passed on to the police or, indeed, to any bodies other than those definitely specified in the clause. I do not know whether the honorable senator, in referring to prosecutions, was referring to prosecutions brought by the police or to prosecutions at the instance of the security service.
– At the instance of security.
– I would not be prepared to indicate whether there were any such prosecutions, or, if there were any, how many there were. I point that that the institution of a prosecution would be but a minor result of gathering information of this kind.
Clause agreed to.
Clause 6 (Issue of warrants by AttorneyGeneral).
.- First, I ask the Minister whether the view is held, and can be imparted with confidence to the Parliament, that non-compliance with sub-clause (2.) invalidates the warrant. One is inclined to read this provision as stating deliberate requirements of Parliament. T laid great emphasis on it in my second-reading speech and it has been a matter of inducement to me in forming my conclusion on the propriety of this provision. The statute requires that a request for a warrant shall include a description of the service, including the name, address and occupation of the subscriber, and the number of the service, and shall specify the facts and other grounds upon which the Director-General of Security suspects a person, ls it the view of the Government’s advisers that non-compliance with these requirements invalidates the warrant?
– I direct the Minister’s attention to the very wide provisions of sub-clause (1.) To select only one case, the Attorney-General may, by warrant on receipt of a request, issue a warrant if he is satisfied that -
That is one of the situations that may arise. There is a great deal of speculation and suspicion in relation to it, as well as questions of probability. I show, by just reading the words, upon how relatively thin a base a warrant may be issued. I agree with Senator Wright’s statement that there is an obligation under the next sub-clause for the Director-General of Security to specify all the facts and grounds that stir up his suspicion and give him belief of likelihood and so on.
The United Kingdom Home Office, in laying down the principles upon which it grants warrants, as appears on page 18 of the Privy Councillors’ report, requires that-
That is not one of the conditions attached to the issue of a warrant by the AttorneyGeneral of this country.
– Would you also include in your remarks the Privy Councillors’ further observations on this question?
– I am coming to that. There is another requirement. What 1 have read is the No. 1 requirement. The matter must be of major subversive or espionage activity and not of insignificance.
– “ Or … “
– There is no question of “ or “ at this stage. Let the honorable senator keep his “ or “ out of it. 1 come to the next principle -
Normal methods of investigation must have been tried and failed, or must, from the nature of things, be unlikely to succeed if tried.
– Where does this appear?
– I am referring to paragraph 64. That deals with warrants issued by the Home Office in favour of the police. If the Minister now refers to paragraph 68, which appears over the page, he will read -
The same provision applies to the Security Service as to the Customs and Police about the failure of normal means of detection.
Because telephonic interception necessarily brings, the interceptor into contact with many innocent conversations and innocent people, why were those two safeguards, so freely adopted by the Home Office of
Ihe United Kingdom in the light of hundreds of years of experience, not considered, adopted, and included as conditions precedent to the issue of a warrant by the Attorney-General of this country? Would it not be reasonable to require that there must be a major subversive or espionage activity? A minor matter of subversion could consist of some damage to a defence installation by irresponsible youths. That could be regarded as subversive to the security of the Commonwealth. I appreciate that great oaks from little acorns grow and that a lead1 to a major matter might arise from a minor matter. But with all those considerations before them, the authorities of the United Kingdom will not grant a warrant for telephonic interception or for interception of anything for purposes of security, unless it is established to their satisfaction that there is a major subversive or espionage activity.
Secondly, what is wrong with a requirement that all normal means that would be directed against a suspected offender alone be exhausted first before this medium, which is capable of such expansion and of covering so many people, is invoked? Were those two principles of the Home Office under consideration at the time when this bill was drafted? Were they deliberately rejected? Why were they rejected?
– I am not in a position to say whether these particular principles were under consideration at the time when the bill was drafted, although the bill clearly contains internal evidence that the recommendations, in general, of these Privy Councillors were under consideration, because almost all of the recommendations made in their report are embodied in the bill. I would say that there was, in fact, little difference between the requirements under the bill and the requirements set out in this report of the Privy Councillors. The principles enunciated in this booklet and read by Senator McKenna are not principles which have been adopted by the Parliament of the United Kingdom. They are principles to be followed by the Home Office, completely at the discretion of the Home Office.
– But invariably followed.
– I suggest that it is entirely within the province of the Home Office to decide whether or not an activity is major or minor.
– Surely you are not imputing such want of good faith as would lead to a departure from the principles contained in this document?
– I am not imputing any want of good faith. I am suggesting that such provisions are not set out in a statute and that it is within the competence of the Home Office to decide whether or not a threat is major. I think that that is quite self-evident. I would not for a moment suggest that the Home Office would take action if somebdy were attacking a peer. But I suggest that there is in all these things an area within which there may be a difference of opinion as to whether something is major or is not major, and1 in this matter the Home Office decides the matter in its discretion.
– That applies particularly if it is not governed by statute.
– Quite so. The fact is that the Home Office itself decides whether a subversive act that is likely to harm the national security is major or not. Under this bill the Attorney-General has to decide whether a person is engaged in or is suspected of being engaged in activities prejudicial to the security of the Commonwealth. This means activities prejudicial to the protection of the Commonwealth - a major matter - and the Territories of the Commonwealth from acts of espionage, sabotage or subversion, whether directed from or intended to be committed within the Commonwealth or not.
– Subversion is capable of the widest meaning.
– As the Leader of the Opposition says, subversion is capable of wide interpretation, both in this bill and in the principles followed by the Home Office. I point out also that the report of the Privy Councillors does draw a distinction between what is required for police and customs purposes - where the object mainly is to obtain a conviction - and what is required for security purposes - where the object is rather the securing of information. Paragraph 68 of the Privy Councillor’s report reads - . . But less stress is laid on the need to secure convictions, since the Security Service is primarily concerned with safeguarding the State and keeping itself informed about dangers to its security. Besides securing convictions, the Security Service has the duty to keep up to date its information covering espionage and subversion and to inform Ministers and Departments of Stale about security matters that concern them.
Another point raised by the Leader of the Opposition was that, under the principles followed by the Home Office there was some need to be sure that other methods of securing information had been tried and had failed, but I think it is fairly clear that there are no methods of securing records of telephonic communications other than the tapping of telephone lines. There may be other methods by which information can be obtained, but as to the carrying of a message from A to B, or from Mr. A to Mr. B, there does not seem to be much room for alternative methods of securing a record of the conversation.
– I remind the Minister that he has omitted to answer the question that I asked him. Will the Minister be good enough to intimate whether it is the Government’s view that non-compliance with clause 6 (2.) invalidates a warrant?
– I am informed that complete non-compliance with what is required in sub-clause (2.) would invalidate the warrant. However, what is required in that sub-clause is the name, address and occupation of the subscriber, if any, and the number, if any, allotted to the service by the department. If a number could not be ascertained or for some other reason there was some partial non-compliance with the sub-clause, and nevertheless the Attorney-General was satisfied, I am informed that the warrant would not be invalidated.
.- Before passing to my amendment I wish to observe that if on further consideration these interpretations of the clauses are proved to have been ill founded, I trust that we will have an assurance from the Minister that appropriate amendments will be forthcoming properly to express and achieve’ those assurances.
– I think I sh’ould say that if Senator Wright is able to convince the Attorney-General that the AttorneyGeneral’s interpretation of the law is wrong, he would be prepared to bring in an amendment.
– Nothing further in that respect is required. However, I would not go to the Attorney-General. The High Court will settle that, not at my instance but at the appropriate time. All I want to know is that, if an individual is found not to have the protection of the assurances that have been given, then amendments such as I seek will be forthcoming.
I move on to sub-clause (4.) which reads -
A warrant . . . shall specify the period for which it is to remain in force, being a period that does not exceed six months . . .
Honorable senators will notice that a warrant under this section shall specify the period for which it is to remain in force, being a period that does not exceed six months, but it may be revoked by the AttorneyGeneral at any time before the expiration of the period so specified. I directed attention earlier to the fact that the Privy Councillors said in paragraph 75 of their report -
We recommend that warrants should no longer be valid until they are cancelled but that their validity should be for a denned period that appears on their face. Normally this should be for a period no longer than a month, and in no case should it be for a period longer than two months.
I move -
In sub-clause (4) leave out “ six months “, insert “ two months “.
The purpose of my amendment is to test the validity of the alteration that is being made by the Australian legislation, rejecting the view of the Privy Council.
– The Government does not wish to accept this amendment. I point out to the committee that the recommendations of the Privy Councillors have been accepted to a very large extent indeed in this bill, but the Parliament of the United Kingdom has accepted none of the recommendations. The recommendation that a warrant should not be valid until cancelled has been adopted in the bill. The recommendation that a warrant should have a defined time limit for which to run is adopted in the bill, though the warrant can be cancelled ‘before that time limit expires. The sole question at issue is. whether -that time should be six months or two months.
The bill also adopts the recommendation that a warrant should be cancelled by the authority by whom it was issued and that, if it is cancelled, its cancellation should be reported immediately to the AttorneyGeneral. The bill provides also that the warrants issued must specify particulars. The Attorney-General, with all the facts at his disposal and after proper consideration believes that six months would be a more workable period than two months.
– This is one amendment that I very strongly support. At the second-reading stage I directed attention to the recommendations of the Privy Councillors and urged that consideration be given to the adoption of them. The Minister has said that this recommendation was not adopted in the United Kingdom, but the practice there is entirely different from ours. The United Kingdom authorities already review every three months at least whatever warrants are outstanding.
– What is to stop the Attorney-General from reviewing them just as quickly?
– One of my complaints about the bill is that there is no obligation upon him to review the warrants issued. No machinery is provided for him to review them.
– He can still do it.
– He can, but my point is that we are establishing by statute the right to invade one of the privacies of the individual. I think it is vastly important that the people of Australia should have as much confidence as possible in the security service and in the procedures whereby it operates. The people would be given more confidence in the security service if they were assured that the officers of that service did not want the right to tap a phone for the full period of six months. The people need to be assured that some responsible officer, at a level at least as high as that of the Attorney-General, was under an obligation to review warrants, not at his pleasure, but at least every month. The only provision in the bill in that regard is in clause 11, which states that a report has to be made to the Attorney-General on whether success has been achieved with the interceptions. That report has not to be submitted monthly; as I recollect the provision, no time is specified within which the report has to be made. But, on the face of the provision, it appears quite obvious that the report would not be made until the time had run out and the warrant expired. Clause 12 provides: -
The Director-General of Security shall furnish to the Attorney-General in respect of each warrant a report in writing on the extent to which the interception of telephonic communications in pursuance of the warrant has assisted the Organization in carrying out its functions . . .
That provision plainly contemplates that a report shall be furnished. It does not specify with any particularity that the report shall be furnished at the time the warrant expires. It is all too leisurely, and I think this is a matter which is vastly important to the public relations of the security service. It is most important to this Parliament to be assured that there is regular supervision and that there is an obligation for constant review. One method of ensuring that constant review is to provide that warrants shall not have operative effect for too long. My view is that six months is far too long. There is no difficulty about renewing a warrant on a fresh request.
– You said that in England a review is made every three months?
– That is right.
– On whose authority?
– On the authority of the report of the Privy Councillors.
– Is it mandatory?
– I will read it to you. The Privy Councillors had the utmost opportunity to find out all about this practice, and at paragraph 71 of their report they said: -
Close supervision over the use of methods of interception is maintained by the Home Office. There is a quarterly review of outstanding warrants by the Permanent Under-Secretary. At this review, or earlier if the Home Office thinks that warrants have not been cancelled after a reasonable period, the authorities concerned are sent for and asked to make a case for their continuance.
There is a parliamentary authority, a parliamentary officer, a Minister of State, closely watching what goes on and calling for people to come in and account. There is no provision for review of this bill. That is one of its greatest defects. It is one of the reasons for our opposition to the measure.
– But there would be a review at the end of six months, if a new warrant were asked for.
– I am saying that six months is far too long, lt is not in accordance with the practice in the United Kingdom. And I suggest that in this country, particularly on the initiation of this practice by statute, we ought to have the safeguard written in, to the effect that the Attorney-General is required to review at frequent intervals. For that reason, because I think this is a major defect in the bill, I strongly support the amendment.
– I think the Leader of the Opposition (Senator McKenna) is labouring under a misapprehension. 1 would direct his attention to paragraph 72 of the Privy Councillors’ report, where mention is made of these reviews. The report speaks first of customs reviews, lt says -
The Customs have a regular quarterly review of nil outstanding warrants individually.
That is what the Leader of the Opposition was speaking about - individual warrants. The report goes on -
A similar review is undertaken by the Security Service every six months.
That is precisely what is proposed in the bill before us.
– But please read paragraph 74.
– Paragraph 72 continues -
Since 1956, the Metropolitan Police has instituted a weekly review.
But we can leave out the references to the police and the customs and see what is happening in England at the moment. I am asked to read paragraph 74. We find in that paragraph a recommendation, which does not in any way affect the practice described in paragraph 72, which shows that the review does in fact take place every six months. Although Senator McKenna is entirely in order in saying what he wants to be done, in fact what is contemplated in the legislation is what is being done in the United Kingdom.
– I like to get my oar in occasionally. We could talk all night about this provision.
Senator McKenna says that in his opinion the period of six months is too long. Senator Wright agrees with this. Others have expressed different views. This is the only issue before us. The fact that a recommendation made by the Privy Councillors has not been adopted by the British Government is not really relevant to this discussion.
– What authority have you for saying that it has not been adopted?
– The authority of the Minister, who has the AttorneyGeneral’s authority - and I do not think the Attorney-General is likely to be misinformed on such matters. Senator McKenna has advocated a shorter period. The honorable senator has done a great many things in his time and he is a very able man, but he has never been a director-general of security and he has never had the responsibility of ensuring that the security service works. I think the only question for us to consider is whether the AttorneyGeneral can assure us, through his representative here, that he believes a period of six months to be fair and reasonable in the light of information that has been obtained regarding the administration of the security service over the last ten years. That is the question that has to be answered.
I have no fixed views on the question whether six months is too long or two months is too short, but I feel that the only person who can give an answer that cannot be controverted is the Attorney-General. After all, this is a security service that we are talking about. It is a service that works in secret. None of us knows what happens in that service, and thank goodness we do not know. It would not be much of a security service if we did know. If we could form a proper view of whether six months was too long or two months too short we would not have much of a security service. So I invite the Minister to say whether the Attorney-General does insist that six months is an appropriate period, in the light of experience of administration of the security service.
– I have indicated that already.
– The Minister has suggested that I may be labouring under a misapprehension about the English procedure. I was under no such misapprehension. What I said was that the parliamentary authority in that country reviewed at least quarterly, and, in many cases, more often. The honorable senator then referred me to the practice in England of the security service itself. He said -that the security service does review every six months. The point I make is that the review should be made far more frequently. There ought to be a review, I suggest, every month, by the Attorney-General, the parliamentary authority in this country.
– The AttorneyGeneral can do that.
– He can do it, but 1 want an obligation cast upon him to do it. The absence of that obligation from the bill is one of the many grounds of our objection to it. I want the Minister to know that I am under no misapprehension about the position. In the United Kingdom, the parliamentary authority, the Permanent Under-Secretary, personally reviews the warrants every three months. That is the practice.
– Not in security.
– Security itself reviews every six months. Why should it bother to do otherwise, when it has the warrants? The security people let somebody else stop them, and that is the very thing that would be corrected by a parliamentary review.
– But this bill will make provision for the security service, under its head, to review every six months, which is what the honorable senator is saying.
– Security must have a look at the position every six months. I want it confined. Even if the Government only applied the United Kingdom procedure, whereby the AttorneyGeneral would be obliged to review every three months, or even more often than that, it would be an improvement.
– The bill provides for mandatory review every six months.
– That is far too long.
– And discretionary review between times, the same as in England.
– It is far too long.
– I think that the amendment should be supported, because, if it were accepted, it would provide an opportunity for the Attorney-General or the Government to be in closer contact with what was happening in the security service. I am interested mainly in possible espionage in Australia. I think that the Government must be in close and personal touch with what is going on. By making it mandatory for the Attorney-General to review the position every two months, he would be kept in very close contact with events. I think that the Minister in charge of the security service should be in the closest contact with activities related to the prevention of espionage. I think it is reasonable that a review should take place every two months, and I am prepared to support the amendment proposed by Senator Wright.
– The amendment would require the issuance of a new warrant every two months. It would require that no warrant could be issued for a period longer than two months. As the bill is printed, a warrant may be issued for any period up to six months. It may be issued for two months or for four months, but it cannot be issued for more than six months. As the proposed amendment would make it impossible to issue a warrant for more than two months, all that I can do is to indicate to the committee that the Attorney-General (Sir Garfield Barwick), after advice, regards six months as the proper limit for which he could issue a warrant.
.- I desire to support the amendment. I believe that it is fair and reasonable and in the interests of the community generally. It is an amendment that I think the Government might well accept as an indication that it has regard to the feelings of people in the community who are prepared to support this bill on general grounds but do not want it to go any farther than it has to.
I voted against the previous amendment in the belief that it might impair the efficiency of the work of the security service. I think that the amendment that we are now considering would aid the security service in its work. Its adoption would mean that at the end of two months there would be a report on what had happened, and if it were considered that telephone tapping in a particular case should be continued, the security service would be fortified by the knowledge that the chief authority of the Government had declared that in his opinion it could continue.
I believe, furthermore, that there is a necessity for a regular review by the Government representative - the AttorneyGeneral - of events in regard to telephone tapping. I said earlier to-day that I would not support the issuing of warrants by a judge because I felt that a person responsible to Parliament, such as the AttorneyGeneral, should issue them. If the Attorney-General is to be responsible to Parliament - and he takes up a heavy responsibility in regard to this matter - I think that nothing but good could come from a regular review of the position. My own view, therefore, is that such a review would be beneficial to the security service, and beneficial to the Attorney-General because it would keep him in reasonably close touch with what was happening. In addition, I feel that it would be approved by the members of the community generally because they would think, “ Well, if the position is being examined every two months and a fresh decision made, that indicates that it is not being allowed to run wild and that people are not being given blank cheques for five or six months to do this kind of thing”.
For all those reasons, I think that the amendment is an excellent one and that its adoption would be good for all concerned. Unfortunately, the Government apparently has decided not to accept it, but I think that it could very well do so as an indication that it is prepared to consider reasonable views as expressed by members of this House.
– Could the Minister make some observation on the question I put to him in relation to this matter?
.- While the Minister is thinking about Senator Vincent’s question, I would like a reconsideration of his point of view and his statements to the committee on this matter. I think he has, whether intentionally or inadvertently, led the committee to believe that the practice in England provides for a six-monthly review. I invite him to read the relevant parts of the report of the committee of Privy Councillors appointed to inquire into the interception of communications in the United Kingdom. I am surprised that he has abstained from doing so, and I take the opportunity to remedy the deficiency. Paragraph 72 of the report states -
The Customs have a regular quarterly review of all outstanding warrants individually. A similar review is undertaken by the Security Service every six months. Since 19S6 the Metropolitan Police have instituted a weekly review every Monday. All these authorities cancel warrants when they are considered to be of no further use without waiting for their own regular review of outstanding warrants.
Paragraph 74 states -
We feel that the outstanding warrants should be reviewed more frequently. We therefore recommend that there should be a regular review not less than once a month by the Home Office and by every authority that is granted a warrant to intercept. This review should be not only of the numbers of warrants outstanding, but of each particular warrant.
Paragraph 75 reads as follows: -
We recommend that warrants should no longer be valid until they are cancelled, but that their validity should be for a defined period that appears on their face. Normally this should be for a period no longer than a month and in no case should it be for a period longer than two months. If an extension of the validity of the warrant is desired, the reasons for this should be sent to the Home Office for their consideration before any extension is approved.
I should have felt much more satisfied had the Minister accepted the invitation to read the relevant parts of the report, because they show quite clearly that any understanding that the prevailing practice in England provides for a six-monthly review is wholly erroneous.
We have the solemn statement from the Minister in charge of the bill that the report of the Privy Council has not been accepted by the Parliament of Great Britain. I question that statement. That statement should be clarified before we give any further consideration to this matter.
This report of the committee of Privy Councillors was presented to Parliament by the Prime Minister of Great Britain by command of Her Majesty in October, 1957. I should be surprised if the United Kingdom Parliament indicated that it proposed to depart from the recommendations contained in the report. I should be surprised if the Government of the United Kingdom did not indicate to the Parliament its endorsement of the report. I ask the Minister to say whether I am right or whether his statement is correct. I think we should know whether the Prime Minister of Great Britain submitted this report to Parliament and whether any indication was given by his Government that the report would be disregarded in any respect. Everything that has been said by our Attorney-General (Sir Garfield Barwick) with regard to this report has implied that the United Kingdom Government felt obliged to comply with the recommendations contained in the report. The report is a thoughtful, stimulating and encouraging document. It is the product of such dignitaries as Lord Monckton, Lord Justice Birkett and Mr. Gordon Walker. All the indications are that ever since October, 1957, the United Kingdom Government has felt obliged to accept the recommendations contained in that report. I should like to know from the Minister whether in fact this report has been accepted by the Parliament of the United Kingdom.
– I refute completely Senator Wright’s allegation that I misled honorable senators when I read from the report of the Privy Councillors. I read from paragraph 72 of the report which dealt with the practice obtaining in England at the time this report was printed. Senator Wright asked me to read the recommendations of that committee. They were not relevant to the reply that I was then making to Senator McKenna, which related to the practice, not the recommendations.
With regard to the second point raised by Senator Wright, I can only say that the report of the committee in question has not been adopted by the Parliament of Great Britain. There is no statutory enactment, and a statutory enactment is the only way by which a parliament adopts something and puts it into law. That is what this Parliament is doing now.
Question put -
That the words proposed to be left out (Senator Wright’s amendment) be left out.
The committee divided. (The Temporary Chairman - Senator Anderson.)
Question so resolved in the negative.
– There is one other matter to which I wish to advert. It arises out of sub-clause (3.), which states -
Where the Director-General of Security makes a request, otherwise than in writing, for the issue of a warrant in respect of a telephone service, he shall forthwith forward to the Attorney-General a request in writing in respect of the telephone service.
A number of honorable senators on this side, including myself, advocated that because that request contained most important matters, it should be verified either by affidavit or by statutory declaration. The answer was given by the Minister at the second-reading stage that the DirectorGeneral of Security was the responsible officer. I agree with that. But I do point out that continual recourse to the making of these requests must breed a degree of indifference. One becomes casual about it. The procedure of having to make an affidavit or a statutory declaration has, in my view, the very salutary effect of causing a person to halt and say, “ This does affect the civil liberties of people; I have to be careful “. It is no answer to say it may involve disclosure to other people of the contents of the request. A person authorized to take affidavits or statutory declarations can be established in the Director-General’s own office. The psychological aspect of an affidavit or a statutory declaration is, in the view I put, quite important.
Clause agreed to.
Clause 7 (Issue of warrant by DirectorGeneral of Security in emergency.).
.- When I was labouring under the impression that a mere breach of the provisions of sub-clauses (1.) and (3.) of clause 5 did1 not give the individual injured a right of action for damages, I submitted an .amendment which was opposed. The ground for the opposition was that the person should have an action for damages in terms parallel to the action which a person who has been maliciously prosecuted at common law could have, namely, to sue his prosecutor if the prosecution had been launched maliciously and without reasonable or probable cause. But quite obviously I would do the cause that I have in mind damage if we can rely upon the view that a breach of sub-clauses (1.) and (3.) of clause 5 gives rise to an action for damages at the instance of the injured person.
In an endeavour to restore an atmosphere of calm, I address a question to the Minister in submissive tones. Having re-stated the proposition that I understand was advanced, will he be so good as to confirm it? If I have the Minister’s assurance that a breach of those provisions does give to the injured person whose communication has been wrongfully intercepted, contrary to the prohibitions of sub-clauses (1.) and (3.) of clause 5, a right of action for damages, I shall not feel that I should proceed with any amendment.
– All I can say in answer to the honorable senator is that the information given to me is: If any damage is suffered by the victim - if we can call him that - as the result.
Clause agreed to.
Clauses 8 and 9 agreed to.
Clause 10 (Records of communications not relevant to security to be destroyed.).
– I have a particular interest in this clause. It reads -
Where a record, whether in writing or otherwise, has been made of a communication intercepted in pursuance of a warrant and that communication will not, or is not likely to, assist the Organization in the performance of its functions, the Director-General of Security shall cause the record to be destroyed.
That is a very worthy provision. I indicated earlier to-night that one of the great dangers of authorizing phone tapping is that one gets access to a lot of irrelevant material. This clause proposes that such material should be destroyed, but it makes no point of time at which that should be done. I direct the attention of the Minister to clause 6 (3.) where the word “ forthwith “ appears. The sub-clause reads -
Where the Director-General of Security makes a request, otherwise than in writing, for the issue of a warrant in respect of a telephone service, he shall forthwith forward to the AttorneyGeneral a request in writing. . . .
The word “ forthwith “ appears also in clause 11, which reads - (1.) Where the Attorney-General issues or revokes a warrant, he shall -
One of my complaints about the measure is the lack of urgency it shows in respect of the disposing of irrelevant matter. The word “ forthwith “ is used quite freely in other clauses. I suggest that once the decision is made that material is not related to security, the destruction should take place immediately - forthwith. , The material may contain the most intimate details of people’s conversations.
I am not proposing an amendment to this effect because I have indicated already that the Opposition is not prepared to sponsor a bill lacking in so many safeguards, but I feel under an obligation to direct attention to this matter if only because of one experience I had towards the end of the First World War. As a junior member of the Commonwealth Audit Office, I assisted my superiors in a certain investigation in which what were known as observations were made available. The reason I mention it at all is that the observations appeared publicly in court in due course, were tendered as evidence and were accepted by the court. In such circumstances, I feel free to refer to them. Those concerned in taking the observations on the telephone did not know what the objective of the searches was, so they took everything. I shall go no further than to say that the most intimate details of the lives of people not immediately concerned with our problem, which was checking frauds in connexion with the supply of foodstuffs, came to notice. The inquiries eventually led to the prosecution of high military officers and a contractor for conspiracy in that matter. But even with the lapse of some 40 years, by reason of the nature of those private matters, I can to-day recall with complete clarity the very names of the people involved. The incidents were really interesting, but they had nothing to do with our job.
I imagine that a good deal of matter like that comes within the purview of the security service. It may well represent - I know nothing as to this - the bulk of the written recordings and tape-recordings the security service might have. My guess is that it would represent the bulk of the matter available to the security service, and that the relevant matter would constitute the minority of the recordings. I am saying that whilst we cannot, having looked at material, eradicate from our memory what we read about people, it is vastly important that non-relevant matter should be destroyed forthwith; and the fact that that element of urgency has appeared in two clauses of the bill and is absent from this clause is one of the very grounds that disturbs the Opposition about the approach of the Government generally to this bill. I repeat that the Government shows a lack of appreciation of the importance of safeguarding civil liberties. I do not propose to move an amendment; I am not authorized to do so. We are not prepared to accept the bill without the safeguards I have indicated. I merely point to this as one of the things that have disturbed the Opposition.
– The clause leaves the matter entirely in the discretion of the Director-General of Security. The records are held by him, to be destroyed when, in his appreciation, they are of no further use to the organization, or if, in his estimation, they were from the beginning of no use to the organization. To put in the word “ forthwith “, as the honorable senator suggests, would not, in fact, make the position any stronger. The matter is one for the discretion of the Director-General of Security. If somebody were to say, “This was not destroyed forthwith. Why not? “, the Director-General would only have to say that it was not destroyed because, in his opinion, it was of value or might be of value to the organization. Without going to the root of the honorable senator’s objections I do not think that in a discretionary matter of this kind, the suggestion he has made would help in any way.
– 1 support the contention put forward by the Leader of the Opposition (Senator McKenna). If an intercepted telephone conversation were recorded, extraneous matter could be recorded also. If the record of that extraneous matter were kept indefinitely, the security service could, in effect, be keeping a dossier on a person who was not regarded as a security risk. lt could be that the dossier would be kepi merely in case something turned up later affecting the person concerned. If investigations were being made into a matter entirely unconnected with the inquiry which led to the dossier being compiled, the information contained in it could be made available to people other than security officers. That, to me, is quite wrong in principle.
I agree that once the Director-General of Security has decided that material is not of value to him, it should be destroyed. The keeping of irrelevant records is undesirable. The bill should make it clear that such records should be destroyed. I have no amendment to move, but I feel that strong consideration should be given by the Government to the incorporation of safeguards against the misuse of information gathered in the course of the activities of the security service in recording conversations over the telephone - material that has no bearing at all on security matters.
Clause agreed to.
Clause 11 (Manner in which warrants, &c, to be dealt with).
– I refer to subclause (4.), which provides -
The Director-General of Security shall cause to be retained in the records of the Organization all warrants issued by him and all warrants and instruments of revocation received by him from, and all requests and other documents returned to him by, the Attorney-General.
I merely point out that the procedure is as follows: A request goes to the AttorneyGeneral for a warrant. If the AttorneyGeneral decides to issue a warrant, he returns the request and sends the warrant to the security organization. Any instrument of revocation by the Attorney-General goes to the security organization also.
The sub-clause I have just read obliges the Director-General to file and keep those documents. The point I make is that there is no provision anywhere in this bill for machinery to enable the Attorney-General to keep informed on how many requests have been made or how many warrants have been issued. I direct the attention of the committee to paragraph 80 of the report of the Privy Councillors, which contains not their recommendations, but a factual statement of what takes place in the United Kingdom. It reads -
Until 1947 the Home Office kept a card index of names and addresses showing alphabetically by name and geographically by area all the warrants issued for security purposes. In 1947, at the suggestion of the Security Service, which was disturbed by the existence of these records in the Home Office, all of them were destroyed and no complete records were kept thereafter except for the serial numbers of the warrants issued.
Quite obviously all the warrants were numbered. No such provision is contained in this bill. The paragraph continues -
From 1954 the covering minutes were also preserved - we examined a number of them. These minutes contain very brief summaries of the reasons for the issue of each warrant
The Home Secretary’s Office, or the parliamentary authority, if I may so call it, in addition to issuing the authorities to the security service, retained enough information, in the form of the serial numbers of warrants issued and brief summaries of the reasons for issuing them, to enable it to exercise an intelligent oversight of the warrants that were current.
– As a statutory provision, as distinct from matters of procedure in a service like this, would not sub-clause (2.) be adequate?
– I think it is a matter of importance, as I said earlier, that an obligation be cast upon the Attorney-General, and machinery provided to ensure that he has in his hand the material to enable him to exercise a proper oversight of these matters. That provision should be included in the bill. I feel that it is our duty as parliamentarians to ensure that that oversight is undertaken. I have referred to the practice in the United Kingdom only to direct attention to the fact that in this bill the matter is left entirely to the discretion, and to the memory, of the Attorney-General.
– Subject to sub-clause (4.).
– After looking at that sub-clause again, I do not alter what I have just said. It provides for the deposit of all documents - the request for the warrant with the Attorney-General’s endorsement on it, the warrant itself and the instrument of revocation. It leaves all these documents in the custody of the security service. I am not complaining about that, but I am complaining that there is no provision for machinery to enable the Attorney-General to know what is outstanding. It is wrapped up with the question of review, which we discussed earlier to-night and which I do not want to open up any further.
This does link up with the last question to which I wish to refer now - the question of an annual report by the AttorneyGeneral regarding the operation of this measure. I think that that ought to be done. I understand enough about security to know that detailed information cannot be given of agents, the number of phone tappings, and that kind of thing, but I suggested in the course of the secondreading debate that certain percentage information should be given from time to time to enable the Parliament and the public to exercise some judgment in the matter. I mentioned the percentage of warrants issued to requests made, the percentage of warrants issued by the Director-General of Security to the total number of warrants issued, and the percentage of cases in which useful information to security was obtained and no information was obtained. For the rest, one must trust the Attorney-General to give as much information for the reassurance of the public as can be given without danger to security. I raise the two matters for the favour of a comment by the Minister.
– It has been said that there are several provisions in the bill to prevent abuses in the issue of warrants. The Director-General of Security may issue a warrant only for 48 hours. He cannot repeat the process if a warrant has been refused within the previous three months. There is no provision in this clause whereby the Attorney-General may know whether a warrant has been issued or refused. There is no provision for the keeping of records. The Attorney-General, who would be a pretty busy man, would have to search his memory to ascertain whether he had refused to issue a warrant in the previous three months.
– Do you not think that he would have access to the records of the security service?
– The bill does not state that he would. All the records must be deposited with the Director-General.
– The Attorney-General will be the responsible Minister.
– I think that the responsible person in this issue will be the Director-General.
– Do you mean that the Minister could not look at the DirectorGeneral’s records?
– There is no provision in the bill to that effect. Every time when the Director-General makes application for a warrant, will the Attorney-General have to run to the Director-General’s records to find whether a warrant has been issued within the previous three months? Some provision should be made for the keeping of records by the Attorney-General.
Clause agreed to.
Clauses 12 and 13 agreed to.
Proposed new clause 14.
.- I move -
At end of bill add the following new clause: - “ 14. The operation of sections (6.) and (7.) of this Act shall expire after three years unless reenacted by this Parliament”.
Clauses 6 and 7 give authority to the Attorney-General and Director-General of Security respectively to issue warrants. This is experimental legislation. It is the first time, to my knowledge, that such an authority has been given in a statute of a Commonwealth country. It is an authority that, so far as I know, has no parallel in the United States, where the question of authority for wire-tapping has been under review for several years. I think it was in 1948 that a stern enactment was made in terms of our clause 5 prohibiting wiretapping absolutely. It seems to me, therefore, a reasonable proposition that we as a Parliament should reserve the right to have a look at this matter in the light of experience after a period of three years. In view of the keen feeling that exists with regard to these authorities, I hope that the Minister might be able to see his way clear to make that concession to the Parliament.
– I support the amendment.
.- The effect of the amendment would be that if, in three years’ time, there was a government which did not desire to allow the security service to carry on telephone tapping at all, the methods by which the security service will, under this bill, be allowed to tap wires would cease to operate, and there would be no method at all, not even the method previously existing under Post Office regulations, by which a record of a conversation by possibly subversive elements could be made. I therefore prefer not to accept the amendment.
Question put -
That the words proposed to be added (Senator Wright’s amendment) be so added.
The committee divided. (The Temporary Chairman - Senator Anderson.
Majority . …… 6
Question so resolved in the negative.
Title agreed to.
Bill reported without amendment; report adopted.
Motion (by Senator Gorton) put -
That the bill be now read a third time.
The Senate divided. (The Deputy President - Senator the Hon. A. D. Reid.)
Question so resolved in the affirmative.
Bill read a third time.
– I present the first report of the Printing Committee.
Report - by leave - adopted.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Paltridge) read a first time.
The DEPUTY PRESIDENT (Senator the Hon. A. D. Reid). - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
Question resolved in the negative.
– I move -
That the bill be now read a second time.
The purpose of this bill is to give the force of law to an agreement between Australia and New Zealand to relieve double taxation on incomes flowing between the two countries. The agreement was signed last week by the Treasurer, the Right Honorable Harold Holt, on behalf of Australia and by the High Commissioner for New Zealand, His Excellency, the Honorable F. Jones, on behalf of his country. Three similar agreements have already been concluded with the United Kingdom, the
United States of America and Canada, and each of those agreements has been approved by the Commonwealth Parliament.
Perhaps I should explain at this stage that, broadly speaking, double taxation by Australia and New Zealand has been avoided in the past by measures which are not in complete conformity with the pattern of the three agreements I have already mentioned. Australia has not taxed its residents on income, other than dividends, derived from New Zealand sources if that income has been subjected to New Zealand tax. So far as dividends are concerned, double taxation has been relieved by the allowance against the Australian tax of a credit for the New Zealand tax. New Zealand has avoided double taxation by exempting its residents from tax on income, including dividends, from Australian sources if that income has borne Australian tax.
There have been some isolated cases where double taxation has not been wholly relieved. Such cases are mainly those where different views are adopted by the Australian and New Zealand taxation administrations as to the source of the income and the amount of profit derived from sources in the respective countries. These difficulties will be resolved by this agreement.
In common with the agreements concluded with the other countries I have mentioned, this agreement will generally preserve the prior right of Australia and New Zealand to tax income arising within the respective countries. However, as in the case of those agreements, certain classes of income will be taxed only by the country in which the recipient of the income resides. A most important feature of the agreement is that the maximum rate of tax that may be imposed on dividends paid by a company resident in one country to a shareholder resident in the other country will, with few exceptions, be limited to 15 per cent, of the dividend.
Honorable senators will recall that last year legislation was enacted to impose a withholding tax on dividends paid by Australian companies to overseas investors. That tax will come into effect on 1st July of this year, and it will be met by tax deductions made from the dividends at the time of distribution. Dividends paid by Australian companies to New Zealand shareholders would, if it were not for this agreement, be subjected to a withholding tax of 6s. in the £1, but under the agreement the rate will, in the generality of cases, be limited to 3s. in the £1. Conversely, dividends paid by New Zealand companies to Australian shareholders will not be taxed at a rate higher than 3s. in the £1.
The agreement authorizes the taxation authorities of the two countries to exchange such information as is necessary for the operation of the agreement, the prevention of fraud or the administration of provisions against the avoidance of tax. The respective taxation laws of each country ensure secrecy in relation to the information exchanged, and the exchange of information relating to trade secrets or trade processes is specifically precluded. The agreement will apply in Australia to income derived during the current 1959-1960 income year and in New Zealand to income derived during the income year which ended on 31st March, 1960.
A copy of the agreement is set out in the schedule to the bill and an explanation of each article will be found in the memorandum circulated on the authority of the Treasurer. One of the formal provisions of the agreement is that the minimum period for its operation is five years. After the expiration of that period it may be terminated if either country gives due notice. It is confidently expected, however, that the agreement will provide a permanent basis for the relief of double taxation between Australia and New Zealand.
I commend the bill to honorable senators.
Debate (on motion by Senator McKenna) adjourned.
Debate resumed (vide page 1080).
– This bill provides for the discharge at 30th June, 1960, of national service trainees held on strength in the citizen forces, and for the discharge at an earlier date than 30th June, 1960, of those who volunteer and are accepted for service in the Citizen Military Forces. The national service training scheme has involved enormous expense for this nation. It is estimated that approximately £150,000,000 has been spent on the scheme. I believe the scheme has given a large number of young men some disciplinary training which has helped to make them better citizens. I also believe that the scheme provided something in the nature of a national fitness campaign, and that it might even have been given that title. The actual military training that the lads received was very elementary. I am doubtful whether that training would have fitted them to take their place as front-line troops in an emergency, for instance if this country became involved in a war. In such circumstances I doubt whether these trainees could be considered sufficiently trained to be sent into action for the purpose of repelling possible invaders.
I am also of the opinion that many of the instructions given to national service trainees were very easily forgotten, and that although they underwent refresher courses from time to time, much of their instruction was forgotten in the months between such courses. I believe that a good deal of the instruction they received will be forgotten in the years to come. The trainees who go into the Citizen Military Forces will, of course, continue to receive training and will not be allowed to forget the instruction they received as national service trainees.
The Minister said in his second-reading speech -
The proposed legislation will enable a national serviceman to enlist as a volunteer in the Citizen Military Forces by freeing him from his residual obligations under the National Service Act at 30th June, I960, or earlier if he volunteers and is accepted before that date.
There are in the armed forces at present some 4,000 national servicemen who have volunteered for further service, but that is a small percentage of the total of 81,000 youths who have received training under the national service training scheme. The lads who have volunteered to continue to serve in the Citizen Military Forces should be congratulated on their decision. Should it be necessary for them to fight for their country - and we of the Australian Labour
Party hope that such an occasion will never arise - I am sure that they will carry on the traditions established by the men who fought for Australia in the First and Second World Wars. Those young men come from the same stock as the men who put Australia’s name in the history books, by their achievements in the Gallipoli campaign in the First World War and in the campaigns in the Pacific islands and in the Middle East in World War II.
The Opposition does not oppose this bill which seeks to bring to an end the national service training scheme. We of the Australian Labour Party are of the opinion that the results of the scheme have not justified the enormous sums of money that it has cost. The small benefits that have been gained in the form of physical fitness and discipline for the young men who have taken part in it, to my way of thinking do not justify the expenditure of the £150,000,000 that the scheme has cost. The Australian Labour Party sincerely hopes that the money that is saved through the scheme being terminated will be used to provide education and other facilities that will be of advantage to the nation generally. I support the bill.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Debate resumed (vide page 1137).
– This is a measure which is designed to bring the double taxation arrangements between New Zealand and Australia into line with those that are operative already in respect of Australia and the United Kingdom, Canada and the United States of America. The measure is not as comprehensive, of course, as are the agreements with those three countries, because it deals with matters that are already covered substantially by arrangements between New Zealand and Australia for the avoidance of double taxation. It is a pleasure to find that the arrangements between the two countries will be brought into line with those of the other agreements that I have mentioned. The bill has been presented in the usual form by the Commissioner of Taxation, with an explanatory memorandum which enables anybody who is concerned with the technicalities of the measure to understand the reasons for the various provisions of the proposed agreement. The Opposition welcomes the agreement and offers no objection to the bill.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Debate resumed (vide page 1081).
.- The purpose of this bill is to extend the operation of the sulphuric acid bounty for a period of six months, from 30th June to 31st December, I960. As the Minister for Customs and Excise (Senator Henty) stated in his second-reading speech, a bounty is payable on sulphuric acid produced from prescribed indigenous materials. The bounty would expire, in the normal course, on 30th June next. The Tariff Board has been asked to conduct an inquiry and to report on the sulphuric acid industry, and I think it is rather regrettable that the board’s report is not yet available. After all, a considerable sum of money has been spent by the Government in bounty payments to fairly wealthy companies. I say “ fairly wealthy companies “ advisedly, because I think it will be agreed that, taken by and large, and having regard to overall production figures, the companies concerned are doing very well indeed. The production of sulphuric acid may be looked upon by certain companies as a sideline. In that event a company that is doing well in its other activities should1 absorb any losses that may be suffered in the production of its sidelines, thereby saving the taxpayers the amount of the bounty.
We do not oppose this measure. We are well aware of the importance of sulphuric acid to industry. We know that sulphuric acid is used extensively in the production of fertilizers. Two firms that are engaged in the production of fertilizers are Cuming Smith and Company Limited and Mount Lyell Mining Company Limited. A mining company at Norseman, in Western Australia, is going in for the production of pyrites, which is the chief constituent in sulphuric acid. The company operating at Norseman would not be in the same healthy financial position as some other companies engaged in the production of sulphuric acid, particularly those to which I have referred. This industry means a great deal to the people of Western Australia and it would be a shame if it were forced to close down. Norseman was at one time a prolific goldproducing area, but the mine there is now largely concentrating on pyrites.
I hope that the production of the Tariff Board reports will be expedited. During the year ended 30th June, 1955, bounty payments totalling £306,305 were paid in respect of a production of 131,956 tons of sulphuric acid. For the year ended 30th June, 1956, the bounty payments rose to £446,666 in respect of a production of 236,946 tons. Production of sulphuric acid has been increasing every year since 1956. In the year ended 30th June, 1959, bounty payments totalling £1,418,084 were paid in respect of a production of 377,833 tons. The industry is developing, and we on this side of the chamber are pleased to see that development. When the matter of affording some protection to Australian industries was first discussed, there was some argument whether protection should be afforded by way of bounty or by way of tariff protection. The Labour Party felt that a bounty was the best means. The Opposition supports the bill.
Question resolved in the affirmative.
Bill read a second time.
– I should like to ask the Minister for Customs and Excise (Senator Henty) when he expects the Tariff Board to submit its report in connexion with this matter. How long does the Government expect to take to consider the report after it has been received?
The production of sulphuric acid is important to Australia, and this matter of a bounty should be cleared up quickly in the normal legislative manner and not in the temporary manner as proposed by the bill. The sulphuric acid industry is important to South Australia. The pyrites mine at Nairne, in the Adelaide hills, has been developed at very great cost and with the assistance of the South Australian Government. This is an urgent matter, and I would be obliged if the Minister could supply the information that I have sought. I understand that of late the work of the Tariff Board has been speeded up considerably as a result of the introduction of improved methods of operation. I would be greatly encouraged to know that those improved methods are beginning to have the desired effect.
– In answer to Senator Sheehan, I point out that there is a profit limitation associated with the payment of a bounty on the production of sulphuric acid. Senator Sheehan, therefore, need not worry about wealthy companies receiving the bounty.
I thank Senator Laught for his comment on the speeding up of the work of the Tariff Board. No doubt he observed that seventeen reports of the Tariff Board were placed on the table to-night and eight reports were placed on the table last week. That is a total of 25 reports, so the presentation of reports has been speeded up. I cannot say definitely when the report on the sulphuric acid industry will be presented. All I can say is that the board’s hearings were completed on 3 1st October, 1959. The fact that the Government has extended the operation of the act for a further six months only is some indication that the report will be finalized in the near future. I cannot say with accuracy when the report will be submitted or when the Government will complete its examination of the report. Those things will certainly be done within the period covered by this bill.
Bill agreed to.
Bill reported without amendment; report adopted.
Bill read a third time.
Debate resumed (vide page 1081), on motion by Senator Henty -
That the bill be now read a second time.
.- This bill is somewhat similar to the bill that has just been passed. It deals with another of our raw materials - copper. The bill extends for a further six months the current bounty paid on refined copper of domestic origin sold for use in Australia. This bounty has been in operation for some time. Although there is a profit limitation associated with the payment of bounties, I think the Minister for Customs and Excise (Senator Henty) will agree that the firms engaged in the production of copper are doing very well. As quite a number of honorable senators who are present to-night were not here when the Senate first introduced the payment of bounties, I propose to read from the Tariff Board’s report on products of copper and other materials, dated 20th November, 1959. It states -
Under the Copper Bounty Act 1958, a bounty is payable on sales of refined copper produced and sold in Australia. The main provisions of the legislation follow: -
The maximum rate of bounty is £43 per ton.
The maximum rate of bounty is payable when the weekly average London Metal Exchange price of copper, as determined by the Minister, is £275 per ton or less; the rate of bounty falls by £1 per ton for each £1 by which the determined London Metal Exchange price rises above £275 per ton.
The bounty is payable to the mines producing the copper.
The bounty applies to all sales made between 19th May, 1958, and 30th June, 1960.
The bill before the Senate has been introduced in order to extend for a further period of six months the payment of the copper bounty on the terms mentioned by the board.
Copper is produced by some very efficient and wealthy concerns. I understand that the delay in deciding whether this industry shall continue to receive assistance by way of a bounty or be the subject of ordinary tariff protection is due to the developmental work that is taking place at Mount Isa in Queensland. It must be remembered that copper and other metals which contain copper are imported into this country. New machinery hasbeen installed at Mount Isa, and I understand that the Tariff Board wants to see what progress can be made in this field.
As honorable senators know, copper is used in the manufacture of many household fittings and kitchen utensils, as well as hotwater systems. Therefore, we favour the continued payment of a bounty to the industry rather than that it shall be afforded tariff protection. The imposition of a tariff would tend to react against the users of goods of which copper is a component. On the other hand, as the bounty is paid from Consolidated Revenue, the continuance of this system would mean, virtually, that every member of the community would be helping to keep the Australian copper industry going. It is for that reason that the Opposition favours the payment of a bounty during the initial developmental stages of this industry. A bounty has been paid for some time pending the receipt of the Tariff Board’s report. The Opposition does not object to the extension of the operation of the copper bounty for a further period of six months until the end of this year.
I emphasize, however, that a considerable amount of money is involved in the payment of the bounty out of Consolidated Revenue, and we do not want to be committed to the continued payment of this bounty beyond the time when it is expected the Tariff Board’s next report on the copper industry will come before us for consideration. To-night, there has been presented to us a report which is almost a corollary of the measure we are discussing, relating to the products of copper and other metals, that is, the types of articles to which I have briefly referred.
On the general question that was raised by Senator Laught, I should like to say that the criticism that was voiced in another place, as well as in this chamber the other night when I dealt with the provisions of certain customs tariff bills, might have stirred things up a bit. I am very pleased that the Tariff Board’s report on the rayon industry has been tabled in the Senate tonight, because I know that quite a number of manufacturers of man-made fibres have been very anxiously awaiting it. Other industries, also, are fearful of the competition that is being offered by goods that are entering the country as a result of the lifting of import restrictions. I hope that the good work of the Tariff Board that has been manifested in the Senate to-night will be continued and that in the Budget session - or possibly before this session concludes - further recommendations of the Tariff Board will be placed before us. I support the bill.
Question resolved in the affirmative. Bill read a second time. In committee: The bill.
– In order to be consistent, I should like to ask the Minister for Customs and Excise (Senator Henty) to inform me whether the Tariff Board’s hearing concerning the copper industry has been completed. If it has not been concluded, when is it expected that the hearings will terminate? Is the Minister in a position to say when it is expected that the Tariff Board’s report on this important matter will be available, and what period of time is it expected will then elapse before the Government considers the report? I believe, Sir, that the health of the copper mining industry is dependent upon our consideration of this matter. When I visited the Northern Territory, I had a look at the great Peko mine near Tennant Creek. During the forthcoming recess, I hope to have an opportunity to visit Mount Isa and Mount Morgan, and perhaps other places where this valuable metallic substance is being won.
I believe that Australia will develop a valuable export trade in copper. It is known that the Peko mine already is sending copper to Asia and, of course, there is a large local industry engaged in the manufacture of products from copper. Therefore, I shall be glad if the Minister will furnish me with the information I have sought, and I urge him personally to pursue this matter to ensure the early completion of the Tariff Board’s inquiry into the copper industry. I think that when we are asked to extend the period of operation of a bounty, we should do all we can to have the Tariff Board’s report placed before us for consideration as early as possible. I remind honorable senators that to-night the Minister informed me that, with regard to another matter that was referred to the board for inquiry, the taking of evidence was finished last October, but the board’s report has not yet been furnished. I know that the Tariff Board has been engaged in a great inquiry involving 200 or 300 items, but nevertheless its reports concerning major industries such as the one in question should not be delayed. It should not be necessary to introduce measures to Brant an extension of the period of operation of bounties. I am grateful to Senator Sheehan for his enlightening remarks on the matter. 1 think that we can learn a lot from his contribution to this debate.
– I thank Senator Laught for his comments. The reference in regard to copper was made to the Tariff Board on 24th September, 1959, and the hearing of evidence by the board was concluded on 15th February, 1960. A delay occurred in the hearing because the new refinery of the Mount Isa company at Townsville was just coming into operation, and it was felt that some information as to costs of smelting and so forth should be accumulated before the board concluded the hearing. Although the board concluded the hearing on 15th February, 1960, it has not yet had sufficient time to complete its report. Four mines are attracting the bounty - Peko in the Northern Territory, Mount Morgan, Mount Lyell and Lake George. The large copper mine of Mount lsa Mines Limited has, of course, made no application for the bonus, because there is a profit limitation in this matter.
On the general question raised by Senator Laught, I can assure him that the Government is fully aware - particularly in view of the lifting of import restrictions - of the necessity to have the Tariff Board operating as speedily as possible. I refer him to the fact that the report on man-made fibres was tabled in the Senate to-night. The subject was referred to the board in October, 1959, and the hearings were concluded in March, 1960. That indicates that the work of the board has been speeded up. The Government is well aware of the necessity to speed up the board’s work, but new and urgent references have been given priority over other matters that the board had in hand. That is what happened in relation to the report on man-made fibres which was tabled to-night. I assure him that the Parliament and the Government is desirous of seeing that the work of the Tariff Board is expedited.
Bill agreed to.
Bill reported without amendment; report adopted.
Bill read a third time.
Debate resumed from 1 8th May (vide page 1029), on motion by Senator Gorton -
That the bill be now read a second time.
– This measure is beneficial in its intent and effect. It will enable a litigant in contract or tort to sue the Commonwealth in a court of inferior jurisdiction in both the States and Territories of Australia. Hitherto actions have had to be brought either in the High Court or the Supreme Court of a State. Owing to the various bases of jurisdiction of the inferior courts of States and Territories, some rather interesting procedural provisions have been made in the bill to enable the Commonwealth to be sued in those courts.
The Commonwealth, for instance, has had to be deemed to be resident in the capita] cities of States or the principal cities of Territories. Some of the courts require as a basis of their jurisdiction the residence of a defendant in their locality. The Opposition regards the measure as a step forward. It will save both time and costs for litigants suing for small amounts. The Opposition supports the measure.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Motion (by Senator Paltridge) agreed to -
That the Senate, at its rising, adjourn till Tuesday, 31st May, at 3 p.m.
Motion (by Senator Paltridge) proposed -
That the Senate do now adjourn.
– I should like to direct the attention of the Treasurer to a question I asked with reference to tarpaulins. The answer had reference to covers. Checking with the retailers’ journal of March, 1960, I find that covers are exempt from sales tax, but that tarpaulins of the same size as covers are not so exempted. The Minister informed me that the third schedule of the Sales Tax (Exemptions and Classifications) Act authorizes the exemption of covers for haystacks and other primary produce or covers for use in the agricultural industry. He dealt with covers, but I was dealing with tarpaulins. 1 have a journal in front of me which states that covers are exempt from sales tax. Tarpaulins of exactly the same size are double the price of the covers, and are subject to a 124 per cent, sales tax, according to this journal. Of course, the journal could be wrong, but I doubt that it would be.
According to information I have been given, tarpaulins are used extensively to cover up farm produce on trailers and in utilities. They are also sometimes used to cover haystacks. According to this journal, tarpaulins attract sales tax when they are classed as tarpaulins, and not as covers. An inferior type of cover can be bought which does not attract sales tax. I should also like the Minister to state whether a person purchasing a tarpaulin could obtain it free of sales tax if he signed a declaration that he wanted it for the purpose of covering primary produce. In 90 per cent, of cases, these tarpaulins would be used for the purpose of covering primary produce on its way to the market or back to the farm, and also on the farm itself. I am not going to say that the Minister was not absolutely correct in dealing with covers in the way he did. If I am wrong in what I have said about tarpaulins, the retailers’ journal of March, 1960 is also wrong.
– I wish to mention a matter that has been giving us great concern for a number of years, namely the appeal for blankets for needy people in the State of Victoria. The Melbourne “ Herald “, which has done a marvellous job over the years in this connexion, has appealed for contributions to a blanket fund, and this appeal has been very successful. About two months ago, Senator Sandford asked on behalf of my branch of our party whether the Minister for the Army (Mr. Cramer) would consider making blankets and clothing, which are surplus because of the discontinuance of national service training, available to needy persons. Senator Henty supplied the following reply from the Minister for the Army -
At the present time the Army is reviewing its stock-holdings as a result of the current reorganization. At this early stage it appears likely that there will be only limited stocks of the items in question available for disposal. Any such items will be declared for disposal by the Department of Supply, which is responsible for disposing of all service surpluses.
The prices received for surplus blankets are very low. As the Senate, at an early date, will go into recess for the winter months, will the Minister give favorable consideration to making surplus blankets and clothing available to needy people in the various States?
– in reply - I desire to say only briefly that Senator Aylett may be discussing a case in which a fine distinction is drawn between the physical qualities of two types of material used for covers. The question can be resolved only by an examination of the sales tax schedule describing the physical qualities of the items. I confess immediately that I have always thought that “ tarpaulin “ meant “ tarpaulin cover “ and nothing else, especially when used on a farm. I think that the question might well be examined to see whether some fine distinction is drawn between the two types of cover.
In reply to Senator Hendrickson, all I can do is to bring his remarks to the notice of the Minister for the Army (Mr. Cramer).
Question resolved in the affirmative.
Senate adjourned at 11.23 p.m.
Cite as: Australia, Senate, Debates, 19 May 1960, viewed 22 October 2017, <http://historichansard.net/senate/1960/19600519_senate_23_s17/>.