26th Parliament · 2nd Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 10 a.m.. and read prayers.
Senator COHEN presented a petition from seven members of the Wills Branch of the Young Labor Association praying that the Parliament modify electoral boundaries and the method of counting votes.
Petition received and read.
– 1 direct a question to the Minister representing the PostmasterGeneral. What provision is made by the Postmaster-General’s Department to secure alternative employment for telephonists and other staff who are retrenched as a consequence of the installation of subscriber trunk dialling equipment? As a practical step towards promoting the concept of decentralisation, will the Minister ask the Postmaster-General to confer with the Minister for Labour and National Service for the purpose of undertaking a study of the feasibility of establishing offices where accounting, clerical and similar administrative work can be performed for government departments in areas in which staff retrenchments have accentuated already difficult employment situations for females?
– I am unable to give the honourable senator a detailed reply to either part of his question, but 1 will place the question before the Postmaster-General and inform him of the suggestions that the honourable senator has made.
– My question is addressed to the Leader of the Government in the Senate. In view of the fact that, when the Government announced the purchase of a BACIII jet aircraft for the VIP Flight, a large section of the Australian Press either gave wide publicity to or indulged in criticism of the Government’s action on the grounds of unwarranted luxury and extravagance, will be as soon as possible make public at what charge and under what conditions the BAC1 1 1 was chartered to follow the Prime Minister on his current visit to Asian countries and state how many news media representatives travelled on the aircraft? Are aircraft of the VIP Flight made available for charter to any other organisations?
– I shall have to refer the question concerning the actual details of the flight and the use of the BACIII, aircraft to the Minister for Air. Nevertheless, I believe it would be recognised that when the Prime Minister of Australia travels overseas, it is in the very best interests of the Commonwealth that there should be a wide Press coverage of his visits. All I can say about the generality of the question is that here is a perfect example of the justification for the use of this special aircraft and for the Government’s decision to buy this type of machine so that it oan be made available for special purposes.
– I desire to ask the Minister representing the Minister for External Affairs a question. What action can be taken, either at the United Nations or elsewhere, to stop the senseless and callous Vietcong attacks on Saigon and other Vietnamese cities which result daily in casualties to the innocent civilian population? How long can the allied forces maintain their rule that Hanoi is not to be bombed, when the Vietcong daily kill unarmed civilians in Saigon? Should not Australia call on American representatives at the Paris talks to demand, as a token of sincerity from the other side, a cessation of its attacks on civilians in crowded cities?
– Much of the question asked by Senator McManus points up the fundamental issues that are involved in the discussions at the Paris conference. It can be accepted that the view of the Australian Government and, indeed, the view of the United States of America, is directed to finding a formula for the talks which would have as its basis a complete cessation of these cruel, senseless and tragic attacks on civilians in South Vietnam. In truth, the question posed by Senator McManus touches on the whole problem faced by the United States and Australia in attempting to find some proper basis for negotiation. It seems to me that while the present situation continues and North Vietnam maintains its present stand, the task of the negotiators will be all the more difficult. We all hope and pray that the representatives of North Vietnam will come to some understanding of the need for the cessation of attacks on South Vietnamese civilians, as a response to the definite attempt by the United States to find a formula.I believe that until a formula is found, the prospects of success at the Paris conference will be prejudiced.
-I address to the Minister representing the Minister for Shipping and Transport a question concerning the Japanese Kawasaki. Kisen. Kaisha Ltd shipping line and South Australian exports. 1 preface my question by saying that regularity and continuity of supply of exported goods are essential to the maintenance and expansion of the South Australian export trade to Caribbean and South American ports. As the June schedule of the K. line ship ‘Hikawa Maru’, now loading in Melbourne, does not include Port Adelaide, and as some 525 tons of South Australian goods have had to be transported by road and rail to join this ship in Melbourne, will the Minister make representations to the Minister for Shipping and Transport for reimbursement to South Australian shippers of these transport costs, in conformity with the normal subsidies applying to K line ships in the Australian export trade generally?
– I realise the importance of a regular service by the K line, which has the contract, from Australian ports to the area mentioned by the honourable senator. As to whether the Government will pay a subsidy on the carriage of freight between Adelaide and Melbourne, I shall bring this part of the question to the attention of the Minister for Shipping and Transport, obtain an answer from him. and write direct to the honourable senator.
– I wonder whether the Minister representing the Minister for Social Services is in a position to give me any further information about the allegationI made yesterday that the introduction of computers had initially delayed the processing of some social service applications in Sydney.
– I am pleased to reply to the honourable senator. The Minister for Social Services informs me that it is not true to say that the introduction of a computer to the Sydney office of the Department of Social Services is causing delays in the payment of pensions or other benefits. On the contrary, payments continue to be made on or before the due date, and through the use of a computer it will be possible to shorten the time between receipt of a claim and when it is completely processed. Of course, it is possible for an odd claim to be delayed for one of a variety of reasons. If Senator Mulvihill will provide details of any particular case, the Minister will be pleased to have inquiries made.
– My question is directed to the Minister representing the Minister for education and Science. 1 ask: Will the Minister consider making funds available to assist a study of the application of automatic data processing in the keeping of records for all State school students and later for all non-State school students? Is the Minister aware of the tremendous potential of such a step in that it would relieve qualified teaching staff from clerical duties and in the case of government schools would allow the schools to centralise their work on a computer complex?
– I shall ask the M inister to consider Senator Webster’s suggestion. I only add, of course, that it involves a Budget appropriation and therefore can only be considered in the context of the Budget. I remind the Senate that in reply to recent questions having special reference to libraries the Minister for Education and Science has told the Senate that he has under consideration a number of areas of assistance for education. I invite the honourable senator to submit any specific material he has with regard to the potential of this development. I have no doubt that the Minister would be obliged if the honourable senator were to give it to him for consideration.
– Has the Minister for Customs and Excise seen a report thai a large quantity of gold was found on a Qantas Airways Ltd aircraft travelling to South Africa? Can (he Minister say whether the aircraft was searched by an officer or officers of his Department prior to its leaving Australia? If so, why was the gold not found prior to the aircraft’s leaving Australia? Can the Minister state where the gold was loaded onto the aircraft and whether the Australian authorities have any claim on it?
– 1 have read a report in a newspaper that a plane left Australia and when it landed in South Africa some bars of gold were found in the toilet, lt was a Qantas Airways Ltd Boeing 707 that left Australia from Perth Airport. It was examined by customs officers and members of the Qantas staff before leaving Perth. It went to Mauritius and then on to South Africa. Is there any reason, I ask the honourable senator, why the gold could not have been put on the aircraft at Mauritius or al any other place? According to my information it was not put on in Perth.
– I direct a question to the Minister for Works. By way of preface I refer to an earlier statement by Senator Anderson that beach erosion research was a matter for State and local government authorities. My question is: In view of the recent decision by the Minister for Works to make a grant to combat beach erosion in Botany Bay, does he not think that a natural corollary would be the creation of an advisory body similar to the Beach Erosion Board of the United States Army Corps of Engineers to guide his Department, in the making of future grants, particularly when a precedent exists in that the Commonwealth Department of Education and Science advises the Commonwealth Government on aid to the States in the education field?
– I regret that I cannot give the honourable senator any encouragement to think that the Commonwealth would include within its ambit of responsibility the general problem of beach erosion. The assistance that is being given to restore the Botany Bay foreshore arises out of the airport pier works that were carried out in Botany Bay and which have been considered as having some relationship to the cause of damage to that foreshore. lt is a specific matter.
– Can the Minister representing the Minister for National Development give us any further information on investigations of the deposits of phosphatic rock in the Cloncurry area? Has he any information as to when the results of these investigations are likely to be available?
– I know that there are large deposits of phosphate rock at Cloncurry, Queensland, and that these deposits are being investigated by the various companies owning the leases. I understand that the deposits are very large. The question of whether they are of a high enough grade to exploit, in view of their location and the transport involved, is being examined. When that information is available no doubt the Minister for National Development will make a statement.
– Has the attention of the Minister representing the Minister for Trade and Industry been drawn to reports in yesterday’s newspapers of the criticism by the President of the Knitting Industries Council to the expressed intention of the Tariff Board to classify Australian protected industries into categories of high, medium and low protection? Has the Government given adequate consideration to the impact that this intended classification of industries may have in possible reduction of expansion of the textile industry, reduction of investment in the industry, reduction of employment opportunities for Australians and, perhaps more importantly, a reduction in the local use of Australian produced fibre which, in the instance of the knitting industry, is substantially wool?
– Last week I supplied to Senator Webster and, indeed, to Senator Sim an answer from the Minister for Trade and Industry adverting to the generality of this particular issue. The view expressed by the Knitting Industries Council can be appropriately examined only by the Minister for Trade and Industry and I would not presume to moke a policy announcement at question time. I will refer the question to the Minister.
– The Minister representing the Treasurer will recall obtaining from me an answer from the Treasurer concerning a suggestion I made which I thought might help in making available more finance for housing in Australia. In the course of his reply rejecting my suggestion the Treasurer said:
There would be other more effective, more equitable and more economic means of increasing the supply of housing finance were further measures to that end necessary.
Will the Minister ask the Treasurer: Firstly, will the Treasurer outline what those means are; secondly, is he satisfied with the availability of domestic housing; and, thirdly, if not, does he not agree that more finance would be beneficial to the States?
– As to the general question concerning housing, I think that the Minister for Housing would be anxious to indicate the tremendous development and progress that have been achieved. In fact, during this session she has given cogent information on the great advances that have been made. However, 1 do not believe that this is the kernel of the question that the honourable senator now asks. He seeks information supplementary to his earlier question and 1 will get it for him.
– The question, which I address to the Minister for Works, is supplementary to a question asked earlier. In view of the fact that the Minister has implied some responsibility of the Commonwealth Government in respect of erosion of the foreshore at Botany Bay, and as further runway extensions are to be undertaken, again using rilling from the Bay, oan we understand that Australian taxpayers, as distinct from taxpayers of New South Wales, will be responsible for repairing erosion that occurs in this area in the future?
– I should think that all parties would recognise that the construction of Sydney (Kingsford-Smith) Airport to meet the demands of immediate and future types of jumbo aircraft is not a matter of Sydney interest only but a matter of very great national interest, lt is true that in connection with the extension of the runway further dredging in Botany Bay is proposed in accordance with a design and at a depth recommended by expert English consultants who have been advising on this project. The further dredging is expected to restore the wave pattern that was originally thought to have been interfered with by the partial dredging done heretofore. In connection with that work it is considered a proper Commonwealth responsibility to assist in the restoration of the beach damage at Botany Bay.
– I address my question to the Minister representing the Minister for Primary Industry. Is he aware of any factors that could support the suggestion of a reduction in the butter fat price to Australian dairy farmers? In view of current uncertainty in sections of the industry, will he ask the Minister to make a statement that could allay the fears and apprehensions of Australian dairymen, who are concerned at current reports that a price reduction is imminent?
– I thought 1 answered a question very similar to this yesterday. My answer was to the effect that the Minister had stated some few months ago, when announcing the agreement that had been made on butter and cheese, that there would not be any reduction at all.
(Question No. 273)
asked the Minister representing the Minister for Health, upon notice:
– The Minister for Health has furnished the following reply:
Committee of the National Health and Medical Research Council, is continuously active in this field and reviews the use of various substances for food packaging. Specific recommendations in the case of cellophane and polyethylene film have been made by the Committee and are listed in the publication titled ‘Approved Food Additives’ issued by the National Health and Medical Research Council.
(Question No. 319)
– asked the Minister representing the Minister for Health, upon notice:
– The Minister for Health has furnished the following reply: 1, 2 and 3. The position is that the Commonwealth in May 1966 offered Queensland and other Stales thefull cost of the establishment of incinerators at selected ports plus the cost of ancillary buildings, foundations and fencing, and half the cost of access roads but excluding land costs. The offer was made on the understanding that these matters would be subject to prior approval by the Commonwealth as to costs, location and all construction plans and that the Commonwealth would not be responsible for any share of the costs of maintaining or operating the incinerators or transporting garbage. Queensland, without formal acceptance of the Commonwealth’s offer, has decided to put in hand immediately measures for the installation of incinerators and subsidiary plant, equipment and organisation in such Queensland overseas ports as Queensland considers necessary. This they are doing on the understanding that the matter of replacements will be further discussed with the Commonwealth.
Discussions have been held on several occasions between Commonwealth and Slate officers concerning the location and design of incinerators in Queensland and it is anticipated that this close collaboration will be maintained. However, until the Commonwealth offer is formally accepted by Queensland. Commonwealth finance will not of course be available to that State.
I am further advised that the Acting Premier of Queensland has announced that incinerators arc to be provided at thirteen Queensland ports and that the cost has been estimated at $295,500.
Debate resumed from 11 June (vide page 1580), on motion by Senator Cormack:
That the papers be printed.
Question resolved in the affirmative.
– I now move:
That the Senate take note of the report.
Firstly, 1 must apologise for the fact that when the report was tabled yesterday, there was an error on my part. If I incommoded the Senate in any way, 1 seek its forgiveness. I merely wish to say that the Committee has not been able to come to any clear definition of the extent of the problem posed by the subject matter of this report for the simple reason that its dimensions cannot be quite clearly seen because there is an interaction between responsibilities at law. I refer, for example, to the constitutional responsibilities of the Stales and those of the Commonwealth on the one hand, and accepted international law on the other. They interact on each other.
From the point of view of the Committee, 1 think the most significant area of its investigations lies in the constitutional aspect. All I can say in relation to that is that when a remark was made to witnesses who were members of the legal profession that the constitutional aspect seemed to indicate a rich and varied pasture on which the legal profession could browse for the next two generations, we noticed no sign of glumness on their faces.
The last thing I wish to say in relation to the report is that I owe an explanation to the Senate. If is that I do not believe that such a successful conclusion as’ the Senate may consider the Committee has reached could have been achieved without the extraordinarily hard work of my Senate colleagues who comprised the Committee. I am indebted for the hard work they have put into the investigation over the past 12 months. I am indebted also to the Senate officers for all that they have done.
Debate (on motion by Senator Bishop) adjourned.
– by leave - During the last 24 hours J have had circulated a statement made by the Treasurer (Mr McMahon) in connection wilh the Commonwealth Employees Compensation Act. 1 now ask for leave to have the statement incorporated in Hansard. If leave is granted, I shall then move that the Senate take note of the paper.
– There being no objection, leave is granted.
– The pronoun T relates to the Treasurer when it appears in this statement which reads as follows:
In his Speech opening this session of Parliament, His Excellency, the GovernorGeneral, indicated that it was the Government’s intention to introduce legislation to improve the scheme of compensation for death and injury which is applicable to employees of the Commonwealth. During the Budget session last year, in the course of his second reading speech on the Commonwealth Employees’ Compensation Bill 1967. the Minister responsible for the carriage of the Bill said that it was the Government’s intention to introduce a further, and much larger amending Bill, during this autumn session. I regret to inform the Senate that, because of a number of unforeseen difficulties which arose during the review of the compensation legislation by a Committee of Ministers and later during the drafting stage, it has not been possible to complete the drafting of a Bill that could be introduced during the present session of Parliament. However, honourable senators will, I think, be interested in the changes that are proposed in this legislation, and it is therefore appropriate that 1 should inform the Senate in some detail of the contents of the proposed Compensation Bill which the Government expects to submit to the Parliament during the Budget session.
Let me first say that the Ministers on the Committee spared no pains in dealing with the task that was allotted to them. They devoted a great deal of time and thought to it and, as a result, their review of this legislation involving consideration of the principles underlying the other legislation in this sphere and the practices of the respective administering authorities, has been the most comprehensive and wide ranging in the history of the Act since its inception in 1930.
The proposed Bill will reflect this, in that a completely new piece of legislation will be brought before the Parliament and not merely a Bill comprising a series of patchwork amendments to the existing legislation. The Government believes that the new Bill will make the Commonwealth legislation in some ways the most beneficial piece of legislation in this field and fully comparable with State legislation in most respects. Before proceeding to outline some of the improvements in existing benefits that are proposed and the new benefits that the Government intends to introduce, I want to mention the Government’s proposals to vary the form of administration of the Act and the appeals provisions.
In relation to the first of these the most significant change proposed is to establish the office of Commissioner for Employees’ Compensation as a full-time statutory office in lieu of the existing arrangements under which the office of Commissioner is vested in the Secretary to the Treasury. Associated with this change it is proposed, as was announced by His Excellency the GovernorGeneral, that the ministerial responsibility for the Administration of this legislation be transferred to the Minister for Social Services.
As to appeals, at present a claimant may appeal from a decision of the Commissioner to a county court and thence to the High Court. As an alternative to the existing appeal to a county court in the first instance, review of claims by a special appeal tribunal will be provided. There will then be a further appeal from the decision of an appeal tribunal or a county court to the Commonwealth Industrial Court, where it is envisaged that the appeal would be to a single judge, except when the Chief Judge directs that the matter be heard by a full bench of that court. A further and final appeal from a decision of the Commonwealth Industrial Court will lie to the High Court, but only by leave of that Court.
I come now to the improvements in benefits and the new benefits that are proposed. Several of these will be of considerable assistance to the family man. Provision ls to be made for the allowance for a dependent child, which at present ceases when a child attains the age of 16 years, to be paid for a student child of either a deceased or an incapaciated employee up to the age of 21 years. Provision is also to be made for payment of the respective allowances in respect of post-injury dependants, that is, the wife and children of a marriage contracted by an employee subsequent to his injury. At present the allowances are not payable for such dependants.
In regard to medical expenses and medical treatment, it is proposed as was foreshadowed during the debate on the Commonwealth Employees’ Compensation Bill 1967, to repeal the provision which specifies that a maximum amount is payable by way of medical expenses. It is further proposed to remove the existing restriction on payment of expenses incurred in travelling to receive medical treatment. At present, reimbursement of such expenses is made only if the employee travels by ambulance or between places not less than 15 miles apart. Moreover, the definition of medical treatment’ is to be extended to include treatment and maintenance of an employee while he is a patient at a rehabilitation centre operated by the Commonwealth Rehabilitation Service. lt seems to me appropriate to mention here that provision is to be made for reimbursement of the cost of repair or replacement of artificial members and artificial aids damaged or destroyed as the result of an accident, regardless of whether the employee suffers personal injury in the accident. The classes of persons eligible for the benefits of the legislation will be extended. For example, compensation will be payable to those persons injured while travelling to or from a pick-up centre or while attending a pick-up centre and who were previously employed by the Commonwealth, after engagement under the pick-up system, and, who have not subsequently been engaged by another employer. Holders of statutory offices, members of Commonwealth authorities, members of committees appointed by the Government, some of whom render service to the Commonwealth for little or no remuneration and certain classes of voluntary workers, for example, bushfire fighters in the Australian Capital Territory, will become eligible for benefits under the Act.
The schedule of specified injuries, at present the third schedule, will be modified to eliminate the existing distinction that is maintained between left and right upper limbs, that is, the amount now payable for the loss of a right arm, hand, etc., will also be paid if an employee suffers the loss of his left arm, hand, etc. Provision will be made for lump sum compensation for the loss of the power of speech, for facial disfigurement and for the loss of genital organs or complete and permanent loss of sexual function.
Two other changes are proposed in the method of assessing compensation for specified injuries. The first relates to compensation for loss of sight and will mean that compensation paid for loss of sight as a result of an earlier injury will not be taken into account when calculating the compensation payable for the total loss of remaining sight resulting from a later compensatable injury. The second change will vary the present requirement that, when an injury results in the permanent but partial loss of efficient use of a part of the body, the assessment of the degree of partial loss of efficient use must be made in relation to the employee’s employment at the time of the injury. Instead, it is proposed to provide for the assessment to be based on the degree of diminution of use of the affected part, except where an assessment on the basis of loss of efficient use in relation to the employment at the time of the injury would provide a greater benefit for the employee. In most cases these changes will permit larger lump sums to be paid than is now possible.
The Act currently provides in a number of places for claims to be determined by the Commissioner exercising a discretion, and from such decisions there is no appeal to the court. For example, the present law gives the Commissioner such a discretion in cases arising out of travel during or after any substantial interruption of an employee’s journey to or from his employment, or any substantial deviation from the shortest convenient route for the journey. The Commissioner is empowered to accept liability if he considers that in the particular circumstances of any case, the nature, extent, degree and content of the risk of accident was not materially changed or increased by reason only of a substantial interruption or deviation. Under the proposed Bill, however, it will be possible for a dissatisfied claimant to appeal from any such discretionary decision of the commissioner.
While on the subject of legal proceedings I think I should mention also that it is proposed to specify 3 years in lieu of 12 months as the time within which an employee, or his dependants in the case of death, may commence proceedings for damages against the Commonwealth after having received compensation under the Act. A considerable number of other changes is proposed but 1 prefer not to go into them in detail at this stage. Some are only of a minor nature, but they will, nevertheless, remove anomalies. Others are more or less machinery amendments designed to facilitate the administration of the Act.
In conclusion, I wish to say that the proposals for amendment of this legislation put forward by the Opposition were carefully examined and as honourable senators will no doubt have realised from what I have said earlier, a number of these suggestions has been adopted by the Government and provision will be made accordingly in the new Bill. I present the following paper:
Commonwealth Employees Compensation Act - Ministerial Statement, 12 June 1968. and move:
That the Senate take note of the paper.
Debate (on motion by Senator Cohen) adjourned.
– by leave - I have had circulated a statement by the Postmaster-General (Mr Hulme) relating to frequency modulation broadcasting. I ask for leave to have the statement incorporated in Hansard.
– There being no objection, leave is granted.
– Honourable senators will understand that the pronoun “I” in this statement relates to the Postmaster-General. The statement is as follows:
Honourable members will recall that, shortly before the House rose late last year I intimated that I would make a statement in the House on the subject of frequency modulation broadcasting. In accordance with that undertaking I propose now to trace briefly the history of the investigations which have been made into FM broadcasting in this country and to make some comments also on the Government’s attitude toward the representations it receives for the introduction of the facility as a regular service.
First, lel me make the point that all sound broadcasting services in Australia, that is the internal national and commercial broadcasting networks, operate with amplitude modulation in the medium frequency band. Apart from the fact that this band is already substantially occupied, the technical characteristics of FM make it suitable for use only in the very high frequency or ultra high frequency bands. As to television, AM is used for carrying the picture portion of a programme, while FM is employed for the sound portion.
In 1947 it was decided to carry out trials wilh FM broadcasting . in : the very high frequency band, principally to enable a study to be made of the propagation effects of FM in typical areas and, also, to obtain experience in the design and performance of FM equipment - both transmitting and receiving. ‘ This decision stemmed from a report by a parliamentary standing committee on broadcasting. Experimental transmitters were set up by the Post Office, first in Sydney and Melbourne and. later, in Brisbane and Adelaide. Transmissions in FM totalled about 84 hours a week from the experimental stations in the four cities. For part of each day the normal programme of one or other of the two medium frequency national stations was also broadcast through the FM transmitters.
In 1948, amendments which were made to the Broadcasting Act explicitly prohibited the use of FM by any commercial station. This prohibition was repealed in 1956. Following the repeal, the Australian Broadcasting Control Board held a public inquiry into the matter of ‘the introduction of broadcasting services by stations in the VHF band and using frequency modulation’. The Board, by advertisement in daily and trade newspapers, invited evidence from interested people and organisations. Only nineteen persons presented evidence although a number of written statements were received. On the evidence submitted, the Board concluded that there were no practical objections to the introduction of FM broadcasting, one of the main difficulties stemming from the fact that television services had commenced in the capital cities and was to be extended to a number of country areas - a development which affected basically the matter of frequency channels available in the VHF band.
Honourable members may recall that the 1954 Royal Commission on Television had recommended that TV should be developed in the VHF band. Although at the time of the Commission’s report only seven VHF channels were available for this purpose, subsequent re-allocations made three additional channels available - a total of ten. When the Government decided to extend television to thirteen country centres, and to provide for a national and at least one commercial station at each centre, it became clear that ten channels would be insufficient for proper development in the future of TV in the VHF band. The extraordinary popularity of television in the capital cities and the desire for alternative programmes had demonstrated a likely need for a greater number of stations in the various centres than had been envisaged previously.
This problem was investigated thoroughly by a technical conference arranged in 1960 by the Australian Broadcasting Control Board as part of its hearing of the applications made for commercial television licences for thirteen provincial and country areas. The conference was attended by a number of the applicants, a number of manufacturers, representatives of the Post Office and the Australian Broadcasting Commission. One of the questions posed was whether adequate space could, in fact, be found for television to expand within the VHF band or whether a partial or complete transfer to the UHF band might be necessary. The general view of the conference was that TV should be extended within the VHF band and that the Postmaster-General should bc asked to see how many VHF channels could be made available for its development.
In its report to the Government dated August I960, the Australian Broadcasting Control Board, after considering the views of the technical conference, expressed the view that thirteen VHF channels would be necessary for TV expansion and that the 92-108 Mc/s reserved for FM broadcasting might be used to provide two of these television channels, if required. The Board pointed out that the alternative to making sufficient VHF channels available for television was to use channels in the UHF band immediately, a course which had been strongly opposed in many quarters and which experience overseas had shown to have inherent disadvantages for TV as compared with the VHF band.
In the meantime, the then PostmasterGeneral, Sir Charles Davidson, had announced his intention of appointing a Radio Frequency Allocations Review Committee to examine the allocation of frequencies for all types of radio services following an International Frequency Conference in 1959 in Geneva. That Committee, which was set up under the chairmanship of Professor Huxley, was asked to suggest, among other things, methods by which additional TV frequencies could be obtained. In its examination of the frequency problem as a whole, the Committee found among other matters that the number of fixed and mobile radio services used by business, industrial and professional organisations and by essential services was growing rapidly.
From 1955 to 1960, for example, the number of such services licensed had increased over 200% from less than 8,000 to 24,013. On indications at the time, it would be necessary to accommodate a further 20,000 stations, within the next 5 years, in the VHF band. While it would not be impossible to transfer some of these, or to allot new ones, to the UHF band, a number of very real difficulties were involved for many of these services due to the characteristics of UHF propagation. For instance the range of UHF mobile services, such as taxi services, is reduced compared with services operating at VHP, while at UHF there is an increased number of pockets of poor or very poor reception. While it was believed that some services of this kind must ultimately go into the UHF band, it was clear that there would still be a very serious problem in accommodating those which, for various reasons, must remain in the VHF band. Professor Huxley’s Committee concluded that, by using two channels in the frequency band which had been reserved for FM broadcasting, they could just barely meet the requirement’ of thirteen TV channels in the V.HF band and make reasonable provision for the growth of essential fixed and mobile services.
In the re-allocation of frequencies recommended by the Committee, that portion of the band 92-108 Mc/s which lies between 92 and 94 Mc/s was allocated to fixed and mobile radio services to meet the growing Government and commercial requirements for such services. The PostmasterGeneral stated at the time that he was aware of the suggestion that a frequency in the 92-94 Mc/s portion of the band might be made available to allow the FM transmissions to continue. However, quite apart from the reduction in frequency space for the fixed and mobile services which would result, undesirable interference effects to reception of television would occur in some areas. lt was therefore not possible to have thirteen channels for television in the VHF band and, at the same time, make adequate provision for the development of fixed and mobile radio services without closing down the FM broadcasting transmissions which had never been on anything but an experimental basis. Even were it practicable to continue operation of the FM stations in the VHF band, it would be quite impracticable to expand the service throughout the Commonwealth in that band because of the requirements for television and others, lt must be remembered that later, TV was extended to twenty more, country areas, to make a total of thirty-three areas outside the capital cities. Accordingly, the experimental FM! broadcasts in Sydney, Melbourne, Brisbane and Adelaide were discontinued in June 1961.
Following the announcement of the termination of the experimental FM transmissions, representations were made to the Minister, both directly and through other members of Parliament, by about 200 people. In addition,, the Minister received some petitions, one of which contained 400 signatures. The Control Board received about eighty letters from listeners many of whom were interested in high fidelity reception, members of the radio industry, trade journals, and so on.
As compared with AM, the principal characteristics of frequency modulation are first, that noise or static, whether it origin ates from natural or man-made sources, can be less serious in an FM system and, secondly, that FM provides a higher fidelity of sound which enables, for example, a musical composition to be reproduced in the full frequency range with an appropriately designed receiver. With these advantages as their guide, people who have urged the introduction of FM contend that it would benefit the country listener particularly and that broadcasting services generally would be improved. But it must be remembered, Mr Speaker, that if FM broadcasting were introduced in Australia, it could only operate in the ultra high frequency band, since I believe 1 have indicated quite clearly that there is no vacancy, if I can use that term, in the VHF band.
Now, it is quite true that the limited number of frequencies available in the medium frequency band does handicap the development of our broadcasting services, but on the other hand the great majority of the population receives a good national and a good commercial service. Some of the shortcomings in the MF broadcasting service can be overcome by the use of improved techniques such as directional aerials. The Australian Broadcasting Control Board keeps in close touch with technological research and development in regard to MF broadcasting and the results of the Board’s studies in recent years have been encouraging. Sixteen national and six commercial stations have been established since I960. Further I have recently, on the Board’s recommendation, approved the inviting of applications for the grant of commercial licences in the Gladstone area of Queensland and the Port Lincoln area of South Australia. This has been made practicable by the planned use of directional aerials by the proposed stations, and investigations in other areas are proceeding concerning both national and commercial services.
FM has certain merits including lower noise levels and higher fidelity of sound. While these characteristics are real they are not. in the opinion of this Government, sufficiently significant to justify the introduction of a new service. They would be valued, of. course, by a limited section of the community, such as music lovers and those who could afford the costly receiving equipment. But today’s radio programmes, which include a lot of pop music, open line programmes, news sessions and so on, would not make good use of the qualities of FM even if it were introduced. Furthermore, it must be remembered that the majority of broadcast receivers to-day are small portables and car radios. I understand that the British Broadcasting Corporation recognises the large size of the listening audience which use transistor receivers and has adjusted programmes accordingly.
Claims have been made of the superior characteristics of FM on the basis that the sound channels of television stations are heard better in many country areas than are medium frequency broadcasting stations. This is undoubtedly so in some areas but it must be remembered that most television viewers use efficient outside receiving aerials, whereas the general practice with broadcast listeners is to use indoor aerials or aerials incorporated in the receiver itself - as with transistor sets. The use of efficient outdoor aerials for medium frequency reception would in many cases result in a marked improvement in reception. lt has been claimed consistently that FM has arrived in many overseas countries and that Australia is lagging behind. Without a proper examination of the situation, one could come to this conclusion. But I submit that the stimulus to FM overseas has been not so much because of its intrinsic merits but because of the degree of overcrowding and interference in the MF band rising from very large populations to be provided with service. Interference and overcrowding to such an extent fortunately does not exist in Australia. In the United States of America it has been stated that some medium frequency stations are limited in coverage by signals from stations operating on the same channel to a distance of not more than about 4 miles at night time.
This is borne out by the fact that there are 4,000 stations in the MF band in the United Stales of America, whereas in Australia, in about the same land area, there are less than 200. There is evidence to show that the public has been slow to accept FM services overseas by the reluctance of people to purchase FM receivers which in general cost more than medium frequency receivers. It is understood that, in the United Kingdom, the number of FM receivers sold is only about one-third of the number of households. In the United States there is evidence that the popularity of FM services is growing but receiver production figures indicate that the MF services are still providing the basic service to the population. It is expected that this will be the case for many years to come.
I think it must be realised that the main justification for introducing a new system of broadcasting would be the inability to meet present deficiencies by expansion of an existing service. The shortcomings now present are relatively few and would not in themselves warrant the introduction of FM broadcasting with its wide implications. Such a step would involve high expenditure on the part of the Government which it would be difficult to justify and by the operators of the stations and the general public. Moreover, further development of other types of services such as MF broadcasting and television stations would be affected because of the resources which would need to be diverted to the new project. lt is the contention of my technical advisers that a sufficiently strong case on the grounds of inadequacy of the existing broadcasting service has not been made for the introduction of FM at the present time. Special experimental licences have been issued for experimental FM transmissions to be conducted in Sydney and Melbourne using frequencies in the UHF band. The grant of licences has been justified on the basis of the need to determine some of the unknowns in techniques and performance of UHF transmissions. lt is of interest to consider what would be the coverage achieved by an FM service in the UHF band. For many reasons, at least as far as the national service is concerned, the logical place to site UHF stations would be on the same sites as used for television stations. The same general technical requirements apply to sites as for television. Buildings, power and roads, which in some cases have been very costly, are available, and the same staff can be used. The establishment of a UHF station at each of the 39 national television sites would enable provision of service over an area embracing about 95% of the population of the Commonwealth.
However, because of the propagation characteristics of UHF, there would be more pockets of poor reception than with VHF requiring a considerable number of translator stations to adequately serve these pockets. Even with VHF sound broadcasting in the United States of America there are difficulties’ with aerials for portable receivers, including car receivers, and such difficulties would be more pronounced at UHF. Now, although about 95% of the population could be served by main stations supplemented by translators, certain areas where national service could do with improvement, would be no better off unless local UHF stations independent of television operators were established. Because of the distance of such centres from the larger centres of population and the limited population involved the economic question becomes of prime importance.
With regard to the commercial service it cannot be said that there are too few stations in the major capital cities. In some country areas, there are admittedly some towns of considerable population where the commercial service is of a marginal nature and if frequencies were available in the MF band there would be no difficulties in the establishment of commercial stations. As I have said earlier, some of the difficulties may be overcome by the use of directional aerial techniques. In any case, the number of these areas is not sufficiently large to justify the introduction of a new service. In some of the larger centres with only one commercial station, possibly a second commercial station could operate economically but again the number of such areas is not large.
With regard to the national service, whilst listeners in the capital cities and Newcastle have two national services available to them, the majority of country listeners have only one continuously available national service provided by regional stations. However, an alternative national service is available during night hours from the high powered capital city stations, and in outlying areas national service is provided from short-wave stations located in Sydney, Brisbane, Perth and Lyndhurst. The provision of two national programmes continuously available throughout country areas would require the introduction of a new type of service such as FM, but having regard lo the services now available, the introduction of such a new type of service would not be justified in this purpose.
I should here say that more than 95% of the population has available to it at least one good national broadcasting service, while 95% of the population has available television services. Although the needs of the people who are not served satisfactorily are recognised and, given time, some improvements will be made as far as they are concerned, it is to be emphasised that it is not they who would be the main ones to benefit from the introduction of FM. I might also say that in no English speaking country in the world is it claimed that all the population is completely served with broadcasting or television services.
It has been claimed by some proponents of the introduction of FM that the electronics industry needs such projects to keep the industry in a healthy state. Now, I repeat that the principal advantages claimed for FM are high fidelity and freedom from noise, but neither car sets nor portable sets would, I believe, sell to the public on those characteristics, because due to their limited size they are not designed for high fidelity reception, nor generally would they be used where the freedom of FM from noise would be important. The position could be different with sets of the other type, normally used in a fixed position in the home, but these account for only about onequarter of production. They are, of course, the more expensive sets and it is probably in this category that the main market would be for FM. The market could, however, be disappointingly small.
It is, I think, also problematical to conclude that a great number of people would be persuaded to purchase special FM receivers or adaptors for the purpose of receiving programmes which would be little different in content from those available to them now. In any case, I would not regard this as a ground upon which to justify the introduction of a new type of broadcasting service. I hope honourable members will agree that, having regard to the situation as I have outlined it, a need for the introduction of FM broadcasting is not at present apparent.
I present the following paper:
Frequency Modulation Broadcasting - Ministerial Statement - and move:
That the Senate take note of the paper.
Debate (on motion by Senator Cohen) adjourned.
– I move -
That standing order 68 be suspended until the termination of the present period of sittings, to enable new business to be commenced after 10.30 p.m.
In proposing this motion I want to make it clear that because we sit until 11 p.m. we have, in the nature of things, a hiatus between 10.30 and 11, and if we do not succeed in carrying this motion we will not be able to introduce any new business before 11 o’clock if, for instance, we conclude debate on a matter at 10.35 p.m. I want to make it clear also that the successful passage of this motion does not prejudice the motion for the adjournment. If the Senate wants to continue after 11 o’clock it need only dissent from the adjournment motion. It is a matter for the Senate to decide. As I have said, this motion will merely enable us to introduce new business after 10.30 p.m. Any subsequent motion to proceed beyond the normal concluding time would need the consent of the Senate.
– The Opposition will not resist leave to the Government to introduce new business in the hiatus between half past 10 and 11 o’clock, to which the Leader of the Government has referred, but I should like to reiterate the remarks of the Leader of the Government that in agreeing to the motion now before the Senate the Opposition most certainly must not be taken as agreeing to sit beyond the appointed hours of the Senate. Whether the Senate sits beyond 11 o’clock is within the province of the Senate to determine, and nothing that the Opposition does in relation to the motion now before us must be taken as an agreement to sit beyond that hour. I do not want to repeat everything that I said last week in relation to this matter, but I think it should be noted that we are moving into a situation where we are still confronted with the same volume of business on the paper as we had last week. I direct the attention of the Government to that point.
– We would have been further advanced if we had had a more understanding government.
– All I say is that we still have the end of session rush. How the
Senate will deal with it I do not know. Perhaps the Government should be considering whether some of the Bills could stand over to the Budget session. I am not saying anything specific about that at the moment, but I want to make it plain that we are not happy about having the work compressed into a very busy last couple of days in the sessional period. I reserve my right to say more about that in the course of the next day or two should the occasion arise.
Question resolved in the affirmative.
Consideration resumed from 1 1 June (vide page 1627).
Proposed new clause 13c.
After clause 13a, insert the following new clause: 13c. After section 29b of the Principal Act the following section is inserted: 29ba. - (1.) Where a person claims to be exempt by reason of section twenty-nine a of this Act from liability to render service under this Act, he shall be deemed to be a conscientious objector pending the hearing and determination of his claim, and he shall not in the meantime be required to submit himself to a medical examination or to be called up for service under this Act or to render service under this Act. (2.) Where a person who has commenced to render service under this Act claims to be exempt by reason of section twenty-nine a of this Act from liability to render further service, he shall not be required to render service pending the hearing and determination of his application. (3.) Where a person claims to be exempt by reason of section twenty-nine a of this Act from liability to render service under this Act but declines to make application to have this question heard or decided under section twenty-nine b of this Act, he shall be deemed to have made an application under that section and the provisions of that section shall apply in the determination of his objection.’
Although this amendment is in three parts I think for convenience we could discuss them together. However they do involve separate considerations to some extent and, although we discuss them together, I suggest that they be voted on separately.
-(Senator Drake-Brockman).- Order! Is the Committee agreeable to Senator Cohen’s suggestion?
– No’. 1 have not had a chance to consider the suggestion and I want to consider it before agreeing to it.
– In that case I suggest that the Committee deal only with the first of my three propositions and debate them separately.
– They are all one.
– 1 want to make perfectly clear what this group of amendments deals with. We are attempting to deal with the position of the man who has applied or who wants to apply for exemption as a conscientious objector. We want to make sure that he does not get scrambled up in the machine before his .application is dealt with. Three separate situations are contemplated here. The first deals with the man who has not yet commenced service and who claims to be exempt; the second deals with the man who is already rendering service and wishes to apply for exemption whilst rendering service, or after he has commenced to render service; and the third deals with the man who claims to be exempt and refuses or fails to make a formal application to that effect. By this amendment we want to ensure that the man concerned has some proper basis on which to have his case adjudicated. Although there is a common principle underlying the three propositions, they are, in fact, separate propositions, and I would have thought that whilst we could debate them together, it would be possible for some honourable senators to take the view that one proposition should be supported, that another should not be supported and so on.
– Debate them together and at the appropriate time make the suggestion. Then, knowing what is proposed, 1 will consider it.
– I am obliged to the Minister.
– So far as the Chair is concerned. Senator Cohen has moved an amendment which contains three parts. Unless the Committee gives him permission to deal with them separately, we will take them as a whole.
– The Minister indicated to me that he was not prepared to concur in the suggestion that I made because he had not as yet had a chance to address himself to the purpose of the amendment.
– I have addressed myself to the amendment but not on the basis that the three parts will be submitted separately. If, after hearing the debate, there is merit in your proposal to take a vote separately, of course you will have my cooperation.
– 1 indicate at this stage that after the debate has proceeded I will in due course be moving that the three parts of the amendment be taken separately. Mr Chairman, at the moment I am bound by the view you have expressed from the Chair, but it is my view that they are separate proposals and that one cannot do justice to the position by scrambling them up together. .1 shall proceed to deal with the three parts of the amendment in order. The first reads as follows:
After section 29b of the Principal Act the following section is inserted: 29ba. - (1.) Where a person claims to be exempt by reason of section twenty-nine a of this Act from liability to render service under, this Act, he shall be deemed to be a conscientious objector pending the hearing and determination of his claim, and he shall not in the meantime be required to submit himself to a medical examination or to be called up for service under this Act or to render service under this Act.’
In the United Kingdom, under the 1948 Act relating to compulsory service, there was provision for provisional registration as a conscientious objector. In New Zealand there is a provisional register of conscientious objectors. There is no register of conscientious objectors in Australia. We have framed our proposed amendment to accord with the present administration of the Act. Instead of referring to enrolment in a provisional register or in any register of conscientious objectors, we say that a man shall be deemed to be a conscientious objector pending hearing and determination of his claim.
I shall indicate what I think is the scope of the debate. As a matter of law and not necessarily as a matter of administrative practice, there is at present nothing in the Act which prevents a person who has applied for exemption from military service, or from duties of a combatant nature if he wants to move from the area of a combatant to that of a non-combatant, from being required to render service before his application for exemption has been determined by a court. We debated this question at length last night. Assurances were given and there was an exposition of the existing practice. It was said that nobody will ever be subjected to the kind of treatment set out in the provision. But the fact is that cases have occurred in which difficulties have arisen. A man could be dealt with under the Act - punished under the Act - while his application was still pending. This situation becomes particularly important because of the extra penalties provided for in the new Act.
If this legislation is passed it will be possible for a man who has applied for exemption as a conscientious objector firstly to be punished under the proposed section 49a for failure to submit to a medical examination; he can be fined an amount up to $200 when convicted of not submitting himself to a medical examination. If he is then asked to enter into a recognisance and refuses to do so, he can be sentenced to 7 days imprisonment. That is the first offence he is capable of committing before his application for exemption as a conscientious objector has been dealt with - failure to submit to a medical examination, or an examination in the wider sense provided for earlier in the Bill.
Secondly, if this legislation is passed in its present form a person can be dealt with for failure to comply with a notice calling him up for service. As honourable senators know, a penalty of up to 2 years imprisonment is provided for that offence. Thirdly, he can be dealt with for failure to render service, and again a penalty of up to 2 years imprisonment is provided. Each of the penalties 1 have described can be awarded by a magistrate without a trial by jury. I do not want to be told that 1 am describing a fanciful situation. The fact is that the law provides no protection at present in the circumstances I have described, if we are to be told by the Government that in practice men will not be asked to submit to a medical examination - and [ have certainly heard no suggestion that in practice an applicant for exemption will not receive a call up notice or will not be required to render service - what is the difficulty about so providing in the Act? That is the purpose of our amendment. We are trying to achieve the position that a man who applies for exemption can be provisionally deemed to be a conscientious objector pending the hearing and determination of his claim. It seems to us to be an eminently reasonable approach. It is the practice in Britain and it is the practice in New Zealand. There can be no argument against it based on reason, I suggest. Nor would the Government, if its assurances are to be accepted, be in any way prejudiced. It would simply mean that we would have a basis for saying: ‘Here is an applicant for exemption on the grounds of conscientious objection. He must be regarded or treated as or deemed to be a conscientious objector until his application is successful or until it fails and all avenues of appeal are exhausted.’ We all, 1 believe, would think that there ought to be some further right of appeal.
This amendment would not broaden the category of conscientious objectors; it would simply provide a basis for saying: ‘Here is a man who wants to be treated as a conscientious objector. We must accept him as such until his application is determined.’ Otherwise we might have a situation in which a man is fined and perhaps imprisoned for failing to turn up for a medical examination or to submit’ to one, or fined or imprisoned for up to 2 years for failing to answer a call-up, with the tribunal in the end saying that it is satisfied he should be exempted because he is a conscientious objector. 1 cannot see how this can be regarded as anything but reasonable. As I say, it follows the practice in the two other countries I mentioned. I have a reference to the relevant sections of the British Act and the New Zealand Act. The Australian Council of Churches, in its most admirable report to the Government, some of which has been accepted, strongly presses for an amendment which would achieve what this amendment proposed by the Opposition is designed to achieve.
The second part of the amendment deals with the man who is already performing his national service. Sub-section (2.) of proposed new section 29ba reads
Where a person who has commenced to render service under this Act claims to be exempt by reason of section 29a of this Act from liability to render further service, he shall not be required to render service pending the hearing and determination of his application.
In other words, if a man who is performing his national service says: ‘I apply to be exempted under section 29a’, he should not be compelled to go on rendering that service until the process of determining his claim is concluded. He may have arrived at a genuine decision that as a matter of conscience, he can no longer perform his national service. [Quorum formed.] The second leg of the amendment is designed to ensure that a man who is serving and who applies for exemption as a conscientious objector shall not be pushed into continuing his service until his application has been determined. This also, I should think, is reasonable. A man should not be kept on performing service which a court or tribunal may later find was against his conscience in the sense in which the Act defines this. There is no question of broadening the definition of ‘conscientious objector’ here. We must proceed in the knowledge that the Committee has rejected our earlier amendment.
– Will not sub-section (2.) permit a serviceman who has been given an order to go to Vietnam, to put in a claim for exemption so that he then would not have to go?
– Of course it would do that, but we are saying that we must assume the bona fides of a man who makes such a claim. The claim has to be established. The man could be killed while waiting to have his application for exemption on the ground of conscientious objection determined. If it means that, I would be more determined than ever to press our amendment. 1 had not faced up to that particular situation but I would not shrink from it. I would hate, to have on my conscience the knowledge that a man who might ultimately be declared, even posthumously, to have been a conscientious objector had been forced to go into service and to take part in battle, to kill or be killed, before his application was determined. That is all. -It is a matter of judgment - a matter of a point of view. I would not shrink from the implications of our amendment. The conscientious objector may be a man who is serving in camp in Australia or who may be already in Vietnam or about to go there, if he makes an application to be treated as a conscientious objector he should not be pressed into service as though that application will fail. The- application may or may not fail, but the applicant should not be treated as a person who does not hold a conscientious belief.
– What if he is already in Vietnam?
– Again one would have to face up to this possibility. I would hate to think that a man who was a genuine conscientious objector was killed while waiting to have his case heard.
– lt is apparently all right with the honourable senator for someone who is not a conscientious objector to be killed.
– Senator Branson is misrepresenting conscientious objection. I thought it was common ground in this place that the genuine conscientious objector was to be accepted by anybody, no matter what his views were.
– Even if he finds out after he gets to Vietnam that he is a conscientious objector?
– That may happen. I would think that many men might feel when they get into actual combat that it is something which is morally wrong. Many people feel this way and perhaps they need to face up to their feelings when they get into battle.
– Order! The honourable senator’s lime has expired.
– Senator Cohen invited us to debate the Opposition’s amendment as a whole. The amendment seeks to insert in the Bill a new clause providing for the inclusion in the Act of a new section comprising three sub-sections. The honourable senator suggested that we vote separately on each proposed sub-section. It is obvious, now that he sees the pattern of the three proposed sub-sections clearly in his mind, that he is not enamoured of the picture, lt is obvious that Senator Cohen is seeking to make, under this and various other proposals that he has submitted to the Committee, a determined effort, in the interests of the Victorian Executive of the Australian Labor Party, to destroy the country’s effort in Vietnam and to detach Australia from any link with American forces.
– That is absolute nonsense.
– I am entitled to use. any argument that 1 see fit. If Senator Cohen is loyal to the argument that he advanced over the last week-end, he must admit the validity of what 1 am now saying. We should examine the proposals that the honourable senator has put before us to see what is their true import.
– This is like the Minister’s impudence.
– The honourable senator is even now flinching from the true intention of the proposals. Let us examine each of the proposed new sub-sections. The first proposal is that a man who claims to be a conscientious objector should be deemed to be a conscientious objector pending the hearing and determination of his application and that he should not in the meantime be required to submit himself to medical examination. Senator Cohen, as an astute lawyer of the Melbourne bar, will be only too conscious of the fact that, in a matter peculiarly within the knowledge of a person claiming exemption, the onus of proving his conscientious objection rests with the applicant. The proposal advanced by the Opposition demands the most cautious consideration to determine whether it is an indirect attempt to reverse the present statutory provision regarding onus of proof, and to have the law recognise an applicant as a conscientious objector pending determination of his application and not to require him to submit to medical examination.
Senator Cohen’s second proposition is that where a person has commenced to render service although he claims to be a conscientious objector he shall not be required to render service pending the hearing of his application. That means that, where a person has commenced to render service, simply by his own say-so, upon filing an application to be considered a conscientious objector, he gives himself an automatic excuse for not rendering service. What an unreasonable situation it is when the national interest is to have a strong national service and Senator Cohen’s interest is to destroy that service in the interests of the politics that we have heard over the last weekend.
– I hope the Minister will not make the same allegation against the Australian Council of Churches.
– The honourable senator may lean towards the microphone as much as he wishes, but he must bear the responsibility not only for his actions but also for his politics. His third proposition is even more curious. It is that where a person claims to be exempt by reason of section 29a from liability to render service under the Act but declines to make application to have the question heard by a tribunal, he shall be deemed to have made an application under that section and the provisions of that section shall apply in the determination of his objection. These are means of subverting the Act.
What the Government’s legislation and the Government’s opposition to these amendments say is this: First of all, young men whose twentieth birthday falls in a particular half-year are required to register within a certain time after that. As Senator Greenwood read from the registration form last night, they are fully advised as to their right to apply to be considered as conscientious objectors and as to the way in which they can make application. From the time they receive their registration papers they know of their rights in this respect. From the time they register until the time they are balloted in, then from the time they are balloted in until the time of their medical examination and then from the time of their medical examination to the time of their call-up they have the right to apply to be considered as conscientious objectors. In pursuance of the amendment that the Committee passed last night, even after they have been called up they have an unfettered right to establish their conscientious objection irrespective of the period during which the belief was formed.
I would have thought that any person in this Parliament who had any solicitude at all for creating an armed force for the defence of this country would see that in that procedure, which is the true substance of the Government’s legislation, there are ample opportunities for a man who has a conscientious objection to military service to make application to be considered as a conscientious objector by a court and not to be prejudiced by anything that is in the Act at the present time. As soon as such a person has registered he may apply; after he is balloted in he may apply; after he is medically examined he may apply; and after he is called up he may apply. But Senator Cohen wishes the situation to be that as soon as such a person has applied he is deemed to be a conscientious objector and that, if he docs not apply but claims to be exempt and will not employ the procedures laid down in the Act to get his case before a tribunal, we should resort to some fiction and lie should be deemed to have made an application.
Nobody can look at this amendment without seeing in it a most mischievous undermining of the Act. The Act, as at present in force, gives ample opportunity to the conscientious objector, through all the stages to which I have referred, to have his claim to be considered as a conscientious objector dealt with by a’ court and a judge. Under a proposal which is to come before the Committee later this morning and which is designed to extend the right of appeal, after an application on the ground of conscientious objection has been considered by a magistrate it may be taken on appeal to a Supreme Court judge, or on questions of law to a Supreme Court of three judges, or by leave on questions other than questions of law to a Supreme Court of three judges. Therefore I submit that it is abundantly plain that there is no merit in the amendment moved by Senator Cohen. I ask the Committee to vote on it and also to debate it as one proposition.
– I regret that the Minister had adopted the tone that he had adopted in his argument. There seems to be an attempt to pin some unworthy motives on me as the mover of this amendment. 1 emphatically reject any imputations of the kind that Senator Wright has seen lit to cast. 1 remind him that the proposal that I am putting forward emanates from the special committee of the Australian Council of Churches. No doubt the members of that committee would be very interested to hear a responsible Minister of the Crown - the Minister in charge of the conduct of this Bill in this chamber - attacking their motives as an attempt to destroy the Bill and an attempt to destroy national service, and accusing them of being in some way mixed up with party politics!
– The honourable senator’s proposal is not precisely the same as that of the Australian Council of Churches; far from it.
– My amendment does the best it can with the present administration of the scheme. I suppose I could have moved for the creation of a register of conscientious objectors. I am suggesting to honourable senators that in effect that is what I am doing. The language is nol quite the same because there is not a register of conscientious objectors. 1 am pleading for the same protection for the conscientious objector in Australia as applies in Great Britain, as applies in New Zealand and as is recommended by the special committee of the Australian Council of Churches. 1 do not care how much the Minister insults me or the views that I am putting forward; those views are shared and applauded by a very significant section of the Australian community. Recommendation No. 6 from the special committee of the Australian Council of Churches reads:
That the Federal Government be asked to amend the National Service Act 1951-1965, and the Regulations under the Act, so that:
an applicant for exemption as a conscientious objector be immediately provisionally registered as a conscientious objector pending the hearing of his application, and be not listed on the national service register as a person liable to bc required to submit himself to a medical examination or to be called up to render military service.
Leaving aside niceties of language, I would be very interested to hear whether the Minister can suggest any real distinction between the sentiment of that recommendation and what I am putting forward on behalf of the Opposition in this Parliament.
– The special committee did not state that a man should be deemed to be a conscientious objector.
– I know they do not and I have dealt with that. If the Minister tells me that the Government is prepared to have a provisional register of conscientious objectors or a register of conscientious objectors I will be delighted and I will move for the postponement of this clause and will draft an amendment which will bring it precisely into line with the British system. But we would have to have a dozen other consequential amendments. If the Government is interested in the spirit of this amendment, I am prepared to move in that way. I do not think we need to get this Bill through in this sessional period. We could leave it until the Budget sessional period if. the Minister is interested in my proposal. I think it is worth examining. I do not want my proposition to be rubbished by anyone and certainly not by the Minister in charge of this Bill. The views I hold arc shared by my Party and by significant and responsible sections of the Australian community.
I now come to the second proposed sub-section of proposed section 29ba. The Australian Council of Churches recommends that following the application of a serviceman - and that is my second leg - to be exempted as’ a conscientious objector, he be forthwith suspended from all duties until his application and any appeals arising therefrom have been determined. ls what 1 am suggesting any different from what is in that report? ls the Australian Council of Churches to fall under the Minister’s besmirching, heavy brush? Are people who are genuinely concerned with the rights of conscientious objectors to be insulted by having improper motives imputed to them? 1 will not stand for this and 1 know many people outside this Parliament will not stand for it either. The Government does itself no good by attempting to ride roughshod over the views of people who are seriously concerned about this issue.
I did not have a chance to address myself to the third sub-section when J first addressed the Committee, because I did not have sufficient time. Sub-section (3.) of proposed section 29ba in this amendment reads:
Where a person claims to be exempt by reason of section 29a of this Act from liability to render service under this Act but declines to make application to have (his question heard or decided under section 29k of this Act, he shall be deemed to have made an application under that section and the provisions of that section shall apply in the determination of his objection.
What we seek to do here is to deal with a rather odd case, the unusual case, in which, occasionally, a young man says that he will have nothing whatever to do with national service. He does not register, answer correspondence or apply for exemption as a conscientious objector. He says that because he does not recognise national service he will not have anything to do with it. He says: ‘I am a conscientious objector and 1 will not have a bar of this Act or of service under it’. Again, my amendment follows the pattern of the British National Service Act 1948. Section 17 (7) of this Act states:
The Minister may provisionally register in the register of conscientious objectors any person subject to registration notwithstanding thai he has refused or failed u> make any application in that behalf, if in the Minister’s opinion there are reasonable grounds- I emphasise the words ‘reasonable grounds’ - for thinking that he is a conscientious objector, and the Minister may refer the case of that person to a local tribunal; and thereupon the provisions of this section shall have effect in relation to that person as if the necessary applications had been made by him, and references in this section to the ‘applicant’ shall be deemed to include references to him.
– A highly different proposition.
– lt is not basically different in principle. I can assure the Minister that if he is prepared to accept the general spirit of what I am putting forward and is prepared to say that the Government will have a register of conscientious objectors or a provisional register, and will deal with matters in the way they have been dealt with in the British Parliament, there will be no difficulty in pooling our common resources and attempting to do something to improve this Act. I am not deterred by the offensive remarks that have been made.
– They were not offensive.
– J found them offensive, 1 can assure the Minister.
Senator Sir Denham Henry ; But the honourable senator finds everything offensive.
– No, I do not. The honourable senator knows that I am a most reasonable man to get on with. The Minister cannot swing the cat so widely and hope to get away with it. He will offend a lot more people than myself in taking this attitude. I am asking the Committee to accept this amendment, not as one containing all the vices that are attributed to it by the Minister, but as a serious proposal that deserves to be seriously considered. I repeat that if it is within my power to persuade the Committee to have these proposals voted on separately, I will do so. I would have thought, for example, that the first of the sub-sections in proposed section 29HA was in line with what the Government wishes. I believe there would be no difficulty about this. The second sub-section is perhaps more debatable. There has been reference, to the possibility of a man holding a conscientious belief under serving conditions. Although I support all three of the sub-sections, it could be that some senators support the first and not the second or third. I do not know. Although the three sub-sections deal with the same general problem, they represent three specific proposals and in my opinion they should be dealt with separately
– I interpose very briefly, not, of course, with any suggestion that I wish to speak on the legal aspects of the amendment before the Committee. I was amazed to hear coming from the leader of a responsible party certain statements and arguments that were advanced by the Deputy Leader of the Opposition (Senator Cohen).
– What were they?
– I suggest that the honourable senator contain his soul in patience. First of all, I think it was made quite clear by the Minister that a conscientious objector has available to him all the means that are reasonable and fair to enable him to establish first of all the trustworthiness of his claim to exemption from service on the ground of conscientious objection and to have his application determined. The conscientious objector can establish his conscientious objection by four or five different processes. Surely this is reasonable enough.
I am still at a loss to understand why the Opposition is going to all this trouble in an effort, not to help Australia’s war effort but, indeed, to hinder it. It is as plain as that. All of the Opposition’s sympathy has been wasted on, as I said before, misguided individuals. I recognise that some of them are genuine. But why has the Opposition used all its energy and eloquence on behalf of these people? The Opposition should have been encouraging the young people of Australia to do their duty - the duty of every young Australian - to protect not only their country but also their own families. For the life of me, I cannot understand the attitude adopted by the Opposition.
I now come back to Senator Cavanagh’s interjection. The Deputy Leader of the Opposition implied that a chap in Vietnam should still have the opportunity of testing his claim to being a conscientious objector. It is completely beyond my comprehension - which might be limited, but I am not arguing about that - that a man who, in most cases, would have been in service for 12 months before he went to Vietnam, after having been there for 3 months to 6 months, might decide that he has a conscientious objection, that everything should be dropped and that he should be released from any service during the period he is in Vietnam until his claim is heard. I put to the Deputy Leader of the Opposition: It is not beyond the bounds of reason, surely, that some fellows in Vietnam, under the circumstances that 1 have mentioned, after 12 months training in Australia and after 3 to 6 months serving in Vietnam, become tired and say: ‘Here is an opportunity to get out’. I do not want to insult the fellows serving in Vietnam by suggesting that many of them would take this attitude. But there could be a few; and Senator Cohen says that such men should be protected. I have never heard anything so ridiculous in all my life. The fact that this suggestion comes from a man with the legal experience of the Deputy Leader of the Opposition leaves mc amazed.
– What do you say about the man who applies for exemption and is then called up? Do you think he should be exempted?
– The argument put up by the Opposition is that a man in the services in Vietnam should be released from his duty up there until his case is heard. This is the point I am attacking. For the life of me I cannot see the Australian Council of Churches advocating such a silly proposition.
– It has done so.
– No, it has not. The Council of Churches did not mention, as did the Opposition, the right of a man to object after commencing to serve in Vietnam. I defy Senator Cohen to show me where it did. I feel quite sure in my own mind that if the Opposition were in government today it would not be’ advancing the argument it is advancing,- because it knows very well that if the amendments it is proposing were put into effect the Act simply could not operate. Our Army is a good Army, but it is being kicked from pillar to post chiefly by members of the Opposition. For heaven’s sake let us give the men in our Army some encouragement and not put obstacles in their way.
– I point out to honourable senators that the amendment we are considering proposes the insertion of a new clause 13c. As the amendment which proposed the insertion of a new clause 13b was defeated, the new clause now proposed to be inserted will become clause 13b. 1 wish to make it clear that I shall be referring to it as such when I put the amendment.
– The Australian Democratic Labor Party will not be supporting any of the proposed sub-sections, nor will it support the proposal that they be taken separately. We have examined the amendments and we do not think they are realistic. Senator Gair and 1 are not lawyers, but we have been intrigued by proposed section 29ba (I.), which provides that when a person claims exemption he shall be deemed to bc a conscientious objector pending the hearing df his application. I. understood that the purpose of the hearing was to determine whether he was a conscientious objector. That may be the language of the law, but it: seems to me to be very strange language to say that a man is to be deemed to be a conscientious objector until he goes before a tribunal which has to determine whether he is one or not. lt seems to me that it would have been better to propose that a man claiming exemption should be deemed to be an applicant for exemption and should be treated as one, or something like that.
I am sorry in a sense that Vietnam has been brought into this debate, because genuine pacificists are very unhappy about the fact that some people who have political axes to grind have confused the question as to whether a man is a straight out conscientious objector to war with the question as lo whether a person who simply objects to the war in Vietnam can be regarded as a conscientious objector. Genuine pacifists are not very happy because they feel that associating objectors with Vietnam has complicated the claim of the genuine conscientious objector. One man expressed his view very strongly to me in a letter yesterday. He said that in his view people who “object only to the war in Vietnam are not conscientious objectors. He said they are objectors to the war in Vietnam and they claim they should not be allowed to prejudice and complicate the claim of the genuine conscientious objector to war.
– We defeated that.
– I know it was defeated, but at the same time the Australian Labor Party has indulged in a good deal of argument on this. The case of the conscientious objector was not strengthened by the introduction of the Vietnam issue. Proposed section 29ba (3.) appears to me to be one which could make the operation of the Army in war entirely impossible. Let us take the example of a soldier in Vietnam who might be instructed by his officer to use a machine gun to give covering fire to his troops while they are advancing. They might advance and all be shot down without one shot being fired from the machine gun. His officer might then ask him: ‘Why did you do this?’ The soldier might say: ‘I determined that 1 was a conscientious objector. Under the Act [ am not liable to render any more service, so I downed tools.’ There has to be a limit to what we can do. The Opposition has brought in the case of the man who is in Vietnam, but it is entirely unrealistic to suggest that when an army is in operation in the field against a very bitter and determined enemy it should be possible for a man to say: ‘I am now a conscientious objector. 1 am out of it. Carry on, boys, but 1 am not going to do anything.’ That indicates how ridiculous this amendment would be if it were carried to that point. For that reason we cannot possibly support it even though we have done our best lo assist the conscientious objector in other respects.
I have been interested in the references to the views of the Australian Council of Churches, and to hear the Pope and other church leaders quoted. It interests me, because for 10 years I have listened to members of a political party in this place say definitely that the church should keep out of politics.
– That is not politics; that is morality.
– I know it is not politics when the churches are on your side.
I have heard many people say they are against church interference in politics. As a result ot experience I have discovered that people are not opposed to the churches interfering in politics but they are opposed to the churches interfering in politics in support of the other side. That is the distinction. I realise that this question of conscientious objection is a difficult one. Other countries have found it to be so difficult that they have done nothing about it; but that does not absolve us from the obligation of doing what we can. I think that Senator Cohen has been quite justified in putting forward the case for the conscientious objector as he sees it. I am pleased that he is doing so, particularly in the light of a decision that was made by his own Parly in Victoria over the weekend and which put him in an invidious position. I am pleased to see him fighting so well for the conscientious objector. He has been saying: ‘Mv Party and 1 stand for the conscientious objector’. At the weekend his Party carried a motion supporting legal abortion in certain cases but, according to a report 1 have, the conference rejected a proposal that any parliamentarian with a conscientious objection to abortion should not be required to vote in favour of it. In view of the fact that the Victorian Branch of the Australian Labor Party, of which Senator Cohen is a distinguished member, decided at the weekend that there was no justification for conscientious objection on a certain issue and that no consideration should be given to one of its members who had a conscientious objection, it is wonderful to see Senator Cohen here today putting up a fight in opposition to the principle then affirmed.
Senator Sir DENHAM HENTY (Tasmania.) [1.1.29] - I wish to make only one point, because it has already been stated in this chamber that the string of amendments which have been coming from the Opposition are designed to destroy the operation of the National Service Act. The longer 1 am here the more convinced 1 am that the objective of the Opposition is to destroy the operation of this Act. In supporting the amendment Senator Cohen submitted that a man who applies for exemption should be deemed to be a conscientious objector until such time as his application is heard. That is the first point that is made. If the applicant is undergoing service he has to be exempted from service until his case is heard. In addition, he may make any number of applications. There is no limit to the number of applications that he may make. What a glorious case for the bludger. He goes along and says: ‘1 am making application as a conscientious objector. Under Senator Cohen’s amendment I must be deemed to be a conscientious objector until such time as my case is heard. I am serving at the moment but 1 must be freed of my duty to serve until my case is heard. When my case is heard and my application is turned down I will make another application straightaway; I will then be deemed to be a conscientious objector and will not have to serve until the second case is heard. As soon as that case is heard I will make another application because there is no limit to the number of applications that I may make.’
This is the last thing that a genuine conscientious objector would want. No-one will say that senators on both sides of the chamber have not expressed themselves quite clearly as being on the side of the genuine conscientious objector. We have fought for the principle over and over again. We agree with it. We believe that a boy knows his attitude long before this position arises. He may finally form a decision afterwards. We know that such people come from religious families, that they have great Christian beliefs which impinge upon their judgment to the extent that they cannot render military service conscientiously. Everybody has a full realisation of this. The last thing that a genuine conscientious objector would want is this phoney amendment of Senator Cohen’s, which would give the bludgers - everybody knows that in the Army there are a certain number of them - an opportunity to get completely out of serving.
All that such a person would have to do would be to make application and say: Boys, I have made an application. I must be deemed to be a conscientious objector. Never mind the fact that I have not mentioned it before. That does not matter at all. I am out of it. I am serving now and f cannot be called upon to serve any more. Do not make any mistake about this because [ have made an application and as soon as it is heard and turned down - because it is a phoney application - I will make another application, and I still will not have to serve because I still must be deemed to be a conscientious objector.’ That would destroy the working of the National Service Act. It would destroy any possibility of the continued operation of a defence force, and that is the objective of the Australian Labor Party Opposition in the amendments which have been proposed by . the Victorian senator.
– That will not help you. It is cheap.
– Is not the honourable senator from Victoria?
– Yes, , and 1 am proud lo be.
– And I am proud to be a Tasmanian but I would not be proud to be putting up the amendments that the honourable senator is putting up. 1 would be ashamed of them.
– I feel that I am forced into this debate by the trend that it has taken and by the encouragement that Senator McManus gave Senator Sir Denham Henty to make a vicious attack in relation to a question of humanity, and also by the attitude of both Senator Sir Denham Henty and the Minister for Works (Senator Wright) in imputing improper motives for the amendment. As the Deputy Leader of the Opposition (Senator Cohen) has stated, the Australian Labor Party is inspired by such bodies as the Australian Council of Churches and by the United Kingdom Act of Parliament. It was for the very reason that there may be a reluctance on the part of Government senators and other senators to carry an amendment that might support bludgers, as Senator Sir Denham Henty has termed a section of the Army, that Senator Cohen has made an appeal for separate votes on the three issues. Whatever may be said about the second and third proposals, in relation to the first proposal there is no question of the bludger coming into it. Let honourable senators opposite think of the remarks that they have made during this discussion about the human rights of the individual who has genuine conscientious beliefs. Consider the case of the applicant who has genuine conscientious beliefs that prohibit him from giving service or from participating in any force which has defence or war for its purpose. Is he not entitled to establish those beliefs before the provisions of the Act are enforced upon him?
Consider the first proposal and the claim of the genuine pacifist whom honourable senators opposite say we are trying to ridicule. Is the Government’s attitude deserving of consideration? Why would (he Government not permit a vote on the first proposal, which provides that a man who claims to be a genuine conscientious objector before he is called up for service will have no more claims upon him until an impartial tribunal, a court of the land, can decide upon his application? All the Government’s imputations of political motives fall down. This is a genuine proposal. The Democratic Labor Party previously supported the rights of the genuine conscientious objector. Now because questions of politics, perhaps, come into the consideration of some other provision the Government will not permit a vote on the first proposal alone. The Government will condemn itself by its own action if it does not permit that. Because the DLP senators feel that they could not vote for all of the proposals and could not refrain from voting in support of the first of them, all of the proposals are to be lumped together to assure that when a vote is taken there will be a majority for the Government.
The second proposal is that a person who has commenced to render service will not be required to continue to render service pending the hearing of his application. It is suggested that possibly there will be bludgers and that there might be occasions when the implementation of this proposal would be against the interests of forces in action, but does anyone really think that this would happen? Are suggestions being made that we know are not realistic? Up to September 1966 only 333 applications for exemption as conscientious objectors had been made. Very few persons make that claim. Something must be lacking in the capabilities of the authority deciding fitness if a person who has passed a fitness test lets his platoon or group down in a battle. The claim that is made must be reasonable. There is no suggestion that anyone will leave the scene of battle and say: T have now decided that I have a conscientious objection to service’.
– How do you know that?
– Formalities and regulations would have to be complied with. An applicant would have to go through particular forms for the purpose of making his claim.
– I suggest that that is not so. He just claims; the amendment does not say anything about making application.
– The honourable senator is not so naive as to think that a person could go up to his commanding officer and say: T claim that I am a conscientious objector’, and the commanding officer would say: ‘You go back and sit in the sitting room’. Honourable senators know that the Government has power to make regulations under the Act and that some formalities would be associated with claiming to be a conscientious objector. That would have to be considered, possibly by an officer far removed from the actual field of battle. If honourable senators opposite regard the wording of this provision as a weakness, and if they want to protect the genuine conscientious objector, let them co-operate in determining wording that will provide adequate protection. Senator Cohen referred to the possibility of a genuine conscientious objector being killed in battle, not having had the opportunity of having his claim heard. 1 ask honourable senators to think of all the possibilities, particularly in relation to the few who may be affected. Let us consider proposed new sub-section (3.).
– This will be interesting, because under this section a person does not have to make an application. He just has to declare that he is a conscientious objector, and without making an application he is deemed to have made an application.
– Proposed subsection (3.) reads:
Where a person claims to be exempt by reason of section twenty-nine a from liability to render service under this Act but declines to make application to have this question heard or decided under section twenty-nine b he shall be deemed to have made an application . . .
This is the same principle as is contained in the provision which suggests that if a person will not register he is deemed to have registered under the Act, even though he fills in no form.
– Deal with the point that we are on at the moment.
– Senator Webster should have patience. Senator Cohen mentioned the person who is opposed to the National Service Act - who is opposed to conscription. He will do nothing to conform with the Act. He is conscientiously opposed to the Act. Do honourable senators opposite say that he should be carried off and forced into battle? They would never get any service out of him. Would it not be far better to have his claim heard, particularly if his conscientious belief is so great that it will not permit him to apply to the court for exemption from service as a conscientious objector? His attitude is: ‘T am accepting no favours; I am doing nothing under an Act to which I am opposed’. British history is full of persons who, because of their opposition to certain laws, have acted in such a way as to have caused reformations of the law. As a result we now have a system of law and justice of which we are proud. Cannot honourable senators opposite think of appropriate wording to protect those who may have genuine conscientious objections to fighting? They have not presented one valid argument against the first part of the amendment moved by Senator Cohen. If they have any sense of decency, are humane and believe in human rights, they will support the amendment. Surely they will not seek to deprive persons of the right to justice by linking this provision with clauses in respect of which they can present some argument.
– My view is that proposed subsections (2.) and (3.) are designed to wreck the efforts of the Australian forces wherever they may be fighting overseas.
– Let us examine these provisions. Firstly, I ask Senator Cohen whether he would be prepared to re-write the Australian military rules and orders, because this would have to be done if his amendment is successful. One of the things most feared by any man in uniform is his being charged with ‘ cowardice in the face qf the enemy which, of course, is a court martial offence. That charge no longer would apply because any man who cracked up under the strain and committed an act of cowardice in the face of the enemy would simply say: T have suddenly seen the light. I am a conscientious objector. I am not a coward.’ How could this man be tried? Are we going to have two sets of rules for our Army? Will this provision also apply to the permanent Army? I ask the Minister: Would this apply to soldiers serving in the permanent Army as distinct from those doing national service?
– Then a man who has joined the permanent Army will not be given this right and privilege, which Senator Cohen wishes to give to national servicemen, of saying: ‘I have suddenly developed a conscientious objection to this particular war.’
– We are talking about conscripts.
– .1 am saying that we would have a two-type Army. One section would have this right and the other section would not have it. 1 recall my own war service. As a platoon commander J had four machine guns under my command. The most important man on a machine gun is the No. 1 gunner. A man may have served for 12 months in Australia and have served quite happily. He may even have served in Vietnam. But then the position gets very hot and an order comes to occupy a forward position to give covering fire to troops. Word gets around that the machine guns are to be moved forward the next morning. Senator Cavanagh has suggested that a man cannot claim at any time that he has discovered that he has a conscientious objection. But the amendment clearly says that he can.
– His objection does not have to be made on any specific form or in any particular circumstances.
– That is right. A platoon commander may be ordered to provide covering fire for Australian troops but his four No. 1 gunners, knowing they are going to be in the hot seat, will be able to say: ‘Sir, we are not going to man the guns because we now have a conscientious objection to this war.’ In other words, the Opposition’s amendment would permit of cowardice which can happen in time of war to go unchecked. The reason one does not hear of it often is that the man in uniform fears nothing more than that he may be found wanting and may be found to be a coward. He has to face his fellow men with whom he joined up and he has to live with his conscience for the rest of his life. Because of that fear a lot of men who may have cracked up, do not do so and they make fine soldiers. I have seen that happen, and I know that the Leader of the Government saw if happen in Singapore. Under the proposed amendment any man could be an honourable coward because he will know that all he needs to do is to claim to be a conscientious objector in order to get out. I think that proposed sub-sections (2.) and (3.) are despicable provisions and, although I hesitate to say it, I do not think they have been introduced honestly. I believe they are designed to wreck our national service system and the Australian Army’s effort.
– I thought, when this debate started as capably as Senator Cohen initiated it on behalf of the Opposition, that the debate would have been short-lived. 1 do not propose to speak in any legal sense, but as a layman I believe there are certain fundamentals that we ought to have before us for proper assessment. Firstly, it was perfectly obvious when the Minister for Works (Senator Wright) came in this morning that he was violently angry. We know that he and his supporters want the sittings of the Parliament to conclude this week. We know that they have social engagements back in their own States and that they have other problems. We know equally that they want this controversial piece of legislation to be got out of the road as quickly as possible so that the public find out as little as possible about it, but the Opposition is going to debate it to the bitter end. The Government may not be prepared to accept our amendment, but at least the public and possible conscientious objectors will know that one political party has put up a battle for them.
I want to comment on some of the statements that have been made by honourable senators on the Government side. I clashed with Senator Greenwood here the other day on this Bill, but he has now come out with the classic of all time. He implied that he did riot care whether a prospective conscientious objector was killed while waiting for his case to be heard.
– I have not spoken on this amendment’.
– -We can draw no other inference from the statement that Senator Greenwood made.
– Order! Senator Greenwood says that he has not spoken on this amendment.
– He did this by interjection. I heard him say it. The Minister, in his petty approach, accused Senator Cohen of committing a mischievous act. This is not true. The Opposition will battle to the last word in this debate to see that conscientious objectors get the right to put their case. If there is a possibility of one man losing his life because the opportunity is not available to him to put his case as a conscientious objector, this is sufficient reason for the debate to proceed until we can provide an opening for these people to exercise their rights under the law and their rights under their conscience. As the matter stands at the moment, if there is doubt about a person’s conscientious objection, he is sent to gaol. This happened to Simon Townsend. The Army authorities had no compunction in having him sent to gaol while he was trying to have his case heard, and he was held in both a civil1 and a military gaol. If there is any doubt, the individual must have the fundamental right to have his case heard fully. If the decision is against him, that is a different matter. But the conscientious objector is a human being and he has the same rights as we have. But honourable senators opposite have shown earlier in this debate and again this morning that they would deny these fundamental human rights to conscientious objectors.
I want to depart from that point and refer to the remarks of other honourable senators who have spoken. Senator McKellar, when he played his role in the debate, said that the opportunities we want to provide by the amendment are already available. We do not deny that the Act currently makes provision for conscientious objectors, but we believe that the existing provision should be extended, and that is what the amendment proposes to do. Senator McKellar also said that the Opposition was out to hinder Australia’s war effort. We have said time and time again that Australia ought not’ to be in the Vietnam war, that it is an immoral war and that this country is illegally engaged in a civil war in another country. Perhaps Senator McKellar was aiming at that point. We have said on plenty of occasions here that we believe this is the wrong type of war for Australia to be engaged in. More and more members of the Liberal Party are coming round to our way of thinking. It will only be a matter of time before al’l members of the Liberal Party will be convinced that we are right and will be able to say publicly that they also do not believe in this war. At the moment they are tied by party policies and they are tied to another country in this matter. At this time they cannot make their beliefs known publicly.
Senator McKellar also said that conscripts were given 12 months training before they went to Vietnam. Somebody is wrong, because we are told that some of these men are going to Vietnam without getting their 12 months training in Australia. Complaints have been made by people who have been called up and who have not received proper training because they have been given jobs that do not provide the opportunity for them to be trained. This was borne out a couple of days ago in one or two letters that appeared in the Press. The letters were signed, so 1 assume that they were truthful. The Democratic Labor Party came into the debate, of course. Senator McManus was the spokesman and I was not surprised to hear his indirect attack on the Protestant churches. He referred to a resolution on abortion that he said had been carried in Victoria. If 1 used the proper word to describe the speech made by Senator McManus. I would be ruled out of order, so I will not use it.
Senator Sir Denham Henty came in as he usually does. He was very excited. He probably has social engagements next week and wants us to get the Bill out of the way. He referred to the amendment, which was moved so capably by Senator Cohen, as a phoney amendment The highlight of his approach to this question was his reference to the avoidance of service by certain of these young men. This is probably true. When a conscript is called up for service he is given the greatest brainwashing of all time. He is convinced by the system of training that the Red hordes are about to march into the north of Australia. This is an effective brainwashing system. However, if any Government supporters speak to some of the men who have come back from
Vietnam they will find that these men are convinced that they were not engaged in an honest war. The figure on the conscripts who have signed on for further service, with the possibility of returning to Vietnam, is shocking and does not support the contention that morale is high.
As 1 said the other day, the Government is afraid that if the amendment were Carried even more people would have the opportunity to examine their conscience to decide whether they want to serve in a war. Some of them, of course, would be able to avoid service in these circumstances, and rightly so. The Government’s main fear is that, if too many applications for exemption are granted, it will lose half its conscript army. This is worrying the Government at the moment, lt has commitments to keep and it wants to make sure that it keeps as many conscripts as it can in the Army. Senator Branson, who preceded me in the debate on this amendment, referred hypothetically to four machine gunners, all of whom, at the moment of battle, would suddenly decide they were conscientious objectors. What stupid commander, knowing that a young man had applied for exemption, would send him into battle? But Senator Branson is sending his four machine gunners into battle and envisages that at the moment they are about to pull the trigger they will decide that they will be conscientious objectors. How stupid and how consistent this is with the comments that Senator Branson usually makes in this chamber.
I believe that the case submitted by the Opposition in support of the amendment moved by Senator Cohen is a right and proper one. lt can be sustained in conscience and it can be sustained legally, and it ought to receive the support of the Senate.
– The amendment proposed by the Opposition has three components. Much of this debate has centred on proposed new sub-sections (2.) and (3.). I agree with the honourable senators on this side of the chamber who have pointed out quite clearly that, whatever may be the intention of Senator Cohen who moved the amendment, the effect of these two sub-sections will be to create a multiplicity of claims, each one of which would guarantee protection to the man making it. There is no limit to the number of claims that may be made. The amendment creates a situation for people in battle or about to go into battle that would make them, as Senator Branson said, honourable cowards. I thought that Senator Branson, in dealing with a very difficult aspect of this subject, used restraint but really hit at the point that is raised by proposed sub-sections (2.) and (3.). I desire to look at proposed sub-section (1.), and in doing so I accept the invitation which was offered by Senator Cavanagh. When one looks at proposed sub-section (1.) and contrasts it with proposed sub-section (2.), one is in two minds as to whether there is some general ulterior motive behind this particular amendment. I wonder, when I look at the comprehensiveness of proposed subsection (I.), what is the purpose of proposed sub-section (2.). In suggesting that sub-section (I.) can be adopted and subsections (2.) and (3.) put on a different basis, Senator Cavanagh is probably achieving the same thing. 1 believe that the point of sub-section (2.) is comprehended in subsection (1.).
Proposed sub-section (1.) seeks to establish that a person who claims to be exempt by reason of section 29a of the Act from liability to render service under the Act shall first be deemed to be a conscientious objector pending the hearing and determination of his claim. Secondly, pending the hearing and determination of his claim, he should not be required to submit himself for medical examination. Thirdly, pending ‘.he hearing and determination of his claim, .ie shall not be called up for service. Fourthly, pending the hearing and determinaiton of his claim, he shall not render service under the Act.
– He shall not be required to render service.
– The fourth point, as I understand it, is precisely the point which is covered by proposed subsection (2.). At least, arguably, that is so. If that be the case, the debate which nas centred on proposed sub-sections (2.) and (3.) could well centre on proposed subsection (1.).
I think there are a number of objections, both of form and substance, as to why that sub-section is not to be preferred. In the first place, it refers to conscientious objectors. We have been discussing conscientious objectors because, in colloquial terms, thai is an expression which we recognise, and it is accepted. But when we come to examine the Act in which the proposed amendment is to be placed, the term ‘conscientious objector’ is not to be found. In colloquial language, ‘conscientious objector’ is the description given to a person who is qualified under section 29a as a person whose conscientious beliefs do not permit him to engage in any form of military service. I suggest that, therefore, the use of this expression raises a new expression and casts doubt, moreover, on the onus provision which is contained in section 29d.
Senator Wright said earlier that where there are facts peculiarly within the knowledge of the person who seeks to rely upon them then that person has the obligation of establishing those facts. So the person who claims to have conscientious beliefs which prevent him engaging in any form of military service carries the obligation of establishing that he has such beliefs. When we set that provision against what is proposed in the amendment, then, arguably, there is a doubt cast upon the effect of the onus provision which is already contained in the Act. How do we read those two provisions together if the amendment were to be accepted?
A second argument against proposed sub-section (I.) is that it permits a person to be excused from any medical examination under the Act. The exemption which is given by the Act is an exemption to a person whose conscientious beliefs do not permit him to engage in any form of military service. If he holds those beliefs, there is no necessary consequence or concomitant of it that he shall not undergo a medical examination. Why should a person who has these conscientious beliefs, or who claims to have them, be required to be excused from a medical examination?
As 1 have already indicated - and this was a third point of objection - to accept this particular sub-section is to accept a provision which would permit a person to make one claim, have it rejected, then make a claim next day, or immediately after rejection, and so on indefinitely. Senator Sir Denham Henty indicated that this proposal makes a farce of this provision because, for the whole period for which that person was liable to render service under the Act, he could, by persistently giving notice, having it rejected and giving notice next day, cause trouble for the Army, and cause trouble generally and in that way avoid, until he reached the age of 26 years, the obligation to render any service at all.
It has been suggested throughout the course of this debate that the conscientious objector must be protected. It is suggested by Senator Cavanagh, for example, that a denial of a human right is involved. There is no denial of any human right involved. Section 29a, as clearly as any statute can - Senator Cavanagh made this point himself last night - gives a guaranteed statutory right to a person whose conscientious beliefs will not permit him to engage in any form of military service. The only qualification which did exist on that under the original Act was removed by the Senate last night. Now it stands unimpaired and that right guarantees to the conscientious objector what is claimed for him.
We have been discussing the conscientious objector, the man who is protected under section 29a, as though he were entitled to all the protection and rights which a Parliament can give him. I think that is the wrong emphasis. The conscientious objector is the beneficiary or recipient of an indulgence. When we passed the National Service Act it imposed, in form, an obligation upon everybody to register for service. From amongst those who register and who are medically fit, some are selected. But the basic group of people from whom these men are selected are those young people who come within a certain age group. That is an obligation which, fairly, should apply to all. The conscientious objector is exempted, along with ministers of religion and theological students. They are the only persons exempt from this liability.
Therefore, they are being granted an indulgence. It is a proper indulgence which no-one has suggested ought not to be granted. But, having that indulgence, I do not think they should be elevated, as some people have been inclined to elevate them, and made the persons to whom all consideration should be given. I think it is proper that we should recognise that there are other people whose lives have been dislocated who possibly would prefer not to be called up for service and who have to do their national service for a period of 2 years continuously. There ought to be some regard for them in our general consideration of this matter.
– 1 should like to elucidate one point. A lot of heat has been generated with regard to the inclusion of the word claims’ in the amendment that has been proposed by Senator Cohen. I point out to the Senate that section 29d of the original National Service Act, which is nol being disturbed by the proposed amendment, refers to a person who has conscientious beliefs in this way:
Where a person claims to be exempt, by virtue of sub-section (1.) of section 29a of this Act. from liability to render service under this Act or to be a person to whom sub-section (2.) of dial section applies . .
– Does the honourable senator find the word ‘claims’ in section 29b?
– I have nol finished my argument. 1 am referring to section 29d, which says what a person may do. A person may not just stop in the middle of an action and say: ‘1 am not going to pull the trigger of my machine gun’, as Senator Branson suggested he might. The National Service Regulations define what has to be done. Part VI regulation 31 of the National Service Regulations which deals with conscientious objectors states:
He does not simply say: ‘I claim that 1 am now a conscientious objector’. The regulations state that he must make application to be so regarded. I think that covers all the points contained in the amendments proposed by Senator Cohen. It is legitimate to use the word ‘claim’. It is the terminology used in the original Act. The amendment follows exactly along those lines.
I want to raise another point. Many people seem to think that the booklet ‘Conscientious Objection to Military Service’, the report of a special committee of the
Australian Council of Churches which has been circulated rather extensively among members of Parliament in the last few weeks, has been prepared by a group of conscientious objectors who are trying to bring about amendments to the Act. The people concerned are nothing of the kind. The majority of members of the Australian Council df Churches are not conscientious objectors, but they are people who have a lot to do with conscience. They have dealings with members of their own churches and they know something about the meaning of conscience. They know how one determines conscience and the rights of a person with a conscience. In their recommendations following their consideration of this matter they direct attention to Great Britain and New Zealand. The Minister challenged us to quote the recommendation, lt is No. 6 (vh). 1 shall do so. lt is in these terms:
Following the application of a serviceman lo be exempted us a conscientious objector, he be forthwith suspended from all duties until his application and any appeals arising therefrom have been determined. 1 remind honourable senators that that suggestion has been advanced by a group of people who are not conscientious objectors. If these proposed amendments are put into practice reasonably - we are not talking about any stupid application of them such as a man on the field of battle claiming objection as he is about to press the trigger of his gun but not having an application form with him - they will be of benefit. We are talking now about reasonable people reaching a decision and feeling that they cannot, in conscience, go any further. I have not yet met a conscientious objector who was not a reasonable person. By these proposed amendments we are trying to protect their rights just as we are trying to protect the rights of people who have gone to serve in Vietnam because they think that is the; right thing to do. We are seeking to protect both groups. I hope that we ourselves will exercise a little reason when considering these three amendments. I believe that they are linked together and should be accepted as a whole.
– One thing that Senator Wilkinson made clear in his contribution is that the three paragraphs of the proposed amendment are linked together. That was the draftsmanship of Senator Cohen. He proposed this amendment and divided it into three paragraphs. Therefore any suggestion such as that advanced by Senator Cavanagh that they have been lumped together and that the Government, by taking them as one, denies any proper measure of justice to people who seek this principle is quite ill-founded. That is the first point I make.
The second point I make relates to Senator Keeffe’s proposition. He indicated quite clearly his view of conscientious objection. He said that a person who says: T conscientiously object to- Australia fighting in the Vietnam war’ is entitled to exemption from Australia’s laws imposing the obligation of national service. No country could permit that degree of subversion of its armed forces. The law of this country provides for exemption from military service if a person has a conscientious belief which does not allow him to engage in any form of military service. If his conscientious belief is confined to combatant service he can obtain exemption from combatant service and be detailed to non-combatant service.
I ask honourable senators to remind themselves of 1942, after America had come into the war and Roosevelt and Churchill decided to fight in Europe before taking the offensive against Japan. Did an American serviceman have the right to say: T object to fighting in Europe but I will fight against Japan’? That is exactly the same proposition as put by. Senator Keeffe, that the objection to a particular war-
– A state of war was declared then.
– If war were not declared it is obvious that the defence of the country requires troops to be standing on guard at its borders in the expectation that war may be declared. That has been Britain’s function for the past 50 years and her withdrawal from that function in Malaya is what is causing such concern. These are the very elements that would recommend themselves as acceptable to anyone who would reflect for one moment upon the life of his country.
That brings me to the second paragraph of the proposed amendment which states that a person who claims to be exempted as a conscientious objector shall be no longer required to render service, lt is true that Senator Wilkinson has found regulations which give formal expression in the ordinary case to the consideration of an application by a conscientious objector, but if the Act were put into that form it would be impossible for the regulation to cut down the operation of the Act. Therefore in this form, without the Act referring to the necessity to comply with regulations as to procedure, this provision would operate automatically if a man said: ‘I claim to be a conscientious objector’ however close to the enemy he was. That is a plain proposition of English.
I come to the last point with which I propose to deal. Not only Senator Cohen but also Senator Cavanagh and Senator Keeffe have advanced the proposition that if I were persuaded by their arguments I would mollify my views a little, but I regret that in the amendment I find those undevious expressions which the arguments referred to by Senator Cavanagh and Senator Keeffe would lead me to expect. First of all, Senator Cohen, throwing off the mantle of the Victorian executive of the Labor Party and taking on the mantle of the Australian Council of Churches, gave as his authority the booklet that has been circulated to us all. It is a strange thing that when you quote scripture it is necessary to compare the texts. It is accepted automatically that people who quote scripture are truly quoting scripture. But in this respect the difference between the church text and the Cohen amendment is significant. The church text simply says that: an applicant for exemption as a conscientious objector be immediately provisionally registered as a conscientious objector pending the hearing of the application, . . .
I emphasise the words ‘provisionally registered as a conscientious objector’. In other words, the claim is filed provisionally. But the Cohen amendment converts that expression into ‘deemed to be a conscientious objector’. As I have said, I cannot attribute to the draftsman of that deviation an undevious purpose.
Now I come to the next respectable authority that Senator Cohen invoked. He referred to sub-section 7 of section 17 of the British statute of 1948. I think it would be quite cogent for the minds of the thoughtful to note that that sub-section provides:
The Minister may provisionally register in the register of conscientious objectors any person sub ject to registration notwithstanding that he has refused or failed to make any application in that behalf- and these are the important words - if in the Minister’s opinion there are reasonable grounds for thinking that he is a conscientious objector. . . .
Those words have been dropped from the Cohen amendment.
– They were read to the Committee.
– Yes, they were read to the Committee andI suppose there was not sufficient suspicion attributed to the Minister in charge of the Bill to think that he would go and examine the text. I find that the section refers to the opinion of the Minister, and from time to time we have dealt with the conclusiveness of that matter. The Minister has the right to decide that there are reasonable grounds; not a pretext and not a mere claim. The Minister’s opinion that there are reasonable grounds entitles the applicant, not to be deemed a conscientious objector but to be provisionally registered. I believe that the amendment lacks not only cogency but respectability when I find authorities quoted in that manner and distorted in the amendment that is put before the Committee. That is to say, they are distorted in the sense that there is a deliberate omission of the critical words ‘provisionally registered’ in the church text, that there are substituted for them the words ‘deemed to be a conscientious objector’, and that there is a deliberate omission of the words in the British statute which refer to the decision being dependent upon the Minister’s opinion, based upon reasonable grounds, that there is merit in the claim of conscientious objection. Senator Cohen’s amendment provides that simply upon a claim being made by an individual he shall automatically be exempted from further service, and automatically the processes of a judicial tribunal will be invoked.
There is one addendum which I make to that argument, in deference to what
Senator Wilkinson has submitted. The person for whom Senator Cohen has such solicitude is required to register, and if he does not register and comes within the category referred to in sub-section (3.) of section 29a, he will be prosecuted. If he raises a defence of conscientious objection on that prosecution, under section 29b he is entitled to have a court adjudicate upon his claim of conscientious beliefs, because that section requires the court to deal with the matter where a question arises. It is made clear by the difference in language between paragraphs (a) and (to) of subsection (1.) of section 29b that a question may arise even though the person has not put forward a formal application.
I content myself with those remarks to the Committee.I ask the Committee to make a decision on this matter as early as possible.I am indebted to the honourable senators who have taken part in the discussion. I have contributed to it to the extent of my ability. After Senator Cohen has been further heard, I respectfully suggest it would be appropriate that the vote be taken on this amendment.
– If there has been any heat in this debate I think that the Minister in charge of the Bill has a lot to answer for. Not only has he made personal imputations which go very close to offending against standing order 418 - and I have not risen to protect myself because I am satisfied to bear the brunt of his imputations - but he has also encouraged others to impugn the motives of the Opposition. He has engaged, finally, in the rather sterile exercise of trying to persuade the Committee that in some way or other I have been guilty of distortion or deception of the Committee. I want to throw that suggestion right back at the Minister because not only have 1 not been guilty of deception, but I have read out to the Committee every word of each of the three parts of the amendment. I also drew the Committee’s attention to the English provision.I did not know whether the Minister had ever heard of it before.I find it very difficult to believe that this Government could ever have given serious consideration to the English provision for a provisional register of conscientious objectors. The Minister has left a trail of innuendo around the discussion. He has made suggestions of devious means and of subversion. Expressions such as those do a disservice to this chamber. They bring little credit on the Government which puts them forward.
The Minister, seems to have spent his time pointing out that what 1 have moved on behalf of the Opposition in this debate is in some way markedly different from what has been put by the Australian Council of Churches. 1 take it that the Australian Council of Churches was not drafting specific amendments in the context of the Bill; it was suggesting matters that ought to bc incorporated. I have no hesitation in saying that in substance and in spirit what 1 have put forward here accords with the views advanced in that very admirable and challenging report of the Australian Council of Churches. The Minister went to some pains to go back over the argument that he won last night wilh numbers, not with logic. The Government was able to defeat our amendment to extend the category of exemption to young men who had a conscientious objection to taking part in the war in Vietnam. I remind the Committee that Judge Norris found in a case in Victoria that there was such a man; that there was a young man in particular who had a conscientious belief that it was immoral to take part in this war. We were defeated on that amendment so we have to proceed on the basis that the definition remains unaltered. lt does not help the Minister to continue to berate this proposition. The Australian Council of Churches was one of the bodies that put the proposition forward. That body, I am sure, will be extremely disconcerted to hear that its recommendations and the spirit of the amendments are in some way subversive of the defence position of Australia and are unworthy of consideration. I reject that kind of approach to this debate. We put forward initially, without any heat, a proposition which, if adopted would bring Australia into line with lbc position in Great Britain and New Zealand.
– That is not so.
– The honourable senator has had his opportunity to speak. I have stated the substance of the matter. If the Minister is willing to say that he accepts the report of the Australian Council of
Churches and rejects the Cohen amendment - I am happy to wear that hat if the Minister wishes to pin my name on the amendment - let him say so. Let us adjourn the debate and have the Bill altered to provide for a provisional register. Let us have the position that obtains in Great Britain and New Zealand. I will be perfectly content if the Senate passes into law provisions that are in all respects similar to the English and New Zealand provisions. I cannot offer a fairer challenge than that. But the Minister has evaded it. He has attempted to show that’ the amendments I have proposed are in some way more devious, subtle, or dishonest, or less direct than i hose of the Australian Council of Churches, but he has not said that the Government rejects the report of that body.
It is nonsense and humbug to try to gain some advantage or credit out of the fact that I have not followed the words of the report of the Australian Council of Churches in drafting my proposed amendment. If the Minister wishes to say anything further on this aspect, let us have some indication from him that the Government supports the recommendation of the Australian Council of Churches and is prepared to introduce or to consider introducing the system of registration of conscientious objectors, including the setting up of a provisional register, as recommended by that body.
I was asked earlier about the position of soldiers serving in Vietnam who wish to apply for exemption as conscientious objectors. I had not raised that aspect originally, but I think it is a proper question to ask. lt. is obviously fair to ask that question of the mover of the amendment and I did not flinch from giving a frank reply. I said that the terms of the proposed amendment would cover soldiers serving in Vietnam. However, I suggest to the Committee that a young man serving in Vietnam under battle conditions who applied for exemption as a conscientious objector would be displaying not an act of cowardice but an act of great courage, lt is not likely that a young man in that situation would want to separate himself from his comrades with whom he had been sharing danger and difficulties. Why should it be assumed that a young man in that position would be guilty of an act of cowardice?
I suppose honourable senators opposite would agree - leaving aside for the moment the question of an amendment to the Act - that if a young man approached his commanding officer or a superior officer and said that as a matter of conscience he could not take part in the war any longer, his commanding officer or superior officer would probably say: ‘We will have to see what we can do about this. If you are seriously wanting to pursue an application for exemption, it is unusual, but we will have to see what we can do about it. In the meantime, I will do what I can to keep you away from combatant duty if that is your conscientious belief.’ I assume that honourable senators opposite would agree that that would be the probable reaction of a commanding officer unless there were an opposing and overwhelming necessity of the moment.
That proposition is involved in the amendment we have proposed. Such cases would be extremely rare because it would not be easy for a young man in those circumstances to come forward and say: For me it is a matter of conscience that I can no longer bear arms alongside my comrades.’ If honourable senators opposite were prepared to tell me that that is likely to be a very frequent occurrence, I am afraid I would not be convinced. I have said what I wanted to say on this point. I hope that the Committee will pass the proposed amendment. I move:
Question put. The Committee divided. (The Chairman - Senator T. C. DrakeBrockman)
Majority . . . . 3
Question so resolved in the negative.
That the proposed new clause (Senator Cohen’s amendment) be inserted in the Bill.
The Committee divided. (The Chairman - Senator T. C. DrakeBrockman)
Majority . . . . 3
Question so resolved in the negative.
Proposed new clause 13d.
– I move:
After clause .13a, insert the following new clause: 13d. Section 29c of the Principal Act is amended by omitting’ sub-section (7.) and inserting in ils stead the following sub-section:- (7.) Save for an appeal by special leave or on a question of law to the High Court or the Supreme Court of the said State or Territory, the decision of a court of review under this section is final and conclusive, lt is necessary to refer to the provisions of section 29c in order to appreciate what the amendment seeks to achieve. Under the scheme of the Act the persons entitled to claim exemption are those referred to in section 29a, sub-sections (1.) and (2.). Section 29b (1.) reads:
Where a question arises whether -
a person is, by virtue of sub-section (I.) of the last preceding section, exempt from liability to render service under this Act; or
a person is a person to whom sub-section (2.) of that section applies, the question shall be heard and decided by a court of summary jurisdiction of a State or Territory of the Commonwealth constituted by a Police, Stipendiary or Special Magistrate.
Section 29c provides for a court of review to consider decisions made in pursuance of the power given under section 29b. Section 29c (I.) stales:
In this section, ‘court of review” means a District Court, or County Court in the State or Territory of the Commonwealth in which the person in relation lo whom the question arises resides or, if there is no such court, the Supreme Court of the Stale or Territory in which that person resides.
Section 29c (2.) gives a right of appeal to this court of review against the decision of the court of summary jurisdiction, and such appeal is open either to the Minister or to the person concerned. Sub-section (3.) of section 29c deals with procedural matters concerning the institution of the appeal and so on. Sub-section (4.) is as follows:
The court of review in which an appeal under this section is instituted -
shall hear and determine the appeal; and
may affirm, vary or reverse the decision of the court of summary jurisdiction.
That jurisdiction of the court of review is exercisable only by a single judge. This is provided for in sub-section (5.). Sub-section (6.) provides:
Unless a court of review before which an appeal is heard otherwise orders, the appeal shall be by way of rehearing.
Then we come to sub-section (7.), which it is proposed to omit in favour of the pro vision contained in my amendment. Subsection (7.) reads:
The decision of a court of review under this section is final and conclusive.
It is the view of the Opposition that a further appeal should be provided under this section. Cases arise in which there is some error in law or some error in the decision, but at the present time, apart from the very unlikely use of the prerogative writs, there is no appeal from the decision of the court of review. What we are proposing is that there should be an appeal, either on a question of law or by special leave, and that such an appeal should be available to either ‘the High Court or the Supreme Court of the said State or Territory’. That refers back to the previous section which mentions the District Court or County Court in the State or Territory in which the person in relation to whom the question arises resides, or, if there is no such court, the Supreme Court of the State or Territory in which that person resides. We believe that if we provide for an appeal only on questions of law it is not a completely open appeal. There must be an appeal as of right on questions of law or an appeal by special leave in other circumstances. One could then be more content that persons were not unnecessarily prevented from pursuing their rights to higher tribunals. We are dealing with matters of conscience - matters that are of very great importance to the individual. If the debate on this Bill has served no other purpose it has demonstrated the critical nature of these matters as they affect individuals. Irrespective of which side of the argument one supports, it is obvious that these matters are important and that where there is a doubt or a difficulty the freest possible right of appeal available in other branches of the law should be available to these citizens. T believe that the amendment I have moved would meet the situation. It would give a right of appeal by special leave, or on a question of law, to the High Court or the Supreme Court, as the case may be. Subject to that the decision of the court of review would remain final and conclusive. In other words, if there is no appeal from the court of review, that is it. If there is an appeal, the appellant must come within the stated provisions. It must be an appeal for which special leave to appeal has been obtained or it must be an appeal on a question of law, which in our opinion should be an appeal as of right. For those reasons I urge the Committee to accept the amendment which 1 have moved.
[ 1 2.5 I J - Senator Cohen’s amendment is unquestionably designed to increase the right of appeal. With that principle 1 agree. However, 1 fear, from . legal advice at my disposal, that his amendment may, in its present form, create confusion. As 1 am intent on avoiding any confusion about appeals or the right of appeal 1 have circulated an amendment which I intend to move. 1 counsel honourable senators to accept the amendment as the safest means of safeguarding the rights of applicants for exemption from military service on the ground of conscientious objection. My proposed amendment, if carried, would avoid the complications that might arise if Senator Cohen s amendment were to be carried.
I am informed that a defect of Senator Cohen’s amendment is that under the principal Act an appeal from a decision of a magistrate on an application by a person for exemption on grounds of conscientious objection is to be brought to a District Court or County Court, but in South Australia. Western Australia and Tasmania, where there are no such courts, the appeal is to be brought to the Supreme Court constituted by a single judge. Under Senator Cohen’s amendment a person could apply for leave to appeal to the High Court in the first instance and, in the event of the dismissal of that application, he could apply for leave to appeal1 to the Supreme Court. The amendment might also permit an appeal to the Supreme Court on a question of law to be brought after an appeal to the High Court on the same question had been dismissed. Perhaps it would even allow an appeal on a question of law to one court and an application for leave to appeal on a question of fact to another court. Lt is not clear whether the amendment would allow an appeal from a single judge of the Supreme Court of a State to the Full Supreme Court. If such an appeal is not allowed by the amendment, the litigant in a State where there is no County Court or District Court would be put to the expense of appealing from the single judge of the Supreme Court to the High Court, with (he additional inconvenience, in the case of the smaller States, caused by the infrequent sittings of the High Court in those
Slates. I am further advised-
– By whom?
– By my legal advisers. J am advised that it is not clear from Senator Cohen’s amendment what powers the appellate court could exercise on the appeal. For example, if the appeal was on a question of law only, the decision of the appellate court might require a re-decision of the case on the merits. The best course would bc for the case to be remitted to the court below for this purpose, but the amendment makes no provision for such a procedure. The amendment refers to appeals in certain cases by special leave. lt does not specify whether the special leave is to be granted by the court from which the appeal is brought or by the court to which the appeal is brought.
In the light of that opinion and with a desire to eliminate any possible confusion, I respectfully suggest that my proposed amendment be carried. It will increase the scope of appeals and will give satisfaction to those concerned.
– The Government has considered the amendment moved by Senator Cohen and that proposed to be moved by Senator Gair. It is obvious that Senator Gair’s proposed amendment has been drawn with a careful regard to the hierarchy of courts so as to give value to an appeal. The Government will accept Senator Gair’s proposed amendment. In the circumstances Senator Cohen may consider that the proper course for him to follow will be to withdraw his amendment and allow Senator Gair’s to be passed. May I point out that Senator Gair’s amendment makes provision not merely for appeals from Supreme Courts of the States and the Territories; it provides, in the case of the States, for an appeal to three judges of the Supreme Court, and, in the case of the Territories, to the Commonwealth Industrial Court. On a question of law this is an appeal as of right. An appeal lies to the same courts on any other question, by leave of the court. In addition, Senator Gair’s proposed amendment provides that the decision of the court, on an appeal under this section, is final and conclusive, except that an appeal may be brought to the High Court by special leave of the High Court. As the book produced by the Council of Churches has been quoted here, I would remind honourable senators that the Council of Churches advocated that there should be a further right of appeal by leave on questions of law. The Government’s view is that it is proper to accept an amendment for a right of appeal much wider and more effective than was advocated by the Council of Churches and composed in the careful terms in which Senator Gair’s proposed amendment has been expressed. In these circumstances ] suggest there is no purpose in discussing Senator Cohen’s amendment, which is very brief and not fully elucidated in the text. ] would suggest that Senator Cohen facilitate our deliberations by withdrawing his amendment and by assisting in the passage of Senator Gair’s proposed amendment.
Sitting suspended from 1 to 2.15 p.m.
– During the suspension of the sitting T have given consideration to Senator Gair’s foreshadowed amendment and to the Minister’s intimation that, the Government proposes to accept that amendment.
– What else could the Government do?
– -lt could have accepted my amendment. That would have been the preferable course. 1 am indebted to Senator Gair for his interesting examination of my amendment and of the possible defects in it. I do not think he will mind my reminding him that during the second reading debate he foreshadowed an amendment that was in almost precisely the same terms as the one that 1 have moved.
– That is true.
– Senator Gair acknowledges that. 1 do not want to say any more about that.
– But the deficiencies and defects in it were corrected for me.
– I understand that the assistance of the Parliamentary Draftsman has been available in the preparation of the amendment that Senator Gair has foreshadowed. No doubt it attends, with some particularity, to matters that are stated somewhat generally in my amendment, lt seems clear to me that Senator Gair and I have been moving in the same direction. I am pleased that the Government has acknowledged the further right of appeal that my amendment set out to establish. If the Government is prepared to accept Senator Gair’s amendment, obviously it will be carried. In those circumstances I see no point in resisting that amendment, although I would prefer my amendment because it gives an appeal as of right to the High Court on matters of law whereas Senator Gair’s amendment gives only an appeal by special leave to the High Court. Nevertheless, it is good to see progress made and to see an acknowledgement of the further right of appeal. In those circumstances I intimate that I will not pursue my amendment; that I will withdraw it; and that the Opposition will support the amendment foreshadowed by Senator Gair.
Amendment - by leave - withdrawn.
– 1 acknowledge- with thanks the decision made by Senator Cohen in this connection. When he moved his amendment for the insertion of a new clause T said that he and 1 were as one in our aim, but that on the advice I had received I felt that there were deficiencies and defects in his amendment and that in the interests of those whom we desire to help and for the purpose of eliminating any danger of confusion or conflict of ideas my amendment would be preferable to his. So, without delaying the Committee, I now move:
That the following new clause be inserted in the Bill: 13b. After section 29c of the Principal Act the following section is inserted: - “29CA. - (1.) Notwithstanding sub-section (7.) pf the last preceding section, where a court of review in a Slate has given a decision under that section after the commencement of the National Service Act 1968. a party to the proceeding before that court -
may appeal from that decision to the Supreme Court of that State constituted by not less than three Judges on a ground involving a question of law only; and
may, with the leave of the Supreme Court of that State, appeal from that decision to that Court constituted by not less than three Judges on any other ground. “(2.) Notwithstanding sub-section (7.) of the last preceding section, where a court of review in a Territory of the Commonwealth has given a decision under that section after the commencement of the National Service Act 1968, a party to the proceeding before that court -
may appeal from that decision to the Commonwealth Industrial Court constituted by not less than three Judges on a ground involving a question of law only; and
may, with the leave of the Commonwealth
Industrial Court, appeal from that decision to that Court constituted by not less than three Judges on any other ground. “(3.) The Court in which an appeal under this section is instituted -
Question resolved in the affirmative. .
Clauses 14 to 17 agreed to.
Clause 18 (Failure to register).
– In this clause we again see reference to averment rather than proof; but 1 take that matter no further than saying that the provision is one that the Labor Party has consistently opposed. The clause reads: Section 48 of the Principal Act is amended - (a) by omitting sub-section (1.) and inserting in its stead the following sub-section: (1.) A person who, being required to register under this Act - (a) fails soto register … is guilty of an offence punishable, upon conviction, by a line of not less than $40 or more than $200.’
There is no provision in respect of reasonable cause. Although, with all the justification in the world, a person may not register when required to do so, the most sympathetic consideration that a magistrate can give him is to impose afine of $40. I do not think that is right. All the circumstances of the particular case must be considered. There seems to be a lack of confidence in the judiciary when we cannot leave mattersto the discretion of the magistrate and provide only a maximum penalty. In this instance a person commits the offence simply if he fails to register, no matter what the circumstances are and no matter what the reasons are, and the magistrate has no option but to fine him at least $40. I would like to hear the Minister’s opinion on that point.
– There are other considerations to be taken into account. I hope that Senator Cavanagh will be persuaded that proper provision has been made. Section 48 (2.) of the principal Act provides as follows:
It is a defenceto a prosecution for an offence against a provision of the last preceding subsection if the person charged proves that -
he duly complied with the provisions of paragraphs (a) to (d) (inclusive) of section 13 of this Act-
I remind Senator Cavanagh that section 13 requires a person to obtain a form, fill it in, sign it and deliver it to a registration office -
So those defences are specifically provided. I submit that they make a reasonable accommodation to the situation. Instead of using the words ‘reasonable cause’, the Act states specifically what is a defence. The second matterthat Senator Cavanagh might bear in mind is that under section 19b of the Crimes Act it is within the discretion of the magistrate in a matter of this sort to waive the penally altogether or to impose the penalty provided at the fool of the relevant section as he in his discretion judges appropriate to the case.
– I hope the Minister would not expect me to know verbatim what section 19b of the Crimes Act says. But I am concerned that here is a section that makes it mandatory that a person register, or else. Section 48 (2.) of the principal Act states:
It is a defence to a prosecution for an offence against a provision of the last preceding subsection if the person charged proves that-
The following paragraphs (a), (b) and (c) then set out the matters that have to be proved to establish a defence. A person can be found not guilty if he conies under paragraphs (a), (b) or (c) of section 48 (2.). But in some cases a person could have a legitimate reason for not registering. Why cannot the magistrate take this into consideration? Why must there be this compulsion upon the magistrate not to take all circumstances into consideration? 1 do not know. 1 am in complete ignorance of what section 19b of the Crimes Act provides. At least, I do not think that similar provision is made in this Act. Under section 48 (2.) a person can escape conviction. However, I am concerned about the man who, for some acceptable reason, has not registered. He may have found it practically impossible at the time to do so but there is still a compulsion to fine him $40.
Clause agreed to.
– 1 must raise the same objection to this clause. Proposed section 48b relates to a person who knowingly does something, and proposed section 48c concerns a person who wilfully does something. Proposed section 48a states:
If a document that purports to be a prescribed form of registration and to have been completed as required by sub-section (1.) of section 13 of this Act is posted or delivered to the Registrar and that document is false or misleading in a material particular, the person who signed the document is guilty of an offence punishable on conviction by a fine not exceeding Two hundred dollars.
Again I raise the same question I raised previously. Why is it that a person who knowingly signed a document that is false or misleading in a material particular is guilty of an offence? It is possible that a group of lads some of whom are illiterate would submit misleading documents, lt could well be that a prosecution might not ensue, but. proposed sections 48b and 48c will give the magistrate no option to take into consideration the circumstances of a case if a prosecution does occur. I again raise the question: Where is the protection for someone who unknowingly puts in a false or misleading document? I think that a reservation should appear in proposed section 48a to provide such protection.
– I suggest to the honourable senator that the protection lies in the meaning of the expressions used. The document would have to be false or misleading in a material particular, and not merely in a detail relating to a material particular. A person who signed a document that was false or misleading in a material particular would be guilty of an offence. That is quite common language in company law, income tax law and other laws which require truthful documents for the public administration. Secondly, there is a provision in section 19b of the Crimes Act which provides that if a magistrate considers that the circumstances are sufficiently extenuating, it is not compulsory for him to impose any fine at all. Therefore, I think the safeguards are adequate.
Clause agreed to.
Clause 20. (I.) Section SI of the Principal Act is repealed and the following sections arc inserted in its stead:
(4.) An offence against this section is punichable on .summary conviction .and not otherwise. 51 a.-……. (3.) An offence against this section is punishable on summary conviction and not otherwise.
– I desire to move amendments Nos 5 and 6 on the list that I have circulated, lt may be convenient for me to move the two amendments together. However, I notice that one of the amendments which the Minister has circulated would precede the second of my two. Both of the amendments I am about to propose involve the same matter of principle.
– That course is acceptable to me.
– I am obliged to the Minister for indicating that. 1 ask for leave to move my amendments Nos 5 and 6 together.
-(Senator Drake-Brockman).- There being no objection, leave is granted.
– I move:
Existing section SI of the principal Act deals with failure to comply with a notice calling a person up for service. Proposed section 51 (1.) will make failure to comply with the requirements of a notice after service an offence punishable upon conviction in accordance with the next subsection. Proposed section 51 (2.) will impose a Une of $200. It states:
Where a person is convicted of an offence against the last preceding sub-section:
the person is, subject to paragraph (c) of this sub-section, liable to a tine not exceeding two hundred dollars;
the court shall, whether or not a fine is imposed upon a person, ask the person whether he is willing to enter forthwith into a recognisance, to the satisfaction of the court, that he will comply wilh the requirements of any notice that is subsequently served on him under section 26 of this Act;
if the person does not forthwith enter into such a recognisance to the satisfaction of the court, the court shall sentence him to imprisonment in respect of the offence for a period equal to the period of service that he is liable to render under this Act in the Regular Army Supplement but, in that case, any order of the court imposing a fine on him ceases to have effect.
So, if he is sentenced to imprisonment, an order of the court imposing a fine on him ceases to have effect. Proposed section 51 (3.) states:
A person who has entered into a recognisance under the last preceding sub-section but does not comply with a condition specified in the recocognisance is guilty of an offence and, upon conviction, shall be sentenced to imprisonment for a period equal to the period of service that he is liable to render under this Act in the Regular Army Supplement.
I now come to the sub-section which the Opposition seeks to replace. Proposed section 5 1 (4.) states:
An offence against this section is punishable on summary conviction and not otherwise.
The first of my two’ amendments proposes that sub-section (4.) should be deleted and that the following sub-section should be inserted:
Proceedings for an offence against this section shall be brought in a court of summary jurisdic tion, which may either commit the defendant for trial or, with his consent, determine the proceedings.
The effect of this amendment would be to give to a man placed in the situation of being dealt with for failure to comply with a call-up notice the right, if he chose, to be tried by jury. Indeed, it would give him the absolute right to be tried by jury unless he were prepared to consent to the determination of the proceedings in summary jurisdiction. The next amendment, for the replacement of sub-section (3.) of proposed section 51a is in similar terms. It seeks the insertion of a similar provision to establish the right of trial by jury for an alleged offence of failing to render service under proposed section 51a. An offence against this section is to be punishable on summary conviction and not otherwise. Proposed section 51 (3.) requires the court to sentence a person guilty of an offence to a period of imprisonment equal to the period of service he was liable to render, which is taken to be 2 years as a maximum.
These amendments raise a matter of very considerable public importance. One of the strongest criticisms of this Bill is its denial of the long established right to trial by jury of a man who is charged with a serious offence, especially an offence of this character. It will be noted that the sentence is mandatory and that it must be for the balance of the unserved period of 2 years. Proposed section 51C seeks specifically to exclude the application of section 4 of the Commonwealth Prisoners Act 1967 in such a case. That section provides for parole and the fixing of a minimum period of imprisonment which otherwise would apply. So we are dealing with a very serious offence. The proposed law would mean that a young man could be sentenced to imprisonment in a civil gaol to take his place with criminals who have been sentenced under other laws of the land. Indeed, the magistrate has no option as to the length of sentence he is to impose. What is the justification for taking away from a man in this position that precious right for which we have long fought in British communities and other communities which observe the common law and the rule of law the precious right to be tried by a jury of his peers? There is no justification. This is not a matter on which the Opposition alone is exercising thought. Responsible journals, particularly in the major capital cities, almost without exception - for the moment 1 cannot think of any exception - have heavily criticised the Government for its failure to provide for trial by jury. The Melbourne ‘Age’, in its editorial of 30th May, which was the day after the Bill had been disposed of in another place, said this:
Faced with widespread disapproval of its reactionary national service legislation, the Federal Government has wisely retreated to a position of comparative semi-liberalism.
The article then dealt with what has been done so far and with the problems that still remain. It continued:
While it has tempered its original plan to turn the community into a collective pimping organisation, the Government has done nothing about the iniquitous proposal whereby national service evaders, or conscientious objectors, may be summarily gaoled for 2 years by a magistrate. This is very rough justice. The combination of heavy sentence and no trial by jury offends all our legal conventions and common law tradition.
I am very sorry to see Senator Greenwood laughing at that proposition.
– I am laughing at the extravagance of the statement.
– 1 would have thought that the preservation of trial by jury would be an important matter to Senator Greenwood. The article then states:
The only defence the Government has offered of this proposal amounts to a claim that trial by jury is a nuisance.
The ‘Sydney Morning Herald’, an important organ of public enlightenment in the largest capital city, said this on 17th May:
The Government has made no case for powers which would be difficult to justify were we in a stale of emergency. When members attempted to present some argument, as Mr Snedden did, for the absence of trial by jury for those refusing call-up, they showed only that they had not thought about the Bill’s implications. Mr Snedden gave the game away when he said a jury would be out of place because it would take only one man with strong convictions on national service to frustrate a trial.
I can think of no other justification than the one I have just referred to and which was criticised editorially by the ‘Sydney Morning Herald’ - that is, that the refusal to provide for trial by jury is based on the argument of convenience.
Again and again in this chamber, particularly in the last 2 years, in important legislation such as the Narcotic Drugs Bill 1967, the Customs Bill 1967 and the Wireless Telegraphy Bill 1967 we have established that the defendant should have the option of trial by jury if he wants it in cases involving substantial terms of imprisonment. I know it will be said that each case has to be considered on its merits. I have heard the argument that was put forward at the second reading stage that in some way or other what had to be decided here was not appropriate for a jury’. I have never heard another argument that is based so much on convenience. There are important questions to be decided under both of the proposed sub-sections being considered. The first question is as to whether, a notice has been served on a person liable for service under the Act. All sorts of exceptions may have to be negatived and questions of fact decided. Section 60 of the Principal Act provides: (1.) a document provided for by this Act and required by this Act to be served on a person may be sent by post to his registered address or the address of that person ‘ last -known to the person, being the Secretary- or a delegate of the Secretary, who caused the . document to bc so served. (2.) A document sent by post to a person al an address to which it may, under the last preceding sub-section, be so sent, shall, on proof of posting, be deemed, in the absence of proof to the contrary, to have been received by the person to whom it was addressed on the day when in the ordinary course of post it should have been received at that address.
Under the Act service does not have to be personal. There may be direct service on the person concerned or there may be service thai is deemed to be service because the Act has been complied with. I should have thought that if service were challenged, that would be the first question of fact to be decided. A young man might turn up and say he did noi receive the notice. I should have thought that would be the first question to be determined. That would be an important question of fact. The issue should be tried by a jury if there is any dispute, especially when you have indirect or substituted service. Whether a document is served on a person liable to render national service is an important question to be determined
The next question ii as to whether there are issues that have to be determined to the satisfaction of the court. Why do they have to be determined to the satisfaction of a magistrate? Why should they not be determined to the satisfaction of a jury? These are typical expressions which appear in the common law. When charging a jury in a criminal case or a civil case every judge says: ‘Gentlemen, it must bc established to your satisfaction that A, B and.C have taken place.’ These are facts that are in issue. I for my part - and I have given very serious consideration to this question - reject the suggestion that was made.
– Order! The honourable senator’s time has expired.
– The Deputy Leader of the Opposition (Senator Cohen) has produced amendments that are designed to introduce into two provisions of the Bill a right of trial by jury. The two provisions refer to failure to respond to a call-up notice and failure to render service. The first thing that J should like to say with regard to Senator Cohen’s’ advocacy is: Strange, is it nol, that ‘we have not heard of this matter before the Government introduces a Bill on the subject of failure to respond to a call-up notice and failure to render service? Where were the stalwarts of trial by jury in 1951, 1963 and 1964?
– Where were you? You were a stalwart of trial by jury.
– I was here and I considered the matter, and anybody on consideration, ) think, would be forced to the conclusion that where we are dealing with national service it is executive, administrative action, with proper intervention of the judicial process, that is required. No army has yet been gathered after a process of trial by jury by which every individual may say: ‘I invoke a jury as to whether I have been served with a notice, as to whether I am a male person, as to whether I am of the age of 21 years and as to whether or not 1 did respond to a call-up notice or render service.’ Why do we give the Governor-General the power to direct our defence forces so that the executive arm shall move into operation in these fields on the appropriate occasion, not even with the endorsement of the Parliament? The Parliament may be called together to veto this and exercise judgment but I should have thought this was quite a reasonable proposition when recruiting an army. When this matter was originally before the Parliament no one advanced Senator Cohen’s proposal as a serious proposition - not even I.
The we come to a situation in which Senator Cohen again shows that eagerness to get another pretext for making difficult the administration of the National Service Act. The Government hears representations from people no less dissimilar in their objectives but no less laudable in the identity of their purpose than the Returned Services League, the Australian Quaker Peace Committee, the Federal Pacifist Council of Australia and the Australian Council of Churches, all of which say to the Government: ‘Instead of providing, as your present legislation does in the case in which a man has failed to respond to call-up or failed to serve, that he shall be committed to the custody of the Army, we ask you to provide that the defaulter shall be committed to a civil prison for a period not exceeding 2 years.’ Each one of those bodies not having mentioned the question of trial by jury, when we substitute civil custody for military custody, the Australian Labor Party comes in with all of its assistance to the defence of the country and the strength of national service and says: ‘Civil imprisonment, 2 years, trial by jury!’ These are the ideas by which the exploiter of great principles abuses great principles. When we come to reflect we see that the present law, which passed without any protest from the Australian Labor Party, provides that these defaulters shall be committed to military custody and when in military custody none of the period that they serve in military custody earns them a credit against their 2 years military service.
– Where is that provided?
– That is the present law under the Defence Act.
– Not the National Service Act at all.
– Senator Cohen, not content with having put a specious argument before the Senate, now wishes by interjection to confuse the presentation that I shall gain in my argument. Let us have as a subject for a separate debate in a few minutes whether or not my proposition is correct. Under the legislation that pertained to national service, in respect of which there was not a squeak of protest out of any member of the Australian Labor Party, it was provided that those defaulters on being presented to a magistrate would be committed to military custody, and that when a man was in military custody detained for default on a military offence, he would not be credited with that period of military prison sentence against his military service required under the National Service Act. We acceded to the request of the Australian Council of Churches, the RSL, the Federal Pacifist Council of Australia and the Australian Quaker Peace Committee, and brought forward this Bill whereby a defaulter, instead of being entrusted to military custody is given into the custody of a civil prison. That was their request and we have made provision for it.
In addition, as in the case of appeals, we have gone further. We have given a more ample appeal than that for which these bodies asked. We have gone further in an endeavour to satisfy the anguish that people of conscience have, of course, about any compulsory military service - and I do not exclude myself from that at all. The very idea of the country being in a position to require compulsory military service is a matter of the gravest judgment on the part of the Parliament. So, yielding to the request by those bodies to provide for civil imprisonment in substitution for military custody, we have gone further in providing that any time that a person has served in the permanent forces, or in the defence forces of a country other than Australia, or as a national service officer, or in the Regular Army - less periods in excess of 21 days of absence with or without leave - shall be deducted as set forth in new section 51b. The Government, having accepted the proposition that it should substitute civil imprisonment for military custody, having provided that a defaulter shall be entitled to any rebates to which State prison laws entitle him, and having provided for the credits that I have mentioned against civil imprisonment, the Australian Labor Party now says: ‘But you have not provided that he shall have trial by jury. When Senator Cohen reads from the leaders of the the Sydney Morning Herald’ and ‘Age’ I would ask him to bear in mind whether those statements in the editorial columns of those two journals first of all do justice to the magistrates of this country. I would remind the pseudo resenter that in England about 85% of the defendants in indictable offences who have the option to elect for trial by jury do not do so. Considering what is contained in those editorial statements, 1 wonder whether they are couched in the language of people who have studied the constitutional principle of trial by jury. 1 refer particularly to the gentleman who mentioned the pimping provisions of this Act. I would think it almost a certainty that he has just, taken up some garbled version of a previous edition - never looked at either the original statement of the Act or the Bill - and joined in a chorus that might sell a few extra copies of the paper, using the headline ‘Trial by Jury Refused’.
I suggest that this great principle of trial by jury is being subordinated to the expediency of the doubtful political purposes of members of the Australian Labor Parly. They seek to apply this principle to the transposition of civil imprisonment for military custody in cases in which the facts which would have to be determined before civil imprisonment were imposed would simply be whether or not the defaulter has been served with a notice, whether the defaulter has been liable for service and whether the defaulter has served. I suggest that it is a very poor and impoverished argument to suggest that we should provide trial by jury to resolve issues of that description.
Senator COHEN (Victoria) 1.2.58] - I suggest that the Minister for Works (Senator Wright) really has not dealt with the point that has been raised in the debate. What he has done, is to tell us about all the other things that the Government, in a magnanimous spirit, has done to improve the position of people under the Act. I would remind him that virtually without exception what improvements the Government has offered during the course of this debate, and from the time the Bill first hit the public, have been offered because of the determined opposition of a number of sections of the community, including the Opposition, the Press and the churches, to certain aspects of the legislation. 1 know that we now have civil imprisonment instead of imprisonment in a military camp, although that is not effected by the National Service Act. Military imprisonment is the subject of another Act, and we have not been asked to consider that on this occasion. I suggest that the Minister has not mct the objection that his is not a suitable question to be tried by jury. Until he does that we are not really on common ground. He has talked about other things that the Government has done in the Bill that may or may not be improvements.
– He has done that to justify his change of attitude.
– What the Minister has done is to tell us how reasonable the Government is and how unreasonable are not only the Australian Labor Party but presumably all those sections of public opinion who see in this Bill a challenge to the important principle of trial by jury. One could speak at great length on this subject, because not only is it a long established right of a man to be tried by his peers but there is the requirement of unanimity in jury trials. It is not much good the Minister’s merely saying that we did not say something last time. The point is that the whole of this legislation is so impudent and so expressive of the arrogant altitude of the Government that it has forced into public debate certain features of the existing legislation. It is not much good the Minister telling us that 3 years ago or 5 years ago we should have voted against certain provisions or raised some questions. At that time certain features had not arisen. We are being reminded, by the presence of this Bill, not only of its objectionable features and how bad it is, but how bad are some provisions of the existing legislation. This is why the debate has assumed the proportions it has assumed and has taken the course it has taken.
I have not heard anything to persuade me that it. is wrong to proceed with this amendment. T suggest it is a proper amendment. It will not ruin the operation of the Act. To suggest that it would do so is to misunderstand the argument that has been put and certainly to misconstrue the motives of those who have put it. It is not simply a party political argument. This is a matter in which an important principle is raised. The Senate has, again and again in recent years, vindicated that principle. What possible reason can there be to depart from it on this occasion?
– Senator Wright has said that the amendment moved by the Opposition calling for trial by jury in circumstances in which 2 years imprisonment may be imposed upon an accused person indicates some expediency in the attitude of the Opposition to this question. I am very startled that Senator Wright should have said this because I should have thought that had Senator Wright cast his mind back to debates that took place in the Senate some few months ago he may have recollected the debates on the Narcotic Drugs Bill, the Wireless Telegraphy Bill and the Customs Bill, and he would have realised that on every occasion during the past year when the Government introduced legislation to provide for summary hearings without the right to trial by jury for offences which carried terms of imprisonment of 2 years, the Australian Labor Party put forward amendments calling for the right of trial by jury to be given to accused persons. We regard it as an essential part of the administration of justice in Australia that in serious offences - and if Senator Wright looks at Hansard he will find that he has said that an offence carrying a sentence of 2 years imprisonment is a serious offence - trial by jury should be available to the accused.
Senator Wright has said that the editorials in the ‘Sydney Morning Herald’ and ‘Age’ have, in some way, shown disrespect for magistrates by suggesting that trial by jury should be imposed in the circumstances we are now considering. If that is so then clearly Senator Wright himself showed gross disrespect for magistrates when he voted on three occasions with the Opposition to provide the right of trial by jury. If it is disrespectful to magistrates to say that a trial by jury is needed in respect of an offence which carries 2 years imprisonment under the National Service Act then why is it not equally offensive and disrespectful to magistrates to say that an offence which carries 2 years imprisonment under the Narcotic Drugs Act also requires the right of trial by jury? Senator Wright today has put forward not one single argument to demonstrate to the Senate the reason for the remarkable change in his own altitude, lt is a startling change - a change that has amazed us all.
We recollect that last year Senator. Wright, when he was a back bencher, crossed the floor of the Senate and voted with the Opposition. He stood there firmly as an upholder of the British common law, of justice and of the right of a man to be tried by twelve of his peers when accused of any offence that attracted a penalty of imprisonment of 2 years. Why this strange change? What has overtaken the honourable senator, who is now engrossed in consultation with his advisers? Are they his spiritual confessors with whom he is talking? Can they explain his strange change of attitude? I would be delighted, and I am sure the Senate as a whole would be delighted, if Senator Wright could explain to us why the Narcotic Drugs Act, the Customs Act and the Wireless Telegraphy Act should provide the right to trial by jury for offences that carry a penalty of imprisonment for 2 years but the National Service Act should not.
When Bills amending these Acts were last before the Senate it, was said that some of the penal provisions had been there for some time and nothing had been done about them. Arguments such as that did not impress Senator Wright then. Why do they impress him now? That argument was raised when we were dealing with amendments to (he Customs Act. The section providing summary jurisdiction for. offences had been in the Customs Act since, I think, 1913, but that did not dissuade Senator Wright from crossing the floor, voting with the Opposition and amending the Bill that the Government had introduced. Why does the same argument dissuade him now? Why is this argument so powerful now but was not so powerful last year when Senator Wright crossed the floor?
The Australian Labor Party does not raise this point as a matter of expediency. We have no special interest in the offences dealt with under the Narcotic Drugs Act, the Customs Act or the Wireless Telegraphy Act.
– You are getting very agitated unnecessarily.
– The boy wonder now has a few words to say. None of the offences in the Acts I have named were of any special concern to us. No-one can accuse us of having any particular sympathy for people who may have been charged under any of the penal provisions of those
Acts. Yet we reacted to that legislation in exactly the same way as we have reacted to this Bill. We have accepted the principle that was so eloquently expressed last year by Senator Wright, who is now a Minister, when he said that in any Australian State a person charged with an offence that carries such a serious penalty as 2 years imprisonment is entitled under the common law that we have inherited from England to a trial by jury. Although the Minister may have changed his mind, we have not changed ours.
– 1 join in the criticism of the Government and of the Minister for Works (Senator Wright) and I support the amendment moved by the Deputy Leader of the Opposition (Senator Cohen). What Senator Wright has said to the Committee is that, for all offences except offences under the National Service Act, accused persons are entitled to the right of trial1 by jury. However, when a man’s freedom can be taken away from him for a period up to 2 years for an offence under the National Service Act, Senator Wright says: ‘It is executive administrative action with a proper intervention of the judicial process that is required’. Frankly, that is a lot of gobbledegook.
He criticised the ‘Sydney Morning Herald’, the Melbourne ‘Age’ and other great metropolitan dailies for supporting the plea of the Labor movement that each and every person who is alleged to have committed an offence shall have the right of trial by jury: The Minister said that editorial writers of the ‘Sydney Morning Herald’ and the Melbourne ‘Age’ are virtually insulting the magistrates. But what did the Minister say about this proposition in 1967 when the Narcotic Drugs Bill was before the Senate and when Senator Murphy, on behalf of the Opposition, successfully moved that the right of trial by jury be provided for offences under that legislation? Senator Wright will recall that he not only sup-, ported the Labor movement with his vote but he also spoke very strongly on the subject of the right of an individual to trial by jury.
As the Minister apparently needs to be reminded of what he said about the right of trial by jury and about magistrates, I will read a passage from page 1390 of Hansard’ of 1 1th May 1967. He said:
The criterion should be thai since 1215, in cases of serious crimes involving a major term of imprisonment and putting a citizen’s liberty in jeopardy the citizen has been entitled and, I say, still is entitled to trial by jury. Having seen the web of officialdom in this place gradually growing in confusion and in weight in the years that 1 have been here, my respect increases for the progenitors of our laws who provided, as one of the fundamental safeguards of the freedom of the individual, trial by jury as distinct from trial by officials. When I say ‘officials’ I have no disrespect for the magistrates. I have an abiding respect for them, but the decision of a magistrate is the judgment of one man whereas a jury combines the experience, integrity and common sense of 12 men, J think, in every State.
On the question of the length of time for which a man’s liberty can be taken from him, the Minister, who was then a back bencher on the Government side of the chamber, is reported at page 1391 of Hansard for 11th May 1967 as having said:
The only thing is that if one seeks one form of procedure the penalty shall not go beyond 2 years. For my part, I would have preferred a magistrate’s jurisdiction to be confined lo a 12 months sentence. Having looked up the matter on the prompting of one of my colleagues this morning 1 find that in my own State, Tasmania, a magistrate’s general jurisdiction does not exceed imprisonment for 6 months.
So in 1967, on an important matter such as the Narcotic Drugs Bill, the Minister advocated the right of trial by jury but in this instance, when a man’s liberty can be taken from him for a period of 2 years, the Minister says there is no justification for giving the right of trial by jury. With very great respect to the Minister, he asked rhetorically but in rather an arrogant fashion: ‘Where were the stalwarts of trial by jury in 1951 and 1957 and 1 think 1964?’ He went on to say that no one advanced it as a proper recognition and added: ‘Not even I’.
The Minister has suddenly had a change of heart. He has changed the attitude he held on other pieces of legislation when the Labor movement sought to provide the right of trial by jury. On previous occasions the Minister has pointed out that under the law of the Commonwealth a discretion is sometimes given to the magistrate so that the magistrate can determine whether he will deal with a defendant summarily or will refer the defendant to another court for trial by jury. But here no discretion of any nature is given to the magistrate in that connection. We believe that a fundamental principle is involved. We believe that when a person’s liberty is likely to be in jeopardy for a period of 2 years or less, as is the case under the provisions of this Bill, the right of trial by jury should be given to such a person and, on the very cogent arguments put forward by Senator Cohen, 1 believe the amendment which he has proposed should be carried by the Senate.
– There are occasions when members of the Opposition decide not to oppose each other but to unite to oppose the Government. This is one such occasion. But it appears to me that in pursuit of some point upon which their opposition can be levelled honourable senators opposite have picked up this peg of trial by jury and on that peg they have sought to hang a cloak of misrepresentation and vilification of Senator Wright. If one examines the provision which is sought to be amended and looks at what is involved in it, then it appears to me - 1 think it would appear to anybody who examines it in that way - that to insist that trial by jury is necessary for this offence is to run counter to the trend .of trials for summary offences over recent years and also to invite juries to disregard the oath which they take when these matters are to be tried.
Senator Cohen has suggested ; I took a note of it at the time he suggested it - that this Bill is a denial of the long-established right of a man to have trial by jury for a serious crime and for an offence of this character. So far as Senator Cohen is concerned, that is nothing more than assertion. He introduces nothing to back up that assertion. Nor does he suggest that it is a statement to be found in the law hooks or in any documents which could carr)’ weight with the Senate. It is essentially assertion.
I say that there is no such absolute right and, even if there were, it would be subject to qualification. I do not wish to go through the range of offences which I listed in the course of the second reading debate on this Bill, but in my own State of Victoria - and, I suggest, the position is much the same in other States - there are many offences in respect of which terms of imprisonment of from 2 to 3 years are imposed by magistrates and in respect of which the defendant has no right to a trial by jury. These offences raise issues of fact upon which one might suppose that a jury’s opinion would be a valuable opinion to have.
One such offence is the offence of assault by kicking. Another is the offence of assault with a weapon. This brings in various issues such as whether the accused person in fact wielded the weapon, whether there was justification for his doing so and whether self-defence was evident. These are all matters which are commonplace and traditionally matters for a jury to determine. But there is no such issue of fact which has to be determined in this particular case.
Also in support of the proposition he is putting today, Senator Cohen referred to certain editorials in the newspapers. I remember he referred to an editorial in the Age’ of 13th May, and the particular passage which he quoted, - if I took it down correctly, stated- that this provision denying the right of trial by jury was an iniquitous provision which offended all our legal conventions and common law traditions. Some papers have purple patches. This was a purple patch which the ‘Age’ had because I would challenge anybody to say that this provision offends our legal conventions ot common law traditions. .1 think it is regrettable that a responsible newspaper like the Age’ should have seen fit on this particular issue to go overboard, which is just what it has done. 1 would prefer, in supporting an opinion on this issue, to look at the statements of one man whom I think the Opposition respect and who is respected throughout this country as a person who has upheld the right of trial by jury in appropriate cases - a man, who in defence of the rule of law and the protection of individuals under the law, has a deserved reputation. I refer to the Minister in charge of this Bill in the Senate, Senator Wright. I think some of the things which have been said in the Senate today by members of the Opposition who wanted to castigate him have been misleading in the extreme.
Senator Wheeldon referred to issues which were debated in this chamber last year. Although 1 was not here then, I do have access to Hansard and have had the opportunity of reading the record of what was said. Senator Wheeldon never once quoted anything in support of anything that he said. I suggest that when we look at what Senator Wright has said it becomes quite clear that never in any instance which I have been able to trace has he asserted an unequivocal right to trial by jury.
Let me refer, for the information of members of the Senate, to what he said when debating the Wireless Telegraphy Bill which was before the Senate on 24th August 1967. I shall quote from page 228 of Hansard of that date. After he had been speaking of trial by jury in the context of that particular Bill and suggesting that it was impossible to lay down the whole variety of offences and the whole variety of facts in which the issue could arise, he said, referring to the right of trial by jury:
The right may depend upon the nature of the evidence.
Senator Cohen, of course, said in the course of this debate that he had never heard such an original proposition before. Senator Wright went on to say:
It may depend upon the set of circumstances. lt may depend upon the character of the person concerned. Suppose a person in an important public position is charged with an offence of this sort. Essentially he has the right to be tried by jury. In relation to people holding public positions, individuals in authority are included to be influenced by other authorities. The jury has been the fundamental bulwark for both the Government and the people.
He goes on to say:
The Minister must not interpret my viewpoint as being that everybody charged with a trivial or petty offence is entitled to trial by jury.
I quote him again:
I hasten to add that my view, too, would exclude revenue offences from this principle, because of the notorious disinclination of the people to support revenue offences and there may be other offences of a special character.
I think, that, in the face of that, for people to accuse Senator Wright of going back on something which over the years he has firmly held is to deny him that respect to which I think his record entitles him. If people accuse him of departing from his principles, it is proper not to proceed on generalities but to look to the record to see precisely what was said.
– What did Senator McClelland do?
– He referred to the Narcotics Drugs Bill. I have a copy of the relevant Hansard. The debate on the Narcotics Drug Bill related to a totally different issue from the one which is before the Senate today. That was a Bill in which the provision that came to this chamber provided that there was no right in a defendant to ask for a trial by jury. The relevant clause provided that a person could be tried summarily, or he could be tried as for an indictable offence before a jury, lt would appear, therefore, that the person who had the right to send him to trial was the magistrate himself.
Senator Murphy moved an amendment which proposed that the right to go to trial by jury should be at the option of the defendant. Senator Wright supported that proposition. But this, I suggest, is a point that has not been mentioned by the Opposition, and it is worth mentioning: The offence which was punishable by the magistrate and the penalty for which Senator Wright did not uphold but did not seek to have altered was an offence which made the person concerned liable to a fine of $1,000 or 2 years imprisonment, or both. lt is suggested now that because on this occasion there is a penalty of imprisonment for 2 years there is some grave inconsistency which brings Senator Wright into disrespect because he does not follow a previous pattern. I suggest to honourable senators opposite that if they want to tackle Senator Wright on what he said in the past they should look at the record and look at the facts because I think he has been unjustifiably attacked today without recourse to the record.
There is a very good reason why this is an issue which does not have to be tried by a jury. The issues that it is suggested be placed before a jury arc simple straightforward and incontrovertible. Did a person receive a call-up notice? That is one issue. Did he go to the place he was required to go by the terms of that notice? That is a second issue. If those issues are proved, there is a conviction. That has been the case ever since this Act has been in force, and since 1964 there has not been one case in which, the issue having been challenged, a defendant has been successful. Naturally, because it is a simple straightforward issue one would not expect a defendant to be successful. The other issue covered by sec tion 51a is that you prove the issue of the call-up notice, you prove a person attended and then you show he did not obey a lawful order - equally incontrovertible matters.
In my submission, in cases like that it has never been the practice to have a trial by jury. Trial by jury developed many years ago when there were very few, if any, statutory offences. The body of our criminal law was the common law. In recent years statutory offences have developed and the tendency increasingly is for those offences not to attract trial by jury. But that is not to say that there may not be appropriate cases where the option of trial by jury should be granted. I am one who would affirm strongly that the jury system is one of our most cherished traditions which we should preserve, but we do not preserve it or give it strength or make it work if we seek to apply it in all cases irrespective of their character.
When a juryman is sworn in those cases in which there is an issue to be tried he is required to take an oath. In Victoria the oath is in these words:
You and each of you swear by Almighty God that you will well and truly try and true deliverance make between our sovereign lady the Queen and all persons whom you or any of you shall have in charge and a true verdict give according to the evidence.
That oath is impressed upon the jury and emphasised in the charge to the jury. They have to give a verdict according to the evidence. In the cases under this legislation it is not credible that a jury would come out with any verdict other than a verdict of guilty on facts which have been established. In seeking to have trial by jury here the Opposition is trying to get a verdict of not guilty in the face of the evidence. Not only does that derogate from the jury tradition but it seems to me to tend to make a farce of the law. If the facts are examined it is quite clear that the type of case involved is one which, by its essential character, does not require trial by jury. Therefore 1 oppose this amendment.
– I want to say only a word or two on Senator Greenwood’s last proposition. The jury system was bom out of circumstances in which one juryman refused to do what the judges told him to do although the other eleven were willing to do it. The whole history of our jury system depends upon the unassailable right of each of the twelve men to act according to his conscience and according to the evidence before him.
– And according to his oath.
– And according to his oath. Recently I have had the privilege of reading a most remarkable paper by Lord Denning, in 1949 a Lord Justice of Appeal and one of the greatest English lawyers, dealing with the problem of freedom under the law and with the origins of the jury system. He took the trouble to deal with the proposition that Senator Greenwood last enunciated. He puts it in these words:
That is, in Britain - there arc no people’s courts. There are no servient judges. The judges are entirely independent of the executive, but even they have not the final word. By the constitution of this country a man is not to be found guilty unless twelve of his fellow countrymen - each and al! of them - unanimously (“nui him to be guilty. This was settled in .1367 when the Judges of Assize went to Northampton, just as they do to this day. The report says that All the jurymen agreed except one who would not agree with the other eleven. They were remanded and stayed there all that day and the next, without drink or food. Then the judges asked the one who stood out if he would agree with his associates: and he said never - he would die in prison first. Whereupon the judges took the verdict of the eleven’ and imprisoned the twelfth. But afterwards by the assent of all the justices it was declared that this was no verdict’: and the twelfth nian was set free ‘for men are nol to bc forced to give their verdict against their judgment’.
There is a long history of struggle on which the jury system was founded. It was founded on just this proposition-
– What is its relevance?
– The relevance is that the argument which the honourable senator seemed to be propounding was that if a juryman did nol act on the evidence in the way a magistrate would act, on the assumption that it seemed reasonably clear to most people, in some way he was not true to his oath. I am saying that the jury system was founded on the basis that these men, the peers of the man charged, were to be his tribunal. I do not think it helps very much to talk about this as though there really is nor much to be decided, lt might be asked: What is there to decide? Whether he was served with a notice, whether he was a man liable to be called up, whether he received his call-up notice, whether he disobeyed it. These are simple questions - no problem - imprisonment for 2 years.
– Guilty anyway.
– Guilty anyway. I believe that these offences, which carry a certain element of political overtones, because a man is being charged with failure to obey a call to serve his country consistently with the Act, are offences in relation to which jurymen are peculiarly well equipped to do the judging.
– But you are seeking to have them go outside the offence when you say that. That is the point I made.
– No I am not. I believe there are questions of fact to be determined.
– What are the questions of fact?
– I went through them and so did you, but you do not think they are important enough for people to have a different opinion in relation to them, f would have thought the question of service was a question of fact - did he or did he not receive the notice?
– According to the law it depends on the posting of the notice.
– No, it does not. He has the onus of disproving receipt of the notice. If he proves to the satisfaction pf the court that he did not receive the notice, that is the end of it. Why should he not have the right to satisfy a jury instead of a judge? 1 rose to intervene at this stage only because I did not feel impressed by the proposition that Senator Greenwood was’ putting to the Committee.
That the amendments (Senator Cohen’s) be agreed to.
The Committee divided. (The Chairman - Senator T. C. DrakeBrockman)
Majority . . . . 2
Question so resolved in the negative.
Clause 20. (1.) Section51 of the principal Act is repealed and the following sections are inserted in its stead: “51a. - (1.) Where a notice has, whether before or after the commencement of the National Service Act 1968, been served on a person under section twenty-six of this Act and the person fails to render the service that he is liable to render under this Act in the Regular Army Supplement, the person is guilty of an offence and, upon conviction, shall be sentenced to imprisonment for a period equalto the period of service that he is so liable to render. “(2.) The last preceding sub-section does not apply in relation to a failure of a person to render the service referred to in that sub-section where that failure took place or began before the commencement of the National Service Act 1968.
– I move:
In explanation, I simply wish the Senate to hear me say that the intention is that proposed section51a should apply to a man who has failed to render service where specific failure occurred after the date of the operation of the amending legislation. The Government therefore submits this amendment to the Committee to put that position beyond doubt and at the same time to make it clear that no man is punishable by reason of conduct which took place before the passing of this legislation.
– I should like a little more information from the Minister on this amendment. I am looking at the sub-sections which the amendment proposes to replace. This is one of two amendments that appeared for the first time after the Bill had passed through another place. I recall that the Bill was first introduced in another place on 1st May. It finally was passed through the other place on 29th May. We were confronted with these amendments when we began to debate the Bill in the Senate last week. I am not completely clear in my mind as to what the amendment which has been proposed by the Minister seeks to do because it is now proposed to replace two sub-sections. It seems to me that there was in those two sub-sections some protection which will be taken away by the amendment. If I might read the two sub-sections it will become clear. At least, I should like to have my mind clarified. Sub-section (1.) of proposed section 51 a states:
Where a notice has, whether before or after the commencement of the National Service Act 1968, been served on a person under section twenty-six of this Act and the person fails to render the service that he is liable to render under this Act-
That is, after the commencement of operation of the amendments to the National Service Act - . . the person is guilty of an offence and, upon conviction, shall be sentenced to imprisonment for a period equal to the period of service that he is so liable to render’.
Sub-section (2.) states:
The last preceding sub-section does not apply in relation to a failure of a person to render the service referred to in that sub-section where that failure look place or began before the commencement of the National Service Act 1968.
As 1 understand it, now we are concerned with failures that took place before the commencement of the legislation that we are considering; not failures that began. I should like the Minister to inform me whether I am correct in that construction.
– There was an ambiguity in this respect. Senator Cohen suggested that this amendment may have the effect of taking away protection, but it depends on the way you look at it. The bodies which persuaded the Government to substitute civil imprisonment for military custody in this respect obviously offered civilian imprisonment as an ameliorating process. If after the enactment of this provision, we were to apply civil imprisonment to persons who failed to perform the duties lawfully required to be performed in the course of rendering service, I should think that those bodies would bc bitterly disappointed on finding that this provision did not apply to a person whose failure to render service occurred after the enactment of this provision although at some time before the Bill was passed that person had begun a failure which was either intermittent or continuous. Whereas there is ambiguity in the conjoint expression of sub-sections (1.) and (2.) of proposed section 51a. the purpose of this amendment is to make it quite clear that the new provision substituting civil imprisonment for military custody will apply to any person who after the commencement of the amended Act fails to perform duties lawfully required to be performed by him. The amendment makes it quite clear that the operation of the provision is attracted only by conduct that occurs after the passing of this legislation. There was an ambiguity in the previous expression as it was read by myself and by other people. I am offering the form of expression in the amendment in order to make it quite clear that the new provision will apply in respect of any person who. after the enactment of this legislation, fails to perform duties lawfully required to be performed by him in the course of rendering service and that any default or failure to render service preceding the passing of this legislation is completely irrelevant to the application of the Bill. [Quorum formed.]
Senator COHEN (Victoria) [3.451 - Again exploring the Minister’s explanation, I. wish to satisfy myself whether any right or any exception provided in the original proposed sub-sections (I.) and (2.) of the proposed section 5 1 a has been narrowed by the operation of what is now proposed, lt seems to me that there is some ground for thinking that that has happened in relation to an offence which had begun before the commencement of operation of the new provision.
– We felt that some ambiguity could arise from the very expression to which Senator Cohen has referred. lt is desired to make it quite clear that any antecedent conduct on the part of any person should be completely irrelevant to an offence under the provision we are now discussing. The argument of the Returned Services League, the Australian Council of Churches and other bodies was that the Government should provide a process whereby civil imprisonment would be available for defaulters. I use the term defaulters’ to indicate people who, after the passage of this bill, fail to perform duties lawfully required to be performed by them in the course of rendering service. The Government has accepted the view that civil imprisonment should be applicable to those people and that any conduct antecedent to the passage of this Bill should be completely irrelevant. 1 submit that the proposed amendment simply puts into operation the principle that everybody has insisted upon - that there should be no retrospective operation of a provision such as that we are now discussing. The Government is making it quite clear that where notice of call-up has been served - before or after the commencement of operation of this legislation - and a person fails to perform duties lawfully required of him, his failure to perform his duties must have effect after the commencement of operation of this legislation. In such cases the new method of procedure - civil custody - shall be effective. Previously military custody was provided for.
– The proposed amendment states that after the coming into operation of this legislation a person who fails to perform duties lawfully required to be performed by him in the course of rendering service is liable to imprisonment. Is it intended that this proposed provision is to override the operation of military discipline? Could this provision not bc invoked at all times in respect of the duties lawfully required during service?
– J do not understand the honourable senator’s problem and 1 ask that he restate it.
– During the course of service a serviceman may refuse to perform duties lawfully required of him. In that case does the proposed new subsection (I.) operate to override normal military discipline? ] have in mind that Simon Townsend was imprisoned for refusing to obey a command while in the Army.
– The whole purpose of this provision has not been brought into dispute by any amendment. The operation of the old section was referred to in earlier stages of this debate. The whole purpose of proposed sub-sections (1.) and (2.) is to provide for the failure of people to perform duties lawfully required of them, after the passage of this Bill. It is desired to provide that when they arc brought before a magistrate they shall not be committed to military custody at all, but shall be committed to civil custody. Have 1 answered the honourable senator’s query?
Senator CAVANAGH (South Australia) 13.501- I do not think so. Clause 20 of the Bill provides for a new section 51, the provisions of which relate to failure to report for military service. A court then has to decide whether it is necessary for a recognisance to be entered into.
– The proposed new seclion 51 applies to failure to respond to a call-up notice. The proposed new section 5I, applies to failure to render service.
– That is so. The proposed new section 51a relates to failure to render service after the commencement of operation of this legislation, lt states: (I.) Where a notice has, whether before or after the commencement of the National Service Act 1968, been served on a person under section twenty-six of this Act and the person fails, after the commencement of the National Service Act 1968, to perform duties lawfully required to be performed by him in the course of rendering the service . . .
Then there is provision for penalty for refusal to perform those duties lawfully required to be performed in the course of rendering service.
– I shall assist the honourable senator as best I can. He has before him a copy of the principal Act and of the proposed amendment. The Bill seeks to substitute a new section 51 and a new section 51a. The honourable senator will see that sub-section (1.) of section 51 of the Act provides as follows: (I.) A person on whom a notice under section twenty-six of this Act has been served -
That was a military authority. In drafting the proposed new sections 51 and 51a, failure to comply with the call-up notice as set out in (a) is covered by the proposed new section 51, and failure to render service as set out in (b) is covered by the proposed new section 51a. The purpose of the proposed new section 51a is to apply in particular the present provisions of section 51 (1.) Cb). The honourable senator may see from a study of the Bill that there is elaborate provision to make it clear that credit is to be given for the punishment of 2 years civil imprisonment and the three periods referred to in the proposed new section 5 1. (2.) (a), (b) and (c).
I will summarise what I have said. The old section 51 provides for two offences - failure to respond to a call-up notice and failure to render service. Those two offences are to be covered separately by the proposed new sections 51 and 51 a. The proposed new section 51a, to which Senator Cavanagh is directing his attention, will provide, if my amendment is accepted, that where a person fails after the commencement of the National Service Act 1968 to perform duties lawfully required, he shall be guilty of an offence. The important words are ‘after the commencement of the National Service Act 1968’, because they safeguard against penalties in respect of any action that preceded the National Service Act 1968. Where a person fails after the commencement of the National Service Act 1968 to perform the duties lawfully required of him, he comes within the provision which substitutes civil custody for military custody.
– It appearsI have not made clear what I am seeking. The Minister quoted previous provisions under which there was a penalty for failure to answer a call-up and then to serve. That was quite clear, but now, in place of the original section 51, we are to have another section which will alter the penalty for failure to attend when called up. Then we are to have a new section 51a which will impose a penalty, not for failure to serve but for failure to render the service that the person is liable to render.
– Failure to perform duties lawfully required to be performed by a person in the course of rendering the service that he is liable to render.
– That is the point I meant to make. Perhaps 1 have been looking at another part of the legislation. The amendment now before us provides for a penalty for failure to perform duties. But a man is required to perform duties throughout the whole of the time he is rendering service. If a man has served for, say, 12 months and he then refuses duty, will this provision supersede the normal code of military discipline?
– I think I understand what the honourable senator means. There is a code of discipline under the Defence Act and similar legislation which imposes sanctions for failure by a soldier to perform duties. That code will not be superseded by this provision.
-I raise a point of order, Mr Chairman - the usual one.
– It seems to me, Mr Chairman, that the honourable senator is casting a reflection on the Senate by seeking to raise a point of order and then saying: ‘The usual one’. If he has a point of order which involves his directing your attention to the state of the Committee, why does he not say so?
– Order! The point of order is upheld. [Quorum formed.]
– I regret that the attention that Senator Cavanagh and I were focusing upon this provision has been interrupted by the honourable senator, whose only function in this Committee debate has been to call for quorums. 1 think it would be a quite legitimate comment that he has not taken the slightest interest in the debate or shown any understanding of what the Committee has been discussing. However, I will try to pick up the thread of the discussion. Under the code of discipline established by the Defence Act, the Army Act and Army Regulations various sanctions are imposed upon the ordinary soldier for breaches of discipline. They vary according to the seriousness of the breach. The proposed sub-section will not operate in any way to displace any part of that code as it applies to the ordinary serving soldier. In his case, that code of discipline will continue to apply. The amendment I have, introduced to insert a new provision in the National Service Act is carefully drawn so as to make it clear that the civil imprisonment that will follow failure to perform duties lawfully required to be performed in the course of rendering service that a person is liable to render under the Act may be imposed only on national servicemen upon whom notice has been served under the National Service Act. It is quite clear that this provision will apply only to national servicemen upon whom notice has been served under the Act.
– I do not comprehend as quickly as the Minister does, and I must ask your indulgence, Mr Chairman, to seek a little more clarity on this question. The Minister says that the provision is quite clear because it specifically refers to persons on whom notice has been served. A national serviceman who has spent 6 months or so in training would come within that category because a notice has been served on him. While I accept that this is not intended to replace normal military discipline, it seems to me there is no reason why it should not do so. Where is the protection? There is definitely no protection in the proviso that a notice must have been served, because a national serviceman who is in camp has had a notice served on him. If he refuses, while in camp, to perform duties lawfully required to be performed by him in the course of rendering service, why should the military authorities retain jurisdiction over him and this proposed provision not be invoked? 1 accept that this is not the intention, but where is this specifically spelt out?
– I trust that we are as one in understanding that the general body of military discipline applies to all soldiers. Superimposed on that is this special provision applicable only to national servicemen. If a national serviceman fails, after the passing of this Bill, to perform the duties lawfully required to be performed by him in the course of rendering service under the Act, then these provisions take effect. If Senator Cavanagh went through the Australian Military Regulations and Ordinances, the Defence Act and the Army Aci. he would find a multiplicity of provisions, any three out of twenty of which could be applied to one circumstance. This situation is common in a code of discipline of this kind. Although it is possible to produce a cumulative affect, these provisions have never been administered so as to produce a repetition or a succession of punishments. In this case when we are dealing with the National Service Act we are confining ourselves solely to the special provisions applicable to national servicemen. I point out that’ a prosecution under section 51a can be launched only by the Military Board and, as the honourable senator will notice from sub-section (5.), can be initiated only with the consent in writing of the Minister. These are the precautions usually taken in this kind of law to prevent the possibility of duplication of punitive provisions if without such precautions there might bc such a possibility.
Amendment agreed to.
Senator COHEN (Victoria) 4.5] - I move:
After proposed section 3U insert the following section: 5Iaa. No person shall be sentenced to imprisonment for a period exceeding two years for any offence under either of the two preceding sections.”
Having moved the amendment I am in some doubt as to whether it is necessary.
When the amendment was first prepared on behalf of the Opposition and moved in another place attention had been directed to section 27 of the principal Act. What prompted the amendment was the provision in section 27 of the principal Act, whereby, on the completion by a person of a period of 2 years in the Regular Army Supplement, the period could be extended in the event of its expiring during a time of defence emergency or during a time of war. That provision would have rendered a person liable to a period of service of up to 5 years in- the case of a defence emergency and for the duration of a war in the case of a time of war.
We on this side of the chamber are very sensitive of the fact that the war in Vietnam is not a declared war. Nobody knows whether it will ever be a declared war. [ suppose the possibility of it ever becoming a declared war is getting more and more remote. A simple declaration of war would have the effect of extending the period of national service in accordance with the provisions of section 27 (1.). So that there will be no argument on the matter, I have moved to insert this proposed new section. I have since noticed that proposed section 51b provides that the period of service shall be 2. years less the sum of certain other periods. I confess to being in two minds as to whether the amendment is necessary. We certainly mean it to be abundantly clear, as I hope the Government does, that 2 years will be the maximum period.
– In my view Senator Cohen’s amendment is not necessary for two reasons. One reason is the terms of proposed section 51b, where the period of imprisonment is expressed not by reference to the period of national service, which Senator Cohen points out may extend beyond 2 years in the case of an emergency or time of war. The section states that the period of service shall be taken to be a period of 2 years. There is no possibility of the imprisonment extending beyond that period. At the same time I want to take credit for the fact that the period of imprisonment shall be 2 years less certain periods.
The second reason why the honourable senator should be persuaded that there is no necessity tor his amendment is proposed section 5 Id, which provides:
A person who has, after the commencement of this section, been sentenced to imprisonment for an offence against section fifty-one or section fifty-one a of this Act is not liable to render service tinder this Act.
That proposed section precludes any possibility of a repetitive conviction during a 2- year period of service. Once sentenced a person is discharged not only from the liability to military custody, but also from any liability thereafter to render service. The provision operates as a complete protection to ensure that a person’s civil imprisonment can in no case exceed 2 years and will be, in many cases, 2 years less credits which are referred to in proposed section 51b.
– The assurances given by the Minister accord with my own views after reconsidering the amendment, and I see no point in persisting with it.
Amendment - by leave - withdrawn.
– As I interpret the clause, a person who is called up for service and who fails to obey the call-up notice may be brought before a court, and, upon conviction, be fined a sum not exceeding $200. The court shall - not may - irrespective of whether a fine has been imposed upon a person, ask him whether he is willing to enter forthwith into a recognisance to comply with the requirements of any notice subsequently served upon him. If he refuses to enter into the recognisance the court has no option but to impose a sentence of 2 years imprisonment. But if the court imposes a term of imprisonment of 2 years, the imposition of a fine ceases to have effect. So a person who will not agree to serve can be fined, but if he is sentenced to imprisonment for 2 years he does not have to pay the fine. Having been sentenced to imprisonment he is eligible for remissions of sentence, which in South Australia would amount to one-third of his term. This would mean that he would serve about 16 months.
If the man says that he will serve, he is called up for 2 years, with, as the Minister pointed out in his second reading speech, the possibility of serving 12 months in Vietnam. But under section 51 the fine that has been imposed upon him may be taken out of his pay. If the man is sentenced to imprisonment he does not have to pay the fine but if he agrees to serve in the Army he is still obliged to pay the $200 fine imposed upon him. The Minister has said that this fine will be taken out of his pay because the courts cannot bc asked to enforce their own orders and the man cannot be taken from the Army back to gaol to cut out the fine.
– ] suggest that Senator Cavanagh is out of order in raising this matter al this stage. 1 suggest that the matter should be raised when we deal with clause 27.
– If what the Minister says is so, 1 will accept his suggestion. I refer now to proposed section 51c, which reads:
Section four of the Commonwealth Prisoners Act 1967 does nol apply in relation to the sentencing of a person to a period of imprisonment for an offence against section fifty-one or section fiftyone a of this Act.
Having considered section 4 of the Commonwealth Prisoners Act for some time, it seems to me to provide that a magistrate is permitted to grant parole to a prisoner under Commonwealth jurisdiction if he has power to do so under State jurisdiction. 1 do not know why that section should not apply in cases under section 51 and section 51a of the National Service Act. 1 am in doubt as to whether the power of the magistrate is limited in certain cases; for instance, in that he cannot grant parole until a certain portion of the sentence has been served. The power that a magistrate has under section 4 of the Commonwealth Prisoners Act applies to cases under Commonwealth legislation, but it is not to apply to cases under section 51 and section 51a of the National Service Act. I would like to find out from the Minister why that provision is being made.
– Having regard to the purpose of this legislation, which is to compel service, we cannot compel service by the man who is willing and allow the man who defaults to be in a better position than the man who discharges his duty. That is why the defaulter formerly was committed to military custody. In response to requests, we have met the situation by saying that in future the defaulter will1 be committed not to military custody but to civil custody. That is civil custody for a special purpose, lt is not an ordinary prison sentence for a crime. It is civil custody instead of military custody. Therefore it is not appropriate to apply the parole provisions in section 4 of the Commonwealth Prisoners Act, which enable the various authorities to grant parole in respect of a term of imprisonment.
We have gone as far as we can in getting these defaulters out of our hair. Once authority is exerted, we have no wish to continue having to deal with them. Therefore we have given them credit against civil imprisonment in the various items that are mentioned in proposed section 51b. We have also expressed the legislation in such a way that they wiM be entitled to the normal remissions for good behaviour under the various prison rules that operate in the Stales. The remission periods vary from State to State; but for a first offender, in no State should the remissions be less than 25%. That means that a first offender is not likely to serve more than 18 months. I have said that in deference to the interest that I know Senator Cavanagh has in this matter. I hope that by that statement of the position he will be persuaded that these defaulters have been given as much consideration as is just, if not a little more.
– I direct the attention of the Minister to proposed section 5 Id. 1 wish to raise a question which has been suggested to me and which relates to the operation of that provision. I ask the Minister whether there is any provision in the Act to cover the case of a man who is sentenced to imprisonment for 2 years, or 2 years less some period or other, who subsequently changes his attitude and wants to serve his term, or the balance of it, in national service instead of in prison. There is no provision for that in the Act, is there?
– There is no provision for that in the Act, but the matter is well covered by administrative arrangements that apply in relation to prison and military rules.
– Let me pursue this matter a little further. Let us assume that a man is sentenced to imprisonment, with no parole provisions because they do not apply, and is in a civil gaol such as Pentridge. If at some stage he says: ‘1 have changed my mind; I want to do the service that originally I was called up to do’, how is his case handled? ls there a return to a court or to the court that sentenced him? There is no provision for such cases in the Act, is there? I have been unable to find any.
– I do not seek to anticipate the Minister’s reply; but it appears to me that some curious consequences could Row from the point that Senator Cohen is making. It seems to me that the proper analogy is with a person who has been convicted of larceny and sentenced to imprisonment for, say, 2 years. In that case Senator Cohen could well ask: if he decides to return the article or money that he stole, can he then be let out?’ It seems to me that that would be an absurd position. Likewise, if a person, after all the opportunities that he has had to indicate that he is prepared to do his national service, refuses to do it and is sentenced to a term of imprisonment, that is a penalty, and in my opinion that is the way it should remain.
– It cannot be remitted?
– It cannot be remitted, except under the general provisions- which apply outside section 4 of the Commonwealth Prisoners Act and which may involve some remission of sentence. The general position is that he is being punished as for a civil offence. 1 believe that he should be in no better position than anyone else who is being punished for a civil offence.
– Let me supplement what my colleague Senator Greenwood has contributed by following up the last part of his speech. The position is that in these circumstances a man has been compelled to respond to a call-up; in the face of the court he has been given an opportunity to enter into a recognisance to perform his service; he has refused to do so; and obviously he has deliberately elected to serve a term of civil imprisonment. The man who under proposed section 51a refuses to perform his duties in the course of rendering service has acted with deliberation and has refused to obey orders. As
Senator Greenwood says, it is unlikely that a man of that sort will subsequently recant and seek to do military duty as an escape from imprisonment in a civil prison.
But, for the information of the Committee, I point out that that situation has been considered very carefully by the Minister for Labour and National Service (Mr Bury) and the Attorney-General (Mr Bowen). In such circumstances, if the man is genuine in his conversion to the cause of military duty, under section 19a of the Crimes Act the Governor-General may be advised and, if he thinks it proper so to do, he may grant the man a licence to be at large. Of course, that licence would be on the condition that he continue his service in the Regular Army Supplement and so would be a guarantee that when at large he would perform his military duty as was intended.
Clause, as amended, agreed to.
Clause 21 (Person may be requested to answer questions and furnish information).
– I wish to make some observations on clause 21. It should be noted that we have had reference to pimping, as the Minister commented earlier today, in relation to this clause. I think it is appropriate and worth noting that the provisions embodied in this clause are different from those of the National Service Act 1951, which required persons to inform, to give information relating to the liability of persons to render service under the Act. Of course, under the Bill now before us, a person is required to give information relating to the prescribed matter. The prescribed matter is the liability that existed under the 1951 Act, plus the obl’igation to furnish the address and place of living or employment of a person who the Secretary has reason to believe is required to register under the Act and who has failed to register or to comply with the requirements of a notice served on him under the Act. Of course, it is this extension of the principal Act that makes the clause now before the Committee a real pimping clause in the eyes of the Opposition.
– I thought the honourable senator had forgotten that idea. Can he not get rid of the disease?
– It is a real disease to those who know the purpose of the whole of the Bill, lt is something that brings real fear of the requirements of the whole measure. This is the clause that has put such fear into the minds of members of the Opposition. Proposed new sub-section (2.) of section 52 states:
Where a person is required by a notice served on him under this section to answer any questions or furnish any information within 14 days after service of the notice, the person shall not refuse or fail within that period -
to answer truthfully those questions; or
to furnish that information. . . .
Again we see that mandatory provision. There is no use of words such as ‘without reasonable cause’. I presume that this proposed new sub-section relies heavily upon section 19b of the Crimes Act, which has been mentioned, for the purpose of dealing with a breach which might occur under extenuating circumstances. But, really, such exemptions should be written into the Act. Even if this can be dealt with under the Crimes Act there is still the provision, in proposed sub-section (3b.) (b) of section 52, under which a person will not be guilty of an offence if that person had, in the opinion of the court, before he was charged with the offence, reasonable cause, founded upon compassionate or other grounds, for the failure. We use the term ‘reasonable cause’ in other clauses of the Bill. Proposed sub-section (3b.) states:
A person is not guilty of an offence against this section for failing to answer truthfully any question, or failing to furnish any information, relating to another person if- ‘
And this exempts people for not pimping on someone else -
Member of the family’ is defined iri proposed sub-section (3d.) as the wife of the person, or the father, step-father, mother or step-mother of the person, and so on. The Bill fails to exclude many other relatives. Proposed sub-section (3 b.) continues:
Therefore if a person cannot establish that he had reasonable cause upon compassionate or other grounds for failing to answer a question, be will have committed a breach of the law. 1 am concerned with the remainder of the sub-section, which continues:
This is important because we can see that (he minister of religion, the legal practitioner or the registered medical practitioner is exempt only in respect of certain things. These people do not have to furnish evidence of a communication of confidence. I would seriously question whether the information the Army requires as defined in prescribed matter’ - the address, place of living and place of employment of a person - would come under this category. We could have the case of Tom Brown who is a parishioner and is a member of the sports club of a minister of religion. I do not think that in this instance the giving of the information could be classified as giving- information about a communication of confidence. 1. do not know how far communication of confidence extends to medical practitioners. 1 would not think the giving of the name and address of a person would constitute imparting a communication of confidence. Also, I do not think this would apply to the legal profession.
– I want to ask the indulgence . of the Committee and the Minister in relation to this clause. The Minister will appreciate that I have not had a chance to leave the chamber during the Committee stage of this Bill to attend to certain matters related to this clause to which 1 would like to give further consideration before pressing the attitude that I have indicated in the circulated document. 1 hope that the Minister will agree to postpone the clause until after the consideration of the next two clauses.
– 1 regret to say that I do not feel that there is justification for that request. This clause is the one that has attracted most debate and consideration in the past month. I am quite prepared to assist the honourable senator by stating the substance of the clause during which time he can crystallise his viewpoint on it. Then, if he has any objection, let us hear it. But anyone who has any objection to the clause in the form in which it is today is an ingenious person. I hope that now this clause has been presented to the Committee there will be candour in the Press and especially in those newspapers which have referred to the provisions of this clause as requiring pimping. I trust there will be respect for the true presentation of the legislation in this chamber and that the newspapers will be reminded that section 52 (I.) of the principal Act states:
The Secretary may, by notice in writing served on a person, require that person to answer such questions and furnish such information relating to the liability of that person or of another person to register, or render service under this Act as the Secretary puts to him or requires of him.
Lies have been printed, suggesting that the new Bill was a proposal to authorise pimping on families and that, in truth, confidential information might be disclosed.
Members of the Australian Democratic Labor Party and others brought to the Government’s attention the fact that, on a strict construction of language, the Bill would place an obligation upon parents to disclose information without having any protection under the law. To protect parents’, the Government has introduced proposed sub-section (3b.) of section 52, which provides that: a person is not guilty of an offence against this section if he is a member of a family. It was represented that the definition of the family was not wide enough. So the Government adopted the view that a. person who, in the opinion of the court, had reasonable cause, founded upon compassionate or other grounds, for failing to give the information should be exempted also. Then, in line with this principle, its attention having been directed to the need for the protection of relationships of a confidential nature, the Government went further and said that a minister of religion, a legal practitioner or a registered medical practitioner should also be protected by law from that requirement to answer or give information such as would reveal a confidence that had been acquired in the course of his profession. Anybody who is familiar with this department of the law knows that only in some States are medical practitioners protected in this respect. In my State of Tasmania they are protected by the law only in relation to civil proceedings before a court. They have no protection which excuses them from giving information in the case of a criminal offence. Legal practitioners have protection only in respect of matters that come within the scope of their legal duties in accepting confidences from clients who give those confidences for the purpose of obtaining legal advice. Ministers of religion do not have a general protection, but where they do have a protection by law it is confined to matters which have come to them by communication with their parishioners in connection with their religious consolation. So I submit that members of families, persons who in the opinion of the magistrate have reasonable cause for not giving information, legal practitioners, medical practitioners and ministers of religion have been given ample protection under this legislation. Proposed section 52 (3c.) provides:
In considering for the purposes of paragraph (b) of the last preceding sub-section whether a person had reasonable cause for failing lo answer truthfully any question, or failing to furnish any information, relating to another person, a court shall take into account any relationship between those persons other than a relationship existing by reason of the first-mentioned person being a member of the family of the other person.
So if you had a factual family relationship extending beyond that which comes within the strict definition of the clause the magistrate would say: ‘Taking into account all the circumstances, in my view this person has a reasonable cause for not giving the information’.
On the one hand the Government receives jeers for yielding to pressure. Now it is being suggested that in amending the clause to provide this protection the Government has not gone far enough. The Government is in the happy position where it has considered the representations which have been made and where they have merit has given expression to them in the form of this law. People use the expression pimp’ in an attempt to give an opprobrious meaning to the legislation, because that is the language to which they are accustomed, and in doing so they display a level of thinking which is inadequate for an understanding of the true principles of the amendments. But I have done my best to elucidate the amending legislation for the purpose of discussion or debate.
This morning Senator Cohen quoted a British statute as a model we should apply. Section 29 of the British statute of 1948 provided: lt shall be the duty of every local education authority, and of the governing body or other persons having the management of any university, school or other educational institution, to give to the Minister, on his request, such information in their possession, or reasonably available to them, about male persons receiving, or who have received education for which the local education authority are responsible, or, as the case may be, education at the university, school or other institution, as the Minister may from time to time require for the purpose of assisting his consideration of questions connected with their being called up under this Part of this Act.
Senator Cohen’s eulogies of the British statute did not extend to that section. We did have a similar provision in the Bill originally, but in deference to the argument: that it was a special provision directed to educational and other institutions that provision has not been persisted with. Therefore we have what I believe is a complete presentation of the Government’s altitude as to the persons who should be obliged by law to give information on this subject and persons who, under this Bill, are to be protected from that obligation. I suggest that the clause should not be capable of reasonable objection.
– The Minister is particularly sensitive about any suggestion that this Government wants to encourage pimps or informers. In this Bill the Government not only encourages pimps and informers but it provides that certain people shall be obliged to be pimps and informers. All the criticism that has been levelled against this Bill is amply justified. That criticism comes not only from political opponents of the Government but from responsible journals which have always supported the Government at election time and which have always, broadly speaking, approved the Government’s stand on most of the issues that face the country today. So it is not tendentious criticism and it should not be regarded by the Government as being ill informed criticism. On the contrary, the Government richly deserves the criticism and most of the’ epithets that have been levelled against it in public discussion of the Bill.
I wish to present the Opposition’s attitude to this clause. We think it affords an open sesame to informing. Clause 21 is very wide in its ramifications. Notwithstanding the concessions that have been made, not out of the Government’s goodness of heart but out of pressure, clause 21 is still fundamentally objectionable because it attempts to tighten many screws in the existing legislation. A great deal has been said about the fact that in the case of members of a family some exceptions have been made which are not at present provided for in the Act and which were not provided for in the Bill when it was first presented. It is perfectly plain to anybody who reads the Bill that, although it is no longer an offence for certain limited categories of persons to answer truthfully any questions put to them as a result of a summons to attend or a notice to furnish information, it is still an offence for a mother, father, brother, sister, step-father or step-mother of a boy to fail to attend at a time and place specified in a notice. That is the reality of the position. I know it will be said that that provision is in the existing Act, but we are now faced with the situation where everybody is a wake-up to what is involved in the Act. Everybody is a wake-up to the powers that the Government has and the new powers to which it wants to help itself.
– A lot of people, including the Opposition, have been asleep over the years.
– That may go for the honourable senator, too. He has not raised any questions previously about mothers and fathers.
– I corrected it in the first instance.
– The honourable senator did a good thing. He did the same thing as we would have done but the Government likes to listen to him because it needs his. vote to get this legislation through.
– And it respects his policy with regard to the defence of Australia.
– Senator Gair wants to claim, and the Government wants to claim, that this in some way gives families some protection, but that protection is illusory. Let the Minister say whether mothers and fathers and brothers and sisters are still required to attend in answer to a summons.
– Why did you not do something about it in 1964?
– That is 4 years ago.
– Why do you not tell the truth? You were asleep and you did not notice it.
– So was the honourable senator.
– I was not here.
– The honourable senator had colleagues in the Parliament and they did not do anything. It is no good adopting a holier than thou attitude in this matter. The fact is that we all are now alive to the position, and we can see perfectly clearly what is in the Government’s mind. What does it matter what we did in 1964, which was before the introduction of conscription for Vietnam and before the introduction of the major Government policy in relation to this matter?
– The principle is the same.
– Neither the Minister in charge nor Senator Gair will be able to deny that, as the clause provides:
The Secretary may, by notice in writing served on a person-
That means any person and it includes mothers, fathers, brothers, sisters and wives -
Put this to a mother or a father or a wife - . . to answer such questions, and to furnish such information, relating to a prescribed matter as the person specified in the notice puts to him or requires of him. (3.) Where a person is required by a notice served on him . . .
That ‘him’ might be a mother or a father or a wife -
The penalty is $200. There is no exception in the case of mothers, fathers, brothers, sisters or wives. There is no exception in the case of clergymen. There is no exception in the case of legal practitioners. There is no exception in the case of. registered medical practitioners. There is no exception in the case of registrars of universities, vicechancellors of universities, or officers of educational institutions, schools or hospitals. There are no exceptions at all. Any person served with a notice is required to attend. If anybody on the Government side suggests that this is something far-fetched and that the provision would never be used, I direct attention to the words of the Minister in introducing the Bill in the Senate when he said: lim Government has. since the introduction of the Bill, examined the whole matter again in further detail. . . .
This relates to clause 22, which the Government has taken out of the Bill. The Minister continued:
In the light of what has been put to it by educational authorities, particularly universities, it is now evident that to require information in its present form would present problems. . . . The Government has therefore decided not to proceed with the provision . . .
These arc the words that I emphasise: . . but to rely on other methods of identifying defaulters among the student group. As 1 have already implied, clause 21 does nol exclude education institutions from its cover.
Well, what are we talking about? What kind of protection is the Government claiming it has given under pressure to parents, medical practitioners, ministers of religion and so on? They are still required to attend under penalty. It is now a double penalty. The penalty was $100 under the old Act; it is $200 under this Bill.
– The same mothers.
– The same mothers, ‘ the same wives and the same ministers of religion, lt is perfectly true that’ if they turn up in response to the notice and are asked questions, their failure to answer truthfully would not render them liable to prosecution for that particular offence. That applies only to these limited categories. It does not apply to officers of educational institutions, to registrars of hospitals, to members of clubs, sporting bodies, church bodies or other voluntary groups to which a young man might belong, lt does not apply to any of these persons or to universities. There is no protection for them within the limited exceptions for which the Act provides. They are not required to answer truthfully. Suppose a mother, father, brother or wife receives a notice to attend next Tuesday at 2 o’clock at an office of the Department of Labour and National Service and to be subject to a penalty of $200 for failure to attend. Can one of these persons run the risk of being fined $200? If a notice is sent, presumably the Government intends to pursue the matter further if the person does not attend.
– If one of these persons cannot pay, what happens to him?
– We are not dealing with that. The Act does not deal with that situation. I do not know whether or not he would go to gaol. The penalty provided is $200. I do not know what happens in default of payment of the fine. When one of these persons did attend in response to a summons, he would be a pretty strong person who would say: ‘1 have been advised that 1 do not have to answer your questions truthfully. 1 can tell you a cock and bull story and you cannot prosecute me for failure to answer truthfully.’ Not every person will take legal advice. Most people who were served with a notice to attend would go along and would no doubt give the information required, although they might fall within the categories of persons who could not be prosecuted if they did not answer truthfully or if they said: ‘We will1 not give you the information because we are not obliged to do so as a matter of law.’
So our approach to this clause is that it is deceptive. We cannot support a clause that pretends lo do one thing and simply leaves the position substantially unaltered. The Government can do by this method what it has indicated it does not now want to do by another method. When you add to this the fact that in the next clause we are to consider a parent who, up till now, has been liable to prosecution only in the case of preventing a young man from complying with the obligation. Now the Government proposes to add insult to injury by providing that a parent, guardian or employer of a person required to register or render service under this Act shall not prevent that person from so doing or from complying with any other requirement of the Act. We are not dealing with this provision at the moment; it will be the next to be dealt with. The Government wants to put in the words hinder or in order to provide that a parent or guardian shall not hinder or prevent a person from serving. Might it not he that a parent who attends in answer to a summons and gives some untruthful answer to questions such as-
– That clause is not before the Committee.
– Order! The Minister directs attention to the fact that you are discussing another clause.
– Keep to the clause.
– The Minister may nol think that clause 22 is relevant to a discussion of this clause, but I do.
– If the honourable senator moves to have a debate on both clauses together, that is all1 right, but I do not want the matter to be discussed twice.
– I do not mind; 1 will accept the invitation to keep to the particular clause. 1 am saying that we should look at the power that is left to the Government which quite brazenly says: ‘We can get the information by other means because the universities are not excluded by clause 21’. Any person, either as an individual or as an officer of an educational institution who is served in that capacity is required, not only to attend at the time and place stipulated, but to give information and to answer truthfully any questions put to him. This applies to anybody except a limited number of persons, including certain members of: the family, clergymen, legal practitioners, medical practitioners and persons who may have some compassionate basis for refusal or a basis of communication of confidence. If a person refuses to furnish any information in his possession he is liable to a fine of $200. So. to abandon clause 22 is to abandon nothing. The Government still retains all the powers that it had under clause 22 which it was forced to abandon under the strongest pressure from educational institutions and from the public.
– Order! The honourable senator’s time has expired.
– Charges have been levelled by Senator Gair and by other honourable senators opposite at members of the Opposition for not taking action in 1964. I remind honourable senators that the gimmick at that time-
– On a point of order, Mr Chairman, what has this to do with the clause we are discussing?
– The honourable senator should wait and see.
– I am taking a point of order and 1 am asking the Chairman to give a ruling.
Order! I think that the honourable senator is replying to certain allegations made by Senator Gair.
– I will touch on them briefly. In 1964 we were told that the Indonesians were confronting us and that we had to prepare our forces in case we were attacked by Indonesia. That was the gimmick at that time.
– Who said that? I challenge the honourable senator to tell us who said that.
– Robert Gordon Menzies sold that to the public of Australia in 1964. After one million Indonesians had been killed in a coup-
– Really, Mr Chairman, while I do not object to a little forbearance I suggest that whatever was said in 1964 has no relevance to the clause under discussion. We are getting away from the clause. I suggest that the honourable senator should link his remarks to it.
– I will link my remarks up with what has been said in 1968.
Order! I think that in a debate in the Committee stages honourable senators are at liberty to make some reference to matters that have some relevance, to similar legislation or to circumstances that may be similar, and provided senators do not go to extremes they can be shown some reasonable latitude.
– I suggest, Mr Deputy Chairman, that since we are in Committee and are debating the Bill clause by clause the senator has the responsibility of linking his remarks to the clause under discussion.
-I shall link my remarks to clause 21, the relevant part of which reads:
Section 52 of the principal Act is amended by omitting sub-sections (1.) to (3.), inclusive, and inserting in their stead the following sub-sections: (1.) The Secretary may, by notice in writing served on a person -
require that person to answer, within fourteen days after the service of the notice, such questions as are specified in the notice and to furnish, within that period, such information as is required by the notice, being questions or information relating to a prescribed matter;
The penalty for failure to comply with that provision is $200. We have been talking about relevance. It seems to me that in 1968 we are anticipating 1988. George Orwell, in his book ‘Ninteen Eighty-Four’ anticipated big brother breathing down a person’s neck and seeking to know from a computer details of a person’s age, his position in the community and other information. I heard Senator Webster ask a question about educational authorities feeding details about school children into computers so that instead of having to call people to the Department of Labour and National Service all that was necessary was to push a button in the computer to get all the necessary information. If this Bill is not the thin edge of the wedge in establishing an inquisitorial gestapo system in Australia I have never seen one. This is the worst gestapo legislation since the Crimes Act provisions were extended.
– I rise to a point of order, Mr Chairman. It has been ruled over and over again that the word gestapo’ contravenes Standing Orders and I ask for a withdrawal of that word.
– All right. I will withdraw it and substitute ‘rotten, Hitlerite activity’.
– I ask for a withdrawal of that expression.
– Order! I suggest that Senator O’Byrne confine himself to reasonable language and withdraw the word ‘Hitlerite’, which suggests some autocratic power. This suggestion should not be made in a democratic institution such as this.
– I will withdraw it, Mr Deputy Chairman and substitute ‘a very pernicious underhand security service’.
Educational institutions are not excluded from this provision, because they must still provide information. While the traditional relationship that exists between a doctor and his patient is to be maintained, and his files concerning the health of his patient are not to be made available, such information can be had from hospital organisations. Hospital officers can be required to give information. My point is that this is an assault on civil liberties. It creates a new type of conscientious objector. An uncle, aunt, grandmother, school teacher or anyone else, may conscientiously object to this legislation. They may not want to go along and dob someone in, or pimp or snoop. They may want to assist a person who is a conscientious objector. Honourable senators opposite have the idea that the people are going to support, with open arms, the Government’s policy on national service. The Prime Minister (Mr Gorton) is claiming that 90% of the people who object to this legislation are nuts, yet his wife is prepared to take the money that these nuts collected and present it to the people of Saigon. However, that is beside the point.
The people who may be called up before an examiner of the Department of Labour and National Service may also be conscientious objectors. They will not be in the Services. They will be civilians and they should be able to exercise their civil rights. Yet this legislation provides that if they do not turn up for an examination they are liable to be fined. Then we have the Jack in office, too. If he does not like the colour of a person’s hair or the squint in his eye he can call that person up on a Friday, keep him there all afternoon, and make him return on the Monday to get the big push around. We have seen how far people who are armed with a little authority can push others around. We have seen what has happened to some people with whom the Senate was recently concerned.
The Government has submitted to socalled pressure from Senator Gair who is trying to claim kudos for political purposes, but I give credit to people in the community and to university organisations who have respect for civil liberty and who applied pressure on the Government and compelled it to remove obnoxious parts of the legislation. However, the legislation still permits an intrusion into the civil rights of people who may be called up before an examiner. They may not necessarily have to answer questions, but the average person in the community, when confronted by such a situation, does not know his rights. All he knows is that a $200 penalty may be involved and unless he has a legal adviser who can explain the implications and complications of this legislation he will follow out instructions because he thinks: I am for it’. The position is not made clear in the Bill and the Government is trying to evade the question by saying: ‘We have designed this legislation so that people will not have to lie in giving information and so that they will not have to be direct pimps.” But they have only to be put under a little pressure to become indirect pimps. I believe that the Senate and the people of Australia should know how the Government’s mind is working. This is the thin end of the wedge. It is an intrusion into the private lives of the people and it will spread until it covers the whole of the community. It can lead to a police state. I object to it.
– The fallacy of the generalities that have been discussed by Opposition members over a long period becomes quite apparent when in Committee we get down to the details of measures. With all respect to Senator O’Byrne, what he had to say indicates the paucity of any reasonable argument in opposition to the clause. The amendments proposed by clause 21 do not alter the general obligation that has always been contained in section 52 of the Act. lt extends the matters about which questions can be asked to include the address of a person’s place of living or employment, but only if the Secretary of the Department has reason to believe that there has been a failure to comply with the requirements of the Act. if this is an unreasonable extension, 1 would like to hear some reasons for saying that it is unreasonable. It goes to the very heart of a person’s obligation to register and to the very heart of the matters upon which the Secretary ought to be able to get information.
Let us consider what the legislation is about. It is concerned with imposing an obligation to register on all young men over the age of 19 years. Its fairness rests on the assumption that no-one shall escape the obligation. To ensure that there is this fairness, surely those charged with policing the Act ought to be equipped statutorily with power to require everybody to register. This legislation is concerned with the defence of the country, and this is a reasonable imposition. After all, there are certain basic protections with which any society must primarily be concerned. One is the preservation of law and order. Another is the preservation of the security and defence of the nation. A third is the protection of the revenue law of the community. The state must have the power to ensure that these objectives can be achieved. So it is that we have always had in the Income Tax Assessment Act a provision that persons can be compelled to give information concerning their own or any other person’s financial affairs and can be compelled to attend al the request of an officer of the Taxation Branch and to give that information. lt is part of the hollowness of the Opposition’s case that there has never been any suggestion that in those respects civil liberties have been affected, yet those provisions have been in the Income Tax Assessment Act for many years. It is only when the ulterior motive of the Opposition - that is, its objection to the Vietnam war and the Government’s policy in respect of it - seems to honourable senators opposite lo be in issue that they begin to see in this Bill a threat to civil liberties. I say that they are not genuine. If they were genuine there would have been objection to similar provisions in a host of other measures.
It is apparent, from an examination of clause 21 that the Secretary is able to send for or require information broadly of two characters. The first is information that can be obtained through documents. This however is contained in proposed sub-section (1.). The Secretary may require a person to answer such questions as are specified in a notice and to furnish such information as is required by the notice. That information, of course, is obtained simply by sending a document through the post or leaving a document to be answered. It may have a requirement that some further information be sent back, but it is the sort of information that is obtained without a face to face confrontation. The second type of information that is required is that which is obtained by questioning. This would normally be obtained in a face to face confrontation. The language is:
The Secretary may, by notice in writing served on a person -
Of course, it has been assumed that that must be and will always be at an office and that the person will be required to come away from the place where he may be living or working and go to that office. But there is no requirement that it be done in that way. All that need be done - I suggest the Department would be inclined to do it in this way rather than the way 1 have just mentioned - is to require a person to be present at a time and place that is specified. It may be his home or his place of employment. In considering how the power will be exercised by the Department, it is relevant to know -I have made my inquiries andI know that this is the position - that since the original provision was inserted in the Act in 1951, there has not been one prosecution under it. There is a certain unreality in the suggestion that there is likely to be a bigger threat to civil liberty under a provision that is admittedly more liberal and has more restraints on it, than there was under the original provision which was less liberal and had fewer restraints, particularly when there were no prosecutions under the original provision.
I was referring to paragraph (b) of proposed sub-section (1.), which requires a person to attend before a person specified in a notice and there to answer questions. Senator Cohen has made the point that a person is liable to be penalised if he does not attend.I suggest to the honourable senator that he should give some good reason for suggesting that a person should be excused from attending. After all. he is exonerated from any penalty if he is a relative, a member of the family, or if be has reasonable cause on compassionate grounds, or if he be a legal practitioner or a medical practitioner for not answering questions. How does a person plead an excuse of that kind for failing to answer questions? He must be able to do it. by way of answering a person who asks him the questions. Therefore, this objection to answering questions can only be taken if there is opportunity of a face to face confrontation. I see nothing unreasonable in requiring a person to attend. If he has an objection to answering questions, he may object to answering them and that is the place at which he will be able to do so.
I regret that, as a result of the pressures to which reference has been made, certain amendments have been madeto the original Bill. The purposes of the measure are such that we ought to have, and we ought to have given to the Executive, the power to ensure that everybody who is required to register does register. WhilstI know that the Minister hopes that this provision will be adequate and whilst I knowthat fears have been expressed by some peoplethat it will be adequate, it may well be that it is not as adequate as people hope and think it is. Nevertheless it is the measure that is before us. I certainly support it. I believe that the objections that have been raised arc objections that lack reason and are being put up merely as a smokescreen to justify general accusations which on examination have no real basis.
– I come into this discussion again because Senator Greenwood has put Ins finger on many of the points that indicate the attitude of the Opposition. I commend the responsible Press of Australia for giving a more correct interpretation of the Act than the Minister for Works (Senator Wright) thought it was. The Minister deprecated the Press for its interpretation. It is because the Act encourages pimping that the Opposition is so critical of it. As Senator Greenwood has said, it is because the Opposition is opposed to Australia’s participation in the war in Vietnam that we are so strongly opposed to this provision. When the Government proposes sending national servicemen to fight in an unjust, dirty war, there is certainly more need to oppose the proposal than there is when men are required for national service to defend Australia. There is a big difference between the two requirements. That is one of the reasons why we are so keen in our opposition to this proposal. Senator Greenwood’s statement that this relates only to persons who have failed to comply with the Act is not correct. Clause 2 1 reads:
The Secretary may, by notice in writing served on a person -
require that person to answer, within four- teen days after the service of the notice, such questions as are specified in the notice and to Furnish, within that period, such information as is required by the notice, being questions or information relating to a prescribed matter.
The prescribed matter is the liability of a person to register or render service under the Acf. The Act, as it stands, requires only that a person shall give information relating to the liability of someone to serve.
Senator Greenwood said that the original provision had only been extended. But the important thing is that the extension is one which requires people to pimp. A person is now to be required to give the authority asking the questions information relating to where a person may be found in order that he may be arrested, such as information relating to his place of employment, or his place of residence. If these people were required for the defence of the country, the altitude of the Opposition might possibly not be the same as it is today, although the question of civil liberties can crop up at any time.
Under present circumstances, only one in every four of the persons in the 20-yea.r age group is called up. In his second reading speech, the Minister for Works (Senator Wright) said that only a few of this number are not complying with the Act. But those few who are objecting and demonstrating in protest claim that they arc conscientious objectors to fighting in Vietnam. By the provisions it seeks to insert in the legislation, the Government is expressing a determination to get these people into the Army. If someone should escape the net, the Government says that the responsibility for seeing that they are apprehended should be on the whole of the community. The whole object of the clause under discussion is to make pimps of people.
As Senator Cohen has said, the clause really exempts no-one. Certain relatives are exempt from prosecution for failing to answer questions, but they are not exempt from attending at the place where they are to be cross-examined. It has been pointed out that some of these persons who are required to attend might not be as well educated as the interrogator and that therefore they will give information that they are not legally obliged to give. If the person required to attend happens to be a parent and he fails to give the required information, he cannot be prosecuted. But he must attend.
– ls not that the same as the provisions in the Income Tax Assessment Act?
– Here we have an honourable senator whose sense of values is such that he believes that refusing to give information against someone who is evading his financial responsibilities is no different from refusing to inform against a man who will not lay down his life. It is a matter of life on the one hand and of money on the other. Here we have an honourable senator who thinks there is no difference. Of course I am not opposed to a person informing on someone who is evading the payment of income tax, although I. do not like compulsion to inform. There is no similarity between that and pimping on a man who refuses to sacrifice 2 years of his life in prison, and it is quite unrealistic to suggest that there is.
I repeat that the whole purpose of this provision is to compel people to pimp. As we have been prohibited from referring to other clauses of the Bill, I content myself by saying that right throughout the Bill the main purpose is to compel people to pimp on the few individuals who do not want to serve and who have demonstrated their opposition to this war in Vietnam.
– The position seems to be that from first to last in this discussion, apart from extending the coverage of the Bill, the matters that we have alleged against it have noi been contradicted. There has been no denial by the Minister for Works (Senator Wright) that under the provisions of this clause a mother, a wife, a father, a brother or a sister can be called upon to attend for questioning, subject to a penalty. Senator Greenwood does not think that is unreasonable. He asks: ‘What is al) the song and dance about protecting the family?’ If you gel the mother, the father, the brother, or a clergyman or a doctor or a lawyer to attend and answer questions, you have achieved almost all that you would have accomplished-
– No. .
– Here we are dealing with people who do not run around with legal advice in their pockets - people who do not pay to consult lawyers if they get a summons to attend the Department of Labour and National Service to answer a few questions..
– They are intimidated.
– Of course they are. The average person in the community is deferential to authority. If a wife or mother attends and is asked: ‘Where is your husband?’ or ‘Where is your son?’ how many of them are going to say: ‘I have taken legal advice. I am not obliged to answer that question truthfully, therefore I do not propose to tell you anything?’ That is the first point. That is not denied.
The second point is that the Government makes no secret of the fact that it will use clause 21 to achieve everything that it could have achieved under clause 22. There is no mistaking the Minister’s statement when introducing the Bill that:
The Government has decided not to proceed with the provision but to reply on other methods. As I have already implied, clause 21 does not exclude educational institutions from this examination.
Is not that just another way of wagging the finger at the universities and educational institutions and saying: ‘We can get it in another way’.
– Why should they be sacrosanct?
– They should not necessarily be sacrosanct. But the Government is claiming credit for abandoning a clause which rendered them peculiarly liable to give information because of the large number of young men involved. I do not want to say anything more.
– Thank God.
-I repeat the argument-
– We have had this three times.
– I am determined that the Senate will understand the argument. If I have failed to make it clear to the Minister, I am sorry, but I do not intend to be put off by expressions like ‘Thank God’. This is a very important question that the Senate is debating. I believe that the Committee should face up to the challenge and defeat the clause.
That the clause stand as printed.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman)
Majority . . 3
-(Senator DrakeBrockman) - Order! Does the Committee grant Senator Bishop permission to leave the chamber? There being no objection, Senator Bishop may retire.
Question so resolved in the affirmative.
Clauses 23 and 24 - by leave - taken together.
– The reason thatI suggested that the two clauses be taken together is obvious. The amendments that the Bill seeks to make to sections 54 and 54a of the principal Act are in precisely the same words. At present section 54 provides:
A parent or guardian of a person required to register or render service under this Act shall not prevent that person from so doing or from complying with any other requirement of this Act. Penally: One hundred dollars.
The Bill seeks to make it an offence not only to prevent a person from registering or rendering service or otherwise complying with the Act but also an offence to hinder that person. Section 54a now slates:
An employer shall not prevent an employee from registering, or from rendering service, under this Act, or from complying with any requirement of this Act. Penalty: Two hundred dollars.
Again the Bill seeks to make it an offence not only to prevent an employee from registering and so on but also to hinder an employee. In the light of the general argument that we have addressed to this Bill I suggest that it is quite unnecessary for the Government to seek to expand its powers under this legislation in the direction contemplated by these two amendments. Let us consider the position of parents. A parent or a guardian is at present subject to a penalty of $100 for preventing a boy who is required to register or render service from doing so.
– That becomes $200.
– No, it remains at $100. In any case, I am concerned with the matter of principle at the moment, lt is not of much use the Government claiming that it is protecting a parent or a guardian of a boy against the severity of the Act if it seeks to extend its powers to enable it to prosecute a parent or a guardian. As everyone knows, the word ‘hinder’ is of very indefinite application. What constitutes hindering in this or any other context? Take the case of a parent who, in response to a summons to attend in accordance with clause 21, comes along and tells lies. Suppose he says ‘1 am here but T will not tell you anything. In fact 1 will give you a few misleading answers’. Or perhaps he docs not mention anything about deliberately telling lies but when asked where the boy is he tells a lie and says: ‘He is at so and so’.
It is perfectly true that the Act does not require a father or a mother to answer truthfully any question put to them, but will the Minister claim that conduct of that kind could not be held to be hindering the boy’s compliance with the Act? If that is what it amounts to, there can be no protection under clause 21 to which the Committee has now agreed. I would have thought that the Minister at least would have conceded that a court might find that obstructive conduct of that kind, even though it could not be used as evidence of a specific offence of failing to answer truthfully, would be relevant evidence to be considered on any prosecution of a parent for hindering a boy from complying with the Act. I should have thought, with respect, that that was obvious. If you could do it in that way then there is no real protection in clause 21 which the Opposition has just opposed but which the Committee has passed. If this is not the sort of conduct, evidence of which might be admissible in a prosecution for the offence of preventing or hindering, then what kind of conduct would amount to preventing and, in particular, what kind of conduct would amount to hindering?
To my mind, this amendment of the Act gives the Government’s game away. Why does it need this power if it is making concessions in relation to families? What possible protection can it be to have clause 21 saying: ‘You are not required to answer truthfully’ when, 1 suggest, the very failure to answer truthfully or the telling of lies, at any rate, could be regarded as conduct that was preventing or hindering the carrying out of the law. To my mind it shrieks of difficulty from the Government’s point of view. It has inserted this clause because, apparently, it needs a dragnet clause. Everywhere the Government looks it wants a dragnet. It wants every person to attend. It wants all persons, except those in specified categories, to give information. It does not want parents or guardians to have the protection of staying silent or of answering truthfully. What the Government gives away with one hand it takes back with the other hand. That is our protest against clause 23.
So far as clause 24. which relates to employers, is concerned, by clause 25 of the Bill the Government proposes to repeal the present section 55 and to add a new section 55, which requires an employer, who has reason to believe that a person employed by him has failed to comply with the Act or is liable to register, to give the name, address and place of living of the employee. What is the necessity for that provision? The employer has that obligation if clause 25 is agreed to - we hope that it will not be agreed lo. What is the point of widening this net? What is the point of using this dragnet? Why does the Government want to do so? Why do we need to use this apparatus of the police state to get people to inform on other people? These powers to require information are not “ given to policemen to apprehend murderers.
– There is an obligation on every citizen. Has the honourable senator heard of misprision of felony?
– -Yes, I have, but there is no statutory power given to police officers to require the attendance of a person accused or suspected of a crime, under a penalty of $200.
– Nor is there such power under the clause we are discussing.
– There is not under this clause, but there is under the other clause.
– L raise a point of order. We are dealing with clauses 23 and 24, which seek to insert the word ‘hinder’ in sections 54 and 54a of the Act. I submit that this argument travels completely beyond those clauses.
– If Senator Cohen connects his remarks wilh those two clauses he will be in order.
– I shall conclude my remarks on both of these clauses. I hope to hear from the Minister some explanation of the kind of conduct on the part of a parent that he would regard as falling withing the definition of ‘hinder’ and which would not fall within the definition of prevent’. What kind of circumstance has the Government in mind? What kind of abuses has the Government in mind in seeking to widen the dragnet? I think that the Committee is entitled to an explanation, because for the life of me I cannot see what protection is given by making concessions elsewhere in the Bill if this clause is now to become law. I reiterate again that it applies to mothers, fathers, and guardians. If the clause is carried they can be charged with hindering a boy from complying with the Act in the same way as they can be charged with preventing a boy from complying with the Act. Why does the Government need this power? What is the kind of conduct that it wants to stop by this amendment of the Act? The same comment applies to the clause 24 which deals with employers.
– Despite the deplorable exhibition of irresponsibility to which we have been treated in the reference to a Hitler state-
– Order! While I have been in the chair no mention has been made of a Hitler state.
– I beg your pardon, Sir, but I think that the record will prove otherwise.
– I referred to a police state.
– Senator Cohen referred to a police state. Despite the despicable insinuation that these clauses are a retrieval of the concessions granted in clause 21, all that I wish to say to the Committee that is thoughtful and has regard to the enactment of legislation as distinct from the sinister purpose of honeycombing legislation with loopholes, is that the sections which deal with the offence of preventing an employee or a person from registering are to be altered to provide that an employer, a parent or a guardian shall not prevent or hinder a person from complying with the Act.
The advocate for the Australian Labor Party himself has said that the word ‘binder’ has something of an indefinite content and therefore its application to the particular circumstances of the case depends upon the sound judgment of a magistrate. When we realise that it is a word of indefinite content, the possibility of a case being proved beyond a reasonable doubt exists only in very clear and evident circumstances. If the Committee adopts the amendment the existence of the legislation will prevent people from hindering the registration of a person in that it will provide a salutary influence because of the penalty of obstructing officers in the course of their duty, by inducing people not to interfere with mail and things of that sort. That is the proposition on which the Committee is being asked to vote.
– I want to raise a different point of view regarding this word ‘hinder’. The Minister has told us that it has an indefinite connotation. It could have a pretty broad connotation, and I am a little worried about this broadness in the context of the clauses. Where do we draw the line at hindering? At the present time I can see that somebody might prevent a lad from serving or carrying out his duties regarding the National Service Act. But if the word hinder’ is to be included in the Bill, where does hindering start? I have in mind a couple who came to Australia from Europe as migrants some 20 years ago. They had seen the horrors of war. They had lost the other members of their families. The events of the war years were so impressed on their minds that they had a horror of war. Their children were born in Australia and have grown up as Australian citizens. One of the boys sought exemption from national service on the ground of conscientious objection because of his family training. It seems to me that it would be logical to say that the parents of the boy had hindered, in the sense of this provision, because they had created a situation in which, at the time of the passing of this legislation, the boy believed that he could not take part in a war.
– The honourable senator can have my assurance that the proposed section as amended would not apply to any such case.
– But is the Minister’s assurance good enough when, under the legislation, ‘hinder’ can mean anything? It could even apply to me as a Quaker, because I have raised my family with those same beliefs. It could also be said that I had ‘hindered’.
-I do not think that any magistrate in the country would listen to such an argument.
– A magistrate might not, but the parents of the boy to whom I have referred, or I myself, could be charged. Perhapswe would be acquitted but what about costs, publicity, and so on? I think the provision is quite unnecessary and that all that is needed is the word prevent’. It is not necessary to mention hindering. We are concerned with an act of preventing. A nebulous interpretation of the word ‘hinder’ could involve actions taken in the past. I object to the proposed amendment.
That the clauses stand as printed.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman)
Majority . . 3
Question so resolved in the affirmative.
Sections 55 and 56 of the Principal Act are repealed and the following sections inserted in their stead: 54c. . . .
Penalty: Four hundred dollars.
Penalty: Two hundred dollars. (2.) A prosecution for an offence against the last preceding sub-section may be commenced at any lime. 56a. - (1.) This section applies in relation to a person who -
– I move:
Leave out proposed section 55.
Clause 25 imposes on employers an obligation to notify the Secretary of the Department, or the Registrar, of the names and addresses of employees who he has reason to believe are required to register under the Act and have not done so, have failed to comply with the requirements of a call-up notice, or have failed to render service under the Act. The fines imposed under the proposed section are heavier than those imposed on people directly involved in other breaches of the Act. I draw attention to the terms of the proposed section. They do not require an employer merely to answer questions when called upon. A positive obligation is placed on him in certain circumstances to serve notice in writing on the Department.
– He has to pimp without being asked.
– That is so. He has an obligation, subject to a penalty of $400, to say to himself: ‘I believe that Bill Jones who works for me has not complied with a call-up notice. He is presently employed by me. I will sit down and write a letter to the Department and post it, all at my expense.’ I do not suppose that the expense of postage is a determining factor. He is required to do all this even though no officer of the Department has interviewed him or made any request of him.
– Would every employer know of this provision?
– I suppose there are people who do not know all the terms of an Act. There are people who are ignorant of the fact that a particular statute imposes a positive obligation on them. I have never heard of such nonsense as is inherent in this provision. It would be different if the legislation went no further than to say that there is an obligation to answer questions, although even that would be far reaching. But this imposes a penalty of $400 on an employer who may not have read the Act.
– What about a fruit grower employing casual labour?
– Senator McClelland mentions a fruit grower employing casual labour, and that may be a case in point. But the obligation is to serve - what an absurd expression in this context - ‘either personally or by post, on the Secretary or a Registrar notice in writing of the name of the person, of the address of the place of living of the person last known to the employer and of the matter that he has reason so to believe in relation to the person.’ In other words he has to sit down and compose a letter giving particular information including the matter that he has reason so to believe in relation to that person. I wonder who dreamt this clause up. 1 cannot imagine that any employer in the country would think this was a reasonable thing to ask him to do. I wonder where this clause originated. It represents a preposterous impost to place on any man.
I suppose the average man does not walk around with a copy of the National Service Act in his pocket. I know I do not normally do so, although I have been doing it in recent days because I have had an obligation to deal with the legislation in this Parliament and in one or two other places. But I certainly could not recite the precise words of clause 25. How, then, can the Government expect a casual fruit grower to do so? How could it expect a small employer with one or two employees to do so?
SenatorO’Byrne - Such as a station owner with a few shearers.
– That is another case in point.
– Order! There are too many interjections.
– I am getting some assistance at the moment, Mr Chairman, and most of it is welcome, but I expect some unwelcome opposition in due course. However, I am constrained to make my point on this matter. The more I consider this clause the more 1 wonder how anybody could give his vote in favour of it, no matter what his politics were. Senator Webster is nodding his head. I do not know whether he agrees with me.
– I can assure the honourable senator that 1 am not going to sleep.
– Usually the nodding of a head means assent. My feeling about this matter is that nobody could fully comply with his statutory obligation if this became law unless he carried around a copy of the National Service Act in his pocket. If the Government is seriously intending to put this provision into the Act I suggest that it should ascertain with some accuracy the number of employersin the Australian community - perhaps it may amount to a million, I do not know, or perhaps even more - and should then see that every one of them gets a copy of section 55 as it will appear in the Act if this clause is agreed to. Otherwise the Government will be placing on employers, even if the obligation to inform were in itself reasonable, a further and wholely unreasonable obligation.
– I know the honourable senator thinks it is time for bedtime stories.
– This is not a bedtime story. I will invite the Minister to say what he thinks the clause means and whether my construction of it is not 100% accurate.
Sitting suspended from 6 to 8 p.m.
– The Opposition has moved an amendment seeking the deletion of proposed new section 55, which is contained in clause 25 of the Bill. The proposed section places upon employers an obligation to notify the Secretary of the Department of Labour and National Service or the Registrar of the names and addresses of employees who have failed to register or to render service under the Act. The proposed section reads:
Where at any time an employer has reason to believe-
I stress the words ‘has reason to believe’. It is not necessary that an employer be aware of something; he need have only reason to believe - that a person employed by him -
In these circumstances an employer is obliged to notify the Secretary of the Department or the Registrar within 7 days of his forming the belief in respect of his employee. This afternoon the Minister suggested to Senator Cohen that the Opposition was delving into the realms of fantasy in its opposition to the proposed section, but the reality of the situation is that the Government is seeking to place the small employer in the same category as a largegovernment or semi-government instrumentality or other large employer of labour.
For instance, the Government has never said how many persons are alleged to have defaulted under the Act or to have dodged the draft, if there are any persons in this category the majority of them, f suggest, have been itinerant workers - casual workers who move from town to town, village to village and farm to farm seeking work. Under the proposed section the Government expects every small farmer who employs casual labour and every other small employer, such as a hotel keeper in a country town, to ask his employees whether they are 20 years of age, whether they have registered under the Act, whether they have received their call-up notices and whether they are absent without leave from the armed forces.
– There is no obligation under the proposed section for an employer to ask any of those questions.
– If the employer has reason to believe certain things, surely in notifying the Department of his belief he would have to give a reason for it. Within 7 days of forming his belief an employer has to contact the Department or write a letter to the Secretary or Registrar, advising that he has a belief that a person employed by him is contravening a section or sections of the Act. If an employer forms such a belief and does not notify the Department, he will be liable to a penalty of $400. It may be all right for the Government to ask a municipal or shire council, a district water board, an electricity undertaking or a local soft drink manufacturer - there is a soft drink factory in most country towns these days - all of whom employ many casual workers, to notify the Department of these things but does the Government expect every banana grower in New South Wales who employs casual labour to pick his bananas and every small fruit grower in the Murrumbidgee Irrigation Area, many of whom are New Australians, to be aware that if he forms a belief that one of his employees may be contravening the Act, under proposed section 55 he must notify the Department?
– That is not what the section says.
– This is the way I see the position. If I am wrong I ask the Minister to correct me.
– Give the Minister a chance to answer.
– Just let me have another 2 or 3 minutes. Many small primary producers employing itinerant workers are not members of a primary producers organisation or a trade association. They are to be placed in the same category as large undertakings, such as a government or semi-government instrumentality. 1 know that the New South Wales Public Service Board has already issued an instruction to its employees to notify their departments when they register under the Act and to produce proof of registration to the department in which they are employed.
– That is not an instruction from the Government, is it?
– It is an instruction from the New South Wales Public Service Board to all officers likely to reach 20 years of age in the near future. The Board is obtaining the information so that it in turn may comply with its obligation to notify the Secretary of the Department of Labour and National Service. If this section is implemented how does the Government intend to bring to the notice of the various small employers throughout the length and breadth of Australia their obligation under the Act? Frankly, having regard to the large number of itinerant workers employed in New South Wales - I am sure Senator Keeffe could refer to many such workers in Queensland - I think it will be very difficult effectively to police this provision. In my opinion the proposed section has been drawn very loosely and 1 believe that it is only right that the Committee should reject it.
– The Labor Party has indulged in an extravaganza of argument to try to make a case against proposed section 55. Honourable senators opposite have not had the candour to refer to the section that it is proposed to replace. The existing section 55 provides: (1.) A person shall not employ, or retain in bis employment for more than 7 days, a person who is required to register under this Act and has not registered, or .a person who - has been called up for service in accordance with’ this Act and has failed to render that service.
It then provides that the employer has a defence if he believed on reasonable grounds that the employee had registered.
– To what section is the Minister referring?
– I am referring to section 55 of the existing Act. In the case of a man by the name of White, publicity was given to the fact that his default in regard to his national service obligation caused the forfeiture of his employment. In this democratic Parliament, rather than inflame a situation that had flared up and given rise to emotion, the Government allowed the incident to pass by and then, at the first opportunity when the atmosphere had cooled, brought in legislation which in future will not require a defaulter to forfeit his employment but will require the employer to carry an obligation.
That obligation has been completely distorted after dinner by Senator McClelland and before dinner by Senator Cohen for the purpose of making an extravagent argument and trying to induce anybody who might hear them to think that a direful proposal is before the Committee. We propose to replace the provision that requires forfeiture of employment with a provision that simply says that where at any time an employer has reason to believe that a person employed by him is a. defaulter he shall notify the Secretary of the Department of Labour and National Service of the place of living of the employee and the circumstances that lead him to believe that the employee is a defaulter. The words ‘where an employer has reason to believe’ have been the subject of considerable attention in the law courts and their meaning is well understood. In the eyes of the law they mean what any ordinary speaker of English would understand them to mean; that is to say, not, as was stated to me in an interview just before dinner, ‘where an employer, suspects’, but ‘where an employer has reason to believe’. lt is a complete inversion of fact for Senator McClelland to state that the employer is under art obligation to make inquiries of the employee as to his eligibility for service under the Act. The employer is under no such obligation at all under this clause. But if, at any time in the course of his employment of a person, he has reason not to suspect but to believe that the employee is a defaulter he is obliged to inform the Department.
– How does the Minister suggest an employer would gain that knowledge?
– I cannot bring all the experience of life before the honourable senator now. Some employers and employees have most cordial relations. From the ordinary intercourse of life an employer may gain certain information. It is always a question for the court to determine whether the employer has reason not to suspect but to believe. ‘Reason’ is a word that could not be applied to some of the arguments that we have heard here today and the irrational ideas that have emanated from the Opposition. They could not be classified within the realms of reason at all. Before the employer comes under any obligation to communicate his belief as to default he must have reason to believe. Then all that he is obliged to do is to send the Department a letter notifying that default.
At the present time, under the Income Tax Act every employer is bound to state in a schedule attached to his return the name, place of residence and the wages receipts of each employee. Similarly, under the Pay-roll Tax Act, for revenue purposes an employer is bound to disclose the name, address and remuneration of each employee. In the realm of industrial law, to use the language of the Opposition, for the purpose of pimping on those who are scabbing under an award an inspector has the right to enter any industrial undertaking and ask for the production of the books or the name of the most confidential clerk.
– Members of the Opposition say that that is all right.
– That is quite so. lt is all right for the purpose of hounding out scabs under universal unionism, but it is not all right . to require an employer to give information where he has reason to believe that an employee is a defaulter, for the purpose of constituting a national service for the defence of the country. That is what members of the Opposition say. That is the basis upon which I leave this proposition to the judgment of the Committee.
– We have listened to Senator Wright practically all day, from, early this morning when he did his best to explain the various provisions of the legislation until now when he has disregarded the provisions of the legislation and used his powers of eloquence to see how much scorn and abuse he can heap on senators on this side of the chamber and the Labor Party. I believe that this situation is brought about by the fact that the statements that we made in the second reading debate to the effect that the sole purpose of this Bill was to encourage pimping are being borne out now when we are talcing the Bill clause by clause. After the adoption of several clauses we can see that that is the true purpose of this Bill.
The previous inability to retain employment was a severe penalty, but the Government is not concerned with employment now. There will be no-one in this age group to employ: they will be in gaol under this legislation. The previous provision was concerned with employment. The provision that we are considering is concerned with informing and supplying information, ft is another in the series of pimping clauses in this Bill. We are told of the case of William White. This clause would nol apply to him at all. He was known to the Department. He was an employee of the New South Wales Education Department. Under the Act he had to be dismissed. Subsequently he stated publicly that he gol someone to employ him. So there was a breach of the Act without a prosecution. Similar action will not constitute a breach of the Act in the future. Under the new provisions White would be charged and sentenced to imprisonment in a civil prison.
Under this clause the employer has an obligation to make a report as soon as he has reason to believe that an employee is a defaulter. Within 7 days he has to pimp or inform on his employee. That is the obligation under this clause. Very few employers employing people of this age would nol know the age of their employees. Obviously they would know the addresses of their employees. It is common for employers to ask for that information when a person comes along for engagement. In the realm of apprentices and juvenile workers, under awards employers have an obligation to pay the correct award wages.
Especially when an employer cannot judge on appearance whether an employee is over or under 21 years of age, the employer must find out the employee’s age. I suppose that in conversation the employer would come to know whether an employee had registered or had to register for national service. Under this clause he is under an obligation to inform on his employee. This is the whole purpose of the clause. It is the difference between the proposed sections in this clause and the sections of the principal Act that they will replace. Senator Greenwood showed a lack of appreciation of what is involved when he made a comparison between this clause and provisions in taxation legislation. Likewise, on the question of what is termed a scab, a comparison was made with industry and the right of inspection for the purpose of policing acts of the Commonwealth where benefits are derived. But in this case we are dealing with men who have conscientious objections which are not covered by an Act and which relate to a particular war, with the result that they are not a benefit to the nation, they are not wanted in the Army, and they might go to prison. Under the present legislation, these men are a liability to the nation. If they are willing to serve as national servicemen there will be the possibility of a threat upon their life. This is the comparison that has been made by honourable senators from the other side who have compared this Bill with taxation legislation and the policing of industrial awards. The Government docs not need this power. It does not have it in relation to rapists and murderers. Why does the Government want this power in respect of 20-year-old youths? This power is nol given to the Government in laws concerning the most serious crimes in the criminal calendar. Yet. the Government wants to force lads into national service because, politically, they are fighting it on a policy that is not supported by the Australian public at present. The Government has stated its determination to enforce its policy on Vietnam by putting through the Parliament an Act obliging 20-year-old lads, without any need to do so, to fight in the Services for the defence of the country.
– At the second reading stage, I indicated that there were two provisions of the Bill to which I had some objection. I mentioned that they were the proposed new section 55 and part of proposed new section 56. My main objection to proposed new section 55 falls in two areas. Firstly, I believe that there should be some recognition by the authorities of the volume of work, that the Government is placing on employers. In Victoria over the last few years, people associated with employer organisations have found that the economic efficiency of businesses is being eroded by the demands of governments for the rilling out of forms to notify information to various authorities. We have recently had an exceptional case of this in Victoria, where for the purposes of new tax records are required to be kept and notification of certain matters has to be given. I do not say that this particularly affects the very small employer, but it certainly does affect the primary producer, who carries a heavy load in respect of the filling in of returns. The supply of information on forms that have to be sent to various departments is a very heavy imposition on large employers. I believe that the Minister may recognise this, because in proposed new section 55 something is required of an employer in making a complete survey of his staff. I observe that the Minister shakes his head, apparently to indicate that this does not apply.
– I negative the suggestion.
– Does the Minister suggest that an employer is not obliged to do this sort of thing in this instance?
– There is no obligation on the employer to make any inquiries.
– I accept the Minister’s comment. Indeed, I have great confidence that he and his advisers have looked very closely into both of these matters since I last spoke to them and have decided that both of these proposed new sections should stay in the Bill. There is probably wisdom in the Minister’s suggestion that they are required. I do not doubt that this is the attitude that the Minister takes. But I believe that the wording of proposed new section 55 does require action by the employer. Certainly, 1 could not accept, on the wording of the provision, that there is no obligation on the employer to take any action in this matter. Indeed, it would be impossible for an employer even to have reason to believe that he had to supply information unless he had made some inquiries. Where an inquiry is made, information could be obtained from the payroll or from the various foremen throughout the factory to ascertain those employees who were of the relevant age group or who were about to become liable to call-up. But it. should not be the duty of the employer to have to follow through ballots and call-up dates in order to determine whether an employee may be in this category. However, I believe that is the position and 1 am very pleased that the Minister indicates that there is no obligation whatsoever on an employer to make an inquiry in this matter.
– I agree with that entirely.
– This is a very pleasing comment. Employers’ organisations have raised this with me in relation to this Bill. They will be pleased to hear that this clause imposes on an employer no obligation whatsoever to make inquiries.
But let us look at the original section 55 which is now to be deleted. In the existing provision there is only the requirement that an employer shall not employ an individual who was called up for national service. The penalty in this case is $200. But it was a defence for an employer charged under that section to prove that he believed, on reasonable grounds, that the person employed or retained in employment was not required to register, or had registered or that he was not liable to render service, as the case may be. I believe there was a sufficient defence for an employer in this case. Perhaps my comments in relation to this matter can be lel lie, because we have the assurance of the Minister that proposed new section 55 will impose no obligation on the employer. Having satisfied myself on this point, I am pleased to leave the matter there. I thought that the wording of the proposed new section was very loose and that it would require an employer to take some action in respect of which he would have to make inquiries if he was to have reason to believe the things specified.
– No, certainly not.
– The Minister has again indicated that this is not so. I am pleased that this point has been made quite clear.
– I intervene in the debate only to obtain some clarification of the Minister’s remarks about the Bill White case. The Minister did not seem to finish his conclusions. As I understand it, White, following the upheaval that arose in relation to his career, finished up in what is more or less an educational backwater at the Blackfriars Correspondence School. I do not know what the Minister meant us to understand. Was he saying that Bill White got off very lightly or was he trying to argue that this Bill was intended to block up loopholes and prevent future cases like that of Bill White? I did not follow him and I would like him to explain what he meant.
– What I intended to convey was that, even in an instance such as the White case, the existing law involved forfeiture of employment. That was too harsh a sanction and the Government, after the fuss had died down, took the first available opportunity to repeal the provision in the Act requiring forfeiture of employment and to replace it by the provision in the clause now before the Committee, under which it will not be obligatory on an employer to terminate the employment of an employee. There will not be an obligation on the employer simply because he has reason to believe that an employee is 20 years of age and liable for service, that he is a person who has been balloted in or that he is a person on whom a call-up notice has been served. Under the proposed new section, even if an employer knew all the facts, unless he had reason to believe that his employee was a defaulter, he would be under no obligation to send any notice to the Department. An employer would be required to send in a notice only when he had information which a court thought would afford reason for that employer to believe, not suspect, that the employee was not an eligible person but a defaulter. Then and only then would the proposed section place an obligation on that employer to notify the Department.
Proposed new section 55 is consistent with provisions that are multiplied in our criminal law. Any citizen who harbours a person who has escaped from justice is an accessory after the fact or becomes liable for complicity in an escape, but he has to know that the person he harbours is a fugitive from justice - either a prisoner or a person liable to arrest. Under the ordinary law of our civil codes anybody who harbours a fugitive from justice himself becomes liable to justice. Proposed new section 55 is in line with that principle. An employer is not bound to make any inquiries whatsoever. If a young man 20 years of age presents himself for employment to John Smith, John Smith will not be bound to ask: ‘Have you fulfilled your national service? Were you balloted in?’ He may take the young man on in his employment. Having regard to the fact that about one-eighth of the 20-year-olds who register are balloted in and are called up, it stands to reason that the mere fact that one is a 20-year-old does not give an employer any reason to believe that he is a defaulter. So an employer will be under no obligation to inquire into the private affairs of an employee or to ascertain whether he is liable for military service. If in the judgment of the court there comes to the mind of the employer reason, not nonsense, to believe, not suspect, that a default has been made in the employee’s obligations, then and only then will this section require the employer to notify the default to the Department.
– The Minister’s explanation in my opinion is far from satisfactory.
– I said that I do not appeal to irrationality.
– I will appeal to the rationality of honourable senators. What the Minister said did nol betray any highminded ness, if I may say so, on the Government’s part. Under the proposed new sub-section, unless an employer had served notice in writing of the name of the person employed by him, of the address of the place of living of that person last known to him and of the matter that he had reason to belive in relation to that person, he would be liable to a fine of $400 if he had reason to believe that that person was a defaulter in any one or more of the three respects mentioned in paragraphs (a), (b) and (c). From what the Minister says it is a perfectly good defence for the employer when asked: ‘Did you believe this man was a defaulter?’ to say: ‘No. sir, I only suspected it’. That would be a defence.
– You know that would be a defence.
– Of course it would be a defence. The Minister referred to the employer who merely suspected an offence.
– I referred to the employer who had reason to believe certain things.
– I am saying that an employer who suspected an offence and made no inquiry would not be caught by the section.
– Certainly not.
– If that is the position every employer will have to decide whether his own state of mind is that of either suspecting or believing. I do not know the total number of employers in Australia, but every employer will have to carry around a copy of proposed new section 55, if it becomes law, because he must first of all know the timing. He will be required not just to answer a question but to volunteer some information. He will have to do it in writing either personally or by post and he will be liable to a penalty of $400 if he does not. He will have to decide whether his state of mind is merely suspicion or belief. Every employer will have to ask himself this question in order to ascertain whether he has some obligation under the Act. He might say: ‘No, I do not really believe it; I just suspect it. So I will lie doggo. T will not be indicted and dealt with under the Act.’ Not every person in the community is capable of distinguishing between a strong suspicion and a mild belief, and if an employer should be wrong he will have to take the responsibility of informing the Department. If an employer wanted to be extra cautious, protect his rights, and not subject himself to a fine of $400, if he knew the name and address of the defaulter he would comply with this absurd provision and notify the Department. I would like to know how the Minister proposes to draw the attention of every employer in the community to his obligation under the proposed new section. 1 am disappointed to note that Senator Webster is so easily satisfied with the assurance of the Government. If an employer has reason to believe that a person employed by him is a defaulter he must notify the Department before the expiration of 7 days after that or the expiration of 1 month after the date of commencement of the National Service Act 1968, whichever is the later. How is the employer to interpret his obligation under this section? Will the Department inform him of his obligation? Will the Department circulate every employer so that he will know he has an obligation not only to notify the Department but to do so within a particular time, and that if he does not do it within 7 days or within 1 month after the date of the enactment of this Bill he will be liable to a penalty of $400? Perhaps if he sends in his notice a couple of days late he will be fined only a couple of hundred dollars or $10. But he will still be in default under this section if he fails to comply with the time schedule. I remain quite unconvinced by what the Minister has said. I find it almost inconceivable that a government could have dreamt up a provision which seeks to place an obligation on an employer to write a letter disclosing the name and address of an employee who he has reason to believe is a defaulter, and to do so within a particular time, when he has not received any notice from the Department about the contents of the provision. Of course, it replaces a different provision. Under the old provision the employer was required to sack a man within 7 days after obtaining knowledge or forming a belief. Now he is required, if he has the requisite state of mind - reason to believe - only to inform on him.
– Do I gather from what you have said that you would be prepared to inform on a tax dodger but not on someone who was trying to evade military service?
– I have not informed on tax dodgers. There is nothing of the informer about me and I do not like any legislation that imposes such an obligation on a citizen, because it seems to me to be completely outrageous that an employer should be put in this position, without notice to him of any time factor that is involved and without having his attention drawn to it. Honourable senators will not tell me that everybody reads newspaper reports of our parliamentary debates, has an exact knowledge of the provisions of the National Service Act or carries a copy of it in his pocket. If the Government is to enact legislation like this, quite apart from the morals and merits of the matter it has an obligation to bring it to the attention of employers, and for the life of me f cannot see that that is even contemplated here.
– There is a hollowness about Senator Cohen’s pleas on behalf of the employer. The hollowness is apparent when one considers the section as it is and what the proposal provides. Section S3 was last before the Senate in 1966. It imposes upon an employer an absolute obligation to dismiss a person in his employment who was required to register and had not registered, or who had been called up and had not rendered service. That obligation is absolute but there is, nevertheless, a defence open to him if he believes on reasonable grounds that the person employed is not required to register or is not liable to render service. That is the same test - with a different emphasis, naturally - as the test which is proposed now. Yet did Senator Cohen or the Australian Labor Party rise in eloquent, exuberant indignation when the legislation, was before the Senate earlier and oppose it, or is it this particular Bill which is the occasion for so much opposition from the Labor Party? Is this the occasion for which it has produced out of the hat this particular argument?
The matter can be looked at fairly clearly if honourable senators will place themselves in the position of an employer just to test this particular position. If any senator has an employee and is aware of what this particular provision requires, he asks himself: ‘When do I have to take action?’ The only time that he has to take action is when he has reason to believe that the employee is a defaulter. When and how does he get that reason or basis for his belief?
– He cannot shut his mind to that which is going on all around him. He has a responsibility.
– Appreciating what Senator Cavanagh says, 1 say that he does not shut his mind, but there has to be some fact, something objective on which his attention can be focussed and on which he can form his belief. How is he to find that out? I suggest that there would be only one way in which a person could obtain this foundation for a belief, and that would be if he was told by the employee that the employee had not registered or that he refused to obey the call-up. That would be the foundation upon which the employer could have the belief. By instancing that one case I do not want to say that that would be the only case that would arise. But thinking about it while 1 have been listening to the pleas that have been made, I have not been able to visualise any other circumstances in which the matter could arise. I challenge the Opposition to suggest any case other than the one I have suggested in which an employer would have reason to believe
Senator Cohen suggested that there was a world of difference between a suspicion and a reasonable belief. Respectfully, I would agree with him but 1 suggest that the real problem which he is posing is not a problem that will really arise. It will nol arise because, after all, if a person is in jeopardy under this provision he is ‘ in jeopardy because he is liable to prosecution and the prosecutor would have to establish that a particular employer had reason to believe. Though it is a long time since Senator Cohen appeared in the police courts, I am sure that he would welcome being defence counsel defending an employer on the basis that the prosecution had failed to establish that he did not have reason for his belief. I suggest, therefore, that the problems that are being posed are not real problems.
There is a salutary benefit to be obtained from having this provision in the legislation just as there was a salutary benefit from having the provision which this clause will replace. That is the great advantage, because people know their obligation, and the need for prosecution seldom arises. I would suspect that in this particular case it is unlikely to arise because relatively few people are affected. The real justification for this measure - this takes up the point that
Senator Cavanagh raised ; is that as legislation requiring all 19-year old youths to register has been passed the Government would be lacking in what is its plain duty if it did not seek to enact provisions to ensure that those who wanted to shirk or dodge that obligation could be detected and could be prosecuted, and this provision is necessary for that end.
– For the last hour we have been discussing this provision and not until the last 10 minutes have we found that it is meaningless. The Minister has said that these provisions are here but nobody is bound to take notice of them. It appears to me that the only persons bound to take notice of anything are the 20-year old youths. The employer is completely exonerated. He is allowed not to take notice under certain conditions, even if he has a feeling or a belief that somebody is breaking the law in regard to call-up.
– That is only if you accept the Minister’s explanation.
– All right. Nevertheless, another senator who is a legal gentleman has explained that so far as he could see the employer would get to know about this matter only through some contact with somebody else - I would think in the social arena. Despite what Senator Wright said, I do not think that employers and employees as yet have their social activities together. The employer could have a little natter or hear a whisper at a dance hall or somewhere else, or he could get the information in another way. Somebody could whisper in his ear that a certain 20- year old ought to be sacked, as he was eligible and should be called up. This might be so that the informer could get the job of the 20-year old. ft might be a very good reason from the point of view of the informer.
– If it was a whisper, how would the prosecution know about it?
– The employer, as the honourable senator said, has to find out. The honourable senator doubted whether the employer had any contact with the workers in order to find out, but it may be that somebody would tell him. The mother of the 20-year old certainly would not be telling on him. I could not imagine any Australian mother putting her son in under any circumstances. So a great deal of this Bill, I believe, is quite useless. The Government itself admits that it cannot be implemented. There are many unlesses and ifs in it for some reason or other. Senator Greenwood tries to explain why, although it is useless, we still must have this provision to make the Bill look like a Bill. It will not do any harm and it will not do any good. We have been arguing for an hour about it. During the early part of this debate I was concerned about the intrusion into industrial relations between employers and employees. I was worried that for the first time in history employers could put their employees in for military service, but now I find that they cannot do so and we have been talking for1? hours for no reason that I can see. I appeal to the Minister to withdraw the section in the interests of clarity and of industrial relations in Australia.
That the words proposed to be left out (Senator Cohen’s amendment) be left out.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman)
Majority . . . . 2
Question so resolved in the negative.
– I move:
In proposed new section56 (1.), omit ‘registered or is liable to register under this Act and is not included in a prescribed class of persons’, insert been called up for service under this Act’.
At present proposed new section 56(1.) reads:
A person who has registered or is liable to register under this Act and is not included in a prescribed class of persons shall not leave Australia before commencing to render service under this Act, or after having commencedto render that service but before completing that service, unless he has obtained the permission in writing of the Secretary.
Penalty: Two hundred dollars.
The word ‘Secretary’ relates to the Secretary of the Department of Labour and National Service. As amended by my amendment the section would read:
A person who has been called up for service under this Act shall not leave Australia before commencing to render service under this Act,
It is a very simple amendment. We believe that as it stands the provision is an unwarranted interference with freedom of travel and what we propose to do is to limit the class of person involved to those who have been called up for service. We concede that they should not leave Australia before commencing to render service under this Act but we do not agree that any person who is registered or is liable to register under the Act and is not included in a prescribed class of persons - that is presumably some exempted group or reserve group - should be liable to the penalty provided in the Act. We think that the new section as proposed is unnecessarily restrictive of freedom of travel because it means that no person of the prescribed age may leave Australia at all before commencing to render service under the Act, which is very different from what we propose.
I have argued again and again in the Committee stages and I do not want to repeat ad nauseam that the Government is taking unto itself a wide spectrum of powers. This seems to be an awfully overloaded, complicated and top-heavy piece of machinery to catch the small number of defaulters that the Minister talked about in his second reading speech. The Government is using a sledge hammer to crack a nut. It is taking over very wide powers without any real justification having been shown, and we think that what is proposed by the Government should be further limited in the way thatI have described.
– The Deputy Leader of the Opposition (Senator Cohen) has made it clear that he only seeks to modify the provision and does not object to it in its entirety. It is interesting to notice that his modification would make this difference: Whereas we wish to say that any person who has registered or is liable to register and is not included in a prescribed class of persons shall not leave Australia without permission, Senator Cohen wishes to make the provision apply only to those persons who have been called up. He has referred to the few defaulters that we want to apprehend. Apparently the amendment is designed to enable those few defaulters to escape after service of the notice and before call-up. The merits of that proposal are obvious!
That the words proposed to be left out (Senator Cohen’s amendment) be left out.
The Committee divided. (The Chairman - Senator T. C. Drake-Brockman)
Majority . . . . 4
Question so resolved in the negative.
Senator COHEN (Victoria) 19.5]- I move:
Proposed section 56a deals with the liability of owners or charterers of ships or aircraft, or employees of such owners or charterers, who have reason to believe that a person is a person in relation to whom this section applies, not to provide an authority for that person to leave Australia by those ships or aircraft, unless and until the permission in writing of the Secretary has been presented to the owner or charterer or to an employee. Where an authority has been given in contravention of this provision, the owner or charterer is guilty of an offence punishable upon conviction by a fine not exceeding $400.
Sub-section (4.) of the proposed section provides:
Where an agent of the owner or charterer of a ship or aircraft, or an employee of the agent, has reason to believe that a person is a person in relation to whom this section applies, an authority for that person to leave Australia by that ship or aircraft shall not be given by the agent, or by an employee of the agent, to that person unless and until the permission in writing of the Secretary h:is been presented to the agent or to an employee of the agent.
Where an authority has been given by an agent in contravention of proposed subsection (4.), the agent is guilty of an offence punishable upon conviction by a fine not exceeding $400. The only saving grace in the proposed section is that it is not to apply until a date to be fixed by the Minister by notice published in the ‘Gazette’. Apparently satisfactory arrangements have not yet been worked out for the administration of the provision.
The Opposition opposes the proposed section. It is subject to the same general criticism as were the other clauses on which we put our views and on which our views have been negatived by the Committee. Again we believe that this is using extraordinarily wide powers to catch a handful of people. The number is very small but has never been specified by a Minister in either House. At no stage have we been told how many alleged defaulters there are, how many have failed to answer a call-up, how many are in default of the various sections of the Act, how many have failed to attend for a medical examination and so on. All we have is the view expressed by the Minister for Works (Senator Wright) that a very small number is involved. Yet the Government has constructed this extraordinarily elaborate machinery to deal with these few defaulters. Again it is not only parents, it is also employers; it is not only employers, but also people who want to leave the country. Owners, charterers, agents and their employees are subjected to substantial penalties for not in some way preventing the departure of the persons concerned.
Again the provision applies to owners, charterers or their employees who have reason to believe that a person is a person to whom the section applies. The Minister has already said that, if owners, charterers, agents or employees merely suspect that a person is evading service, they are not required to do anything. But if they have reason to believe - which the Minister says is a stronger expression - that they are evading service, there is an obligation on them not to issue an authority. To my mind it is imposing on several new categories of people an obligation which ought not, in all seriousness, be imposed because it is placing upon them an onus to decide whether their state of mind is merely one of suspicion or whether it amounts to a belief that the person is evading service. 1 think these difficulties are real for the ordinary person. 1 said so, and my colleagues in the Opposition said so, in relation to the problem of the employers, and I find it no less difficult in the case of charterers or owners of or agents for ships or aircraft and their employees. For example, a clerk in Trans-Australia Airlines or Qantas Airways Ltd or Ansett-ANA is an employee of an agent or owner or charterer and he is required to form some judgment, under penalty of $400, as to whether he has reason to believe that a person is attempting to evade the Act. If he reaches the stage of suspecting it, what does he do? Does he say: ‘I only suspect; I do not know; I have not been told; so I had better keep quiet and let him through.’? If, later on, he is questioned about it and says: it did cross my mind that he was such a person. In fact, I was pretty suspicious about it but 1 had no proof so I did not ask him any questions and therefore I did not have reason lo believe that he was a person to whom the Act applied and therefore I let him go,’ is he subject to a penalty? lt seems to me that the Government is placing a very real burden on a perfectly innocent person who is suddenly confronted with the possibility that he may be in default under this Act. He may have some indication which excites his suspicion. A man may have something about him which draws the attention of the shipping company clerk or the aircraft company clerk to his situation, but, in the absence of proof, the clerk lets him go and no offence is committed. Where do we draw the line? What are people to do who are confronted with this possibility and yet do not know whether they ought to pursue the subject any further and who later on may be in trouble because they are unable to explain lo n court the difference between suspicion and belief? For those reasons, we appose the clause. The amendment I have proposed seeks that the clause be left out of the Bill.
– It is indicative of the imprudence of the Deputy Leader of the Opposition (Senator Cohen) that he observes, adversely to this amendment, that it is designed to deal wilh a few. Senator Cohen would exhibit such statesmanship to the Senate that he would lead us to believe that wc would wait until the exodus of these defaulters leaving Australia reached army proportions before the legislature would apply the appropriate law. lt is. I think, a tribute to the prescience of the Government that it sees the possibility of a small number growing into army proportions. Therefore a democratic legislature will apply the law before the matter gets out of control.
Secondly, it should be observed that the proposed section carefully defines those people to whom it is to apply. I refer now lo sub-section (1.) of the proposed section. That sub-section makes it clear .hat the section applies only to defaulters - to people who have registered or are liable to register under this Act who are not included in a prescribed class cf persons and who are liable to render service under the Act but have failed to render that service or part of it. The proposed new section makes it quite clear that its only application is to defaulters and that it does not apply to the general body of people who are liable for service under the Act. ft applies only if those persons who are liable for service default in that service.
Thirdly, the provision makes it clear that it applies to the owners and charterers of ships or aircraft, or their employees. If there is reason to believe that the person applying for travel facilities out of Australia is a defaulter, then it simply prohibits the shipowner or the aircraft owner from giving an authority for travel. My heart almost bleeds when 1 hear the painful expressions of Senator Cohen as he calls our attention to the fact that the penalty payable by the shipowner or the aircraft owner is $400. I point out that that is the maximum. I remind the Committee that when Senator Cohen and his ilk were fixing the penalties for shipowners and aircraft owners and charterers of ships and aircraft in their Shipping Act of 1949, the most odious piece of tyranny that ever preceded the advent of this Liberal Government, they set the penalties for banking corporations and shipping corporations at £1,000. Here wc have set a penalty of only $400, yet Senator Cohen painfully pleads to the Committee that an injustice is being imposed upon the charterers and owners of ships and aircraft.
There is no obligation on any of these people to make any inquiries concerning prospective travellers by virtue of this clause. The same proposition holds good with regard to the ambit of its application as applied to proposed section 55. The penalty is attracted only where an authority is given if the charterer or the shipowner or the aircraft owner has reason to believe that the traveller is a defaulter. In those circumstances, and having regard to the safeguard that the provision is not to come into operation until the Minister fixes the date by gazettal in order to ensure proper administrative arrangements to make the section effective, I submit there is just the same lack of cogency in the argument which the Deputy Leader of the Opposition directed against this proposed new section as the Committee vetoed with respect to proposed section 55.
– 1 should like to ask the Minister for Works a question, lt relates to migrants from various parts of Europe who are under the age of 21 years who have come here with their parents, who have lived here long enough to come under the dragnet of national service eligibility, who believe that they would be better off in their own countries which are still free countries than being conscripted into a war against their will, and who wish to return to their own countries believing that they have rights under the Declaration of Human Rights. What is the position of such 20-year old migrants who wish to return to their own country and who, having realised that they are eligible for conscription, want to take measures to return to their own country?
– There is no difficulty about such people. The Department takes the view that these people are free to leave at will.
Senator KEEFFE (Queensland) 19.19]- 1 am not satisfied with the answer which the Minister for Works (Senator Wright) just gave Senator O’Byrne. When speaking during the second reading debate, I quoted the case of an English migrant named Christopher Richard Paul Campbell. Already under some obscure section of the Act the Government has taken away this young lad’s passport to prevent him returning home. I suggest the Minister is making a parody of this debate and is not doing his job. There is general discussion among groups of migrants that the Government will withdraw their passports and not allow them to leave, and that it will use the amendments to this Act for that purpose.
I think we should have a clear and unequivocal statement from the Minister on whether he proposes to use some existing section of the Act to that end. If a section of the Act was used in Campbell’s case, what section was it? What section of the Act gave the Government the right to take Campbell’s passport from him simply because he wanted to return home? If a section of the existing Act is not to be used, will an amended section be used for this purpose? I do not think, Mr Minister, you gave a truthful answer to Senator O’Byrne.
– In the first place, Mr Chairman, I ask you to direct the honourable senator to withdraw the statement that I did not give a truthful answer. It is an offensive reflection on me and I ask for an unqualified withdrawal.
– Order! Senator Keeffe-
– I will withdraw the words as far as they-
– Order! You will withdraw the words ‘did not give a truthful answer.
– I will withdraw the words but I do not believe the Minister’s answer was a clear answer in fact.
– The honourable senator came in at the close of the debate with a reference to the case of Campbell. What chance has he given us to investigate the facts of this case? lt is an insult to the Senate to proffer an individual case at this stage. 1 think it is an irresponsible action in parliamentary debate to bring forward an individual case in such circumstances.
– Mr Chairman, 1 raise a point of order. I ask that the Minister withdraw the word ‘irresponsible’. I raised this matter 2 or 3 days ago and there has been plenty of time to investigate it.
– There is no substance in the point of order.
– 1 advance my argument on the basis that the action was completely irresponsible. The honourable senator knows that had he advised me in anything like decent time beforehand I would have made every effort to get the facts of the case and to give him an answer. Turning to the answer I gave Senator O’Byrne, the position was stated clearly. Alien migrants who wish to leave the country before they are 21 are free to do so. I am not in a position to say whether there is any difference in the case of British migrants who come to Australia on assisted passages and subject to other qualifications, but the plain fact is that this section is not directed to that class of person; it is directed towards preventing the exodus of defaulters who seek to escape national service by leaving’ the country.
That the words proposed to be left out (Senator Cohen’s amendment) be left out.
The Committee divided. (The Chairman- Senator T. C. Drake-Brockman)
Majority . . 4
Question so resolved in the negative.
Clause agreed to.
Clause 26 agreed to.
– When we were dealing with clause 20 Senator Wright told me that the points I wanted to raise should be raised during debate on a subsequent clause. I think this might be the clause the Minister referred to and I seek your indulgence, Mr Chairman, to raise now the points I wanted to raise earlier. Clause 20 to which the Committee has agreed provides for the imposition of a fine of $200 on a person who refuses to answer a call-up notice. According to the Government’s amendments a number of call-up notices can be served which could attract a fine of $200 each. The Minister said that the amount of the fine would depend upon the leniency of the magistrate. But at least there is a monetary penalty for failure to comply with the Act. Clause 20 seeks to insert proposed new section51 which provides that whether or not a fine is imposed on the person concerned, the court shall ask him whether he is willing to enter into a recognisance. Where a person is fined under that section and enters into a recognisance, he then has to serve for 2 years in the Regular Army Supplement and is still liable to pay the fine. But the person who refuses to enter into an undertaking to serve in the Army is sentenced to imprisonment for 2 years and the sentence is subject to such remissions as the State authorities allow.
We have been speaking about the person who will not serve. I am now making a plea on behalf of the person who will serve and who will undertake his obligations under the Act but who is penalised to a greater extent than the person who refuses to serve. The person who refuses to serve receives a prison sentence of 2 years. With the remissions that apply generally in the States, he may serve 16 months in a State prison. He will have no further obligations under the Act and will have no fine to pay. But the person who is prepared to enter into a recognisance has to serve 2 years in the Army and, as the Minister stated in his second reading speech, he faces the possibility of serving for 12 months in Vietnam. Then he has to serve a further 3 years in the Regular Army Reserve. He has an obligation to serve for 5 years. If a state of war is declared when he is undertaking his service, he has to remain in the Army for the period of the war. Although this person serves in the Army he still has to pay the $200 penalty. But the person who refuses to serve does not have to pay any penalty and after 16 months in prison he is relieved of all obligations under the Act.
Clause 27 provides for the method of collecting unpaid fines because it is no use taking a person out of the Army and making him serve a gaol sentence in default of the payment of a fine. Clause 27 provides for the deduction from the pay of national servicemen of whatever fines may be imposed under section 51 and other sections of the Act. In all fairness I ask: Is it right that the person who is prepared to serve should have to pay a fine while the person who is not prepared to serve spends a period of less than 2 years in a civil prison and is not required to pay any fine?
– I have the feeling that Senator Cavanagh has slipped into the temptation of stating something beyond the basis of fact for which the Bill provides. He has referred to clause 20 and has correctly stated that it is provided in that clause that if a person fails to respond to his call-up notice he is liable to a fine of up to $200. lt is a great mistake to think that many magistrates impose the maximum fine that is provided. It is entirely within the jurisdiction of the magistrate whether he imposes a fine of $2, 2c, $200 or nothing at all. When a man who has failed to respond to his call-up notice comes before the court, expresses his contrition and says: ‘I will enter into a recognisance to serve’, it is almost ludicrous to suggest that in those circumstances the magistrate will impose any fine at all. The magistrate will impose the penalty which, according to our law, is adjudged to be just. Senator Cavanagh can have no knowledge of the Army pay book if he does not know that the pay book is the place in which debits for all fines are registered. Anybody who has been in the Army will know of the red ink entries that are put in the pay book as a matter of course, and any soldier would be ashamed to complain about it, because the pay book is the place for the recording of fines. If, in the opinion of a magistrate, a person deserved a fine of $20, $40 or anything up to $200, clause 27 to which Senator Cavanagh addressed himself entitles the Military Board to direct that an amount not exceeding the amount of the fine, or so much of the amount of the fine as remains unpaid, shall be deducted from the soldier’s pay. A private soldier earns approximately $40 per week. I should think that any person who served in the Army would not have very much to complain about if a fine which was justly imposed on him by a magistrate was debited in his pay book.
– I do not think that we should pass this matter over with the mere use of words. As I stated earlier, one’s view of the judiciary in Australia depends on whether you are looking at it from the bar table or the criminal dock. It makes quite a difference. Many Australian citizens do not share Senator Wright’s belief that magistrates are lenient when they are imposing fines. People who have noticed the different penalties that are imposed for similar offences have some doubt regarding the leniency of magistrates. When a conviction is recorded under proposed new section 51, the penalty is as prescribed in sub-section (2.) of that section, which provides:
Where a person is convicted of an offence against the last preceding sub-section -
the person is, subject to paragraph (c) of this sub-section, liable to a fine not exceeding Two hundred dollars.
Paragraph (b) provides that the court shall, whether or not a fine is imposed on the person, ask the person whether he is prepared to enter into a recognisance. What does it matter whether the maximum fine of $200 is imposed or whether a fine of $2 is imposed? Paragraph (c) refers to the person who refuses to enter into a recognisance and serve in the Army. That person may receive a term of imprisonment but he does not have to pay a fine. But the person who enters into a recognisance to serve in the Army has to serve for the specified time and also has to pay a fine. No matter what the method of payment in the Army may be or how the Army may decide to deduct the fine from a national serviceman’s pay each week, is it right and proper that the person who enters into a recognisance should have to serve in the Army and also pay a fine while the person who refuses to enter into a recognisance serves a term of imprisonment but does not pay a fine?
All through the debate we have been told of the man who defaults on his obligations to the country. Is it right that the man who does not default on his obligations to the country should be placed in a less advantageous position to that of the person who refuses to meet his obligations? The only protection in the Act depends on the leniency of the judge. Is this responsible government? There may be only one judge throughout the whole of Australia who is influenced by conditions which are detrimental to the interests of the accused. Surely we have a responsibility to ensure through legislation that difficulties do not arise in relation to the imposition of penalties. Under this clause a fine could be imposed without a request being made to a defendant to enter into a recognisance; or a fine could be imposed without consideration being given to the willingness of a defendant to serve in the future.
Clearly the best course for a defendant to follow is to refuse to enter into a recognisance. In that way he will have no fine to pay and, allowing for remissions for good behaviour, his sentence of 2 years imprisonment will probably be reduced to 16 months imprisonment. Quite possibly he will serve a great deal of his sentence on a prison training farm. The alternative is to enter into a recognisance, pay a fine, serve 2 years in the Army, possibly including 1 year in Vietnam, be placed in the Regular Army Reserve for a further 3 years, be subject to call-up for a period of 5 years service if a slate of emergency is declared, or for the duration of a war. I again plead for consideration of individuals who will be placed at a disadvantage by this provision.
Clause agreed to.
Remainder of Bill - by leave - taken as a whole, and agreed to.
Bill reported with amendments; report adopted.
Motion (by Senator Wright) proposed:
That the Bill be now read a third time
Opposition will vote against the third reading of this Bill in order to emphasise what 1 think has been made abundantly clear during all stages of the debate; that is, that we do not approve of this Bill. We opposed the motion for the second reading and at the Committee stage we fought for amendments, some of which were achieved and some of which were negatived. I do not propose to repeat the arguments that were advanced at various stages of the debate. 1 opened the debate for the Opposition - it seems a long time ago now - by saying that in our opinion the Bill is unconscionable, unjust, unjustifiable and, what is worse, unnecessary. Nothing that has happened during the course of the debate has caused me to alter that opinion. The Opposition will indicate its continuing disapproval of this measure by voting against the third reading.
Senator WRIGHT (Tasmania - Minister say in commenting upon the observations that have fallen from Senator Cohen is that they obviously have emanated from an embittered opposition to particular measures for the defence of this country. They have not been based upon the merits of the Bill and have been in line with the degree of advocacy that secured Senator Cohen first place in the elections last weekend for the Executive of the Victorian Branch of his Party. That body has declared not only for a policy against the defence of Australia in Vietnam and against the support of Australian troops in Vietnam, but also for a policy which would subvert the whole alliance of Australia and the United States of America.
That the Bill be now read athird time.
The Senate divided. (The President - Senator Sir A lister McMullin)
Majority . . . . 4
Question so resolved in the affirmative.
Bill read a third time.
Assent to the following Bills reported: Commonwealth Employees Furlough Bill 1968. Commonwealth Railways Bill 1968. Loans Securities Bill 1968. Slates Grams (Drought Assistance) Bill 1968. Stales Grunts (Drought Reimbursement) Bill 1968.
Motion (by Senator Anderson) agreed to:
That the Senate, al its rising, adjourn till tomorrow al 10.30 a.m.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Anderson) read a first time.
Senator ANDERSON (New South Wales - Minister for Supply [9.51] - I move:
This Bill is a companion measure to the Defence Forces Retirement Benefits Bill and makes provision for those contributors to the Superannuation Fund who become liable to contribute to the Defence Forces Retirement Benefits Fund. The main provivisions of the Bill are concerned with the deferment of contributions to the Superannuation Fund and the supplementation of pensions payable from that Fund in certain specific circumstances. The deferred contributions will become payable to the Fund when the member ceases to be liable to contribute to the DFRB Fund or he ceases to be an employee for the purposes of the Superannuation Act whichever first occurs. Benefits payable to these members from the DFRB Fund will be limited to payment of gratuity and refund of contributions.
Should a superannuation contributor be discharged from the forces on invalidity grounds and because of that invalidity be retired from his Public Service employment, all pension benefits wm b? paid from the Superannuation Fund and he will receive a refund of contributions and a gratuity comparable to the class C gratuity from the DFRB Fund. His deferred contributions to the Superannuation Fund will be met from these DFRB Fund payments. Where the pension entitlement under the Defence Forces Retirement Benefits Act is greater than under the Superannuation Act an appropriate increment will be added to the superannuation pension to bring it up to the DFRB entitlement.
The member who is discharged unfit from the defence force but is able to return to his employment with the Commonwealth will also receive from the DFRB Fund a refund of his contributions together with a gratuity at the class C invalidity rate. His deferred contributions to the Superannuation Fund will be met from this benefit and thereafter his benefits will be from and subject to the provisions of the Superannuation Act. Should he subsequently be retired from the Public Service on invalidity grounds or die, and the Superannuation Board be satisfied that the cause of the invalidity retirement or death is related to the grounds on which he was discharged from the defence force, the superannuation pension will be supplemented if it is less than the DFRB entitlement at the time of discharge from the defence force.
In relation to children’s and widows’ benefits, when a superannuation contributor dies while still a contributor to the DFRB Fund, pension benefits will be payable from the Superannuation Fund with an addition to pension to bring it to the DFRB pension level should the DFRB Fund pension entitlement be higher. There will be a refund of DFRB Fund contributions from which the deferred contributions to the Superannuation Fund will be met, any balance reverting to the beneficiaries.
The additional cost of all these supplemented pensions will be met by the Commonwealth under an existing provision of the Superannuation Act. I commend the Bill to honourable senators.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Anderson) read a first time.
– I move:
That the Bill be now read a second time.
The purpose of this Bill is to obtain parliamentary approval of a further contribution to the International Development Association of a sum not exceeding the equivalent of $US24m. As most honourable senators are probably aware, the International Development Association, or IDA, as it is more commonly called, is an affiliate of the International Bank for Reconstruction and Development. It was set up in 1960 because many less developed countries were not able, or could not afford, to borrow overseas on commercial terms. Many of these poorer countries did not have access to international capital markets because they could not establish a satisfactory credit rating. Most of them were already feeling the burden of external debt and had little or no capacity to service additional loans at normal rates of interest and on normal terms of repayment. IDA was established for the express purpose of providing loans on concessional terms to such countries. IDA loans, or development credits, as they are called, bear no interest and are repayable over 50 years with a 10-year period of grace. A small service charge of three-quarters of 1% per annum is levied to cover IDA’s administrative expenses. I would emphasise that, notwithstanding these soft terms, the projects which IDA finances are subject to the same vigorous analysis and appraisal with respect to both their economic worth and their technical feasibility as the World Bank itself applies in its own lending operations. In point of fact, the two institutions have a common staff.
IDA now has more than 100 member countries which are divided into two broad categories. The more economically advanced countries are classified as Part I members. They are required to pay all of their capital subscriptions in convertible currency. The less developed countries are classified as Part II members and 90% of their capital subscriptions may be paid in local currency which they are under no obligation to convert. In 1960 Part I member countries, including Australia, agreed to subscribe roughly $US150m a year for 5 years to the initial capital stock of IDA. Australia’s share of this total was 2.7%, involving us in annual contributions equivalent to $US4.04m. In 1963 Part I member countries agreed to replenish IDA’s resources over the 3 years 1965-66 to 1967-68 at the rate of roughly $US250m a year. Australia’s share of this total was again 2.7%, involving us in annual contributions equivalent to $US6.6m, which was about two-thirds greater than the rate of our subscription to IDA’s initial capital stock.
All of these resources - which have been supplemented by interest on investments, six additional voluntary contributions by Sweden totalling $US28m, and transfers amounting to $US210m which the World Bank has made to IDA out of its profits - have now been almost fully committed by IDA for lending to less developed countries. As at 3 1st May 1968, IDA had agreed to provide credits totalling $USl,746m to thirty-eight member countries or territories, leaving it with uncommitted resources at that time of only about $US50m. Therefore the need for a second replenishment of IDA resources is urgent if the Association is to make any further loans.
After lengthy negotiations, Part I member countries agreed, subject to parliamentary approval in their respective countries, to a second replenishment of IDA resources at the rate of $US400m a year over the next 3 years. This represents a 60% increase on the rate of contribution under the first replenishment exercise. Replenishment at the rate of $US400m a year was agreed to only after some modifications to the scale of contributions of Part I countries. The United States, France, Australia and South Africa have reduced their percentage shares, while Belgium, Canada, Denmark, the Netherlands and Sweden have increased theirs. In addition, Switzerland, which is not a member of the International Development Association, has agreed to participate in this replenishment exercise by lending the equivalent of $US12m to the Association. This loan by Switzerland will be on the same terms as IDA lends to developing countries. Mr President, with the concurrence of honourable senators I incorporate in Hansard a table which compares the prospective contributions to the International Development Association by Part I member countries and Switzerland over the next 3 years with actual contributions to both
IDA’s initial capital and the first replenishment exercise.
lt will be observed from this table that, Australia’s share in this replenishment has been reduced from 2.7% to 2%. Having regard in particular to the numerous demands being made on Australia to provide aid of all kinds, the Government thought that 2% was a more appropriate share for Australia to undertake. The Government also had in mind that our overall official aid performance is relatively much better than that of every other country except France. 1 might also add that if contributions had been based on relative national incomes of all Part I members, a figure of 1.7% would have emerged for Australia. Despite the reduction in our percentage share, the greatly increased amounts agreed upon for this replenishment will involve an increase of about 20%, from $US6.6m to $US8m, in Australia’s annual contributions to IDA.
Agreement on this second replenishment exercise was also subject to some changes in respect of financing procedures. The Association’s present policy of arranging procurement of goods and services on the basis of international competitive bidding will remain. But, in an effort to help the United States in its present balance of payments difficulties, it was agreed that during the period to 30th June 1971 and for as long thereafter as might be necessary and IDA’s resources would allow, IDA would call upon the United States contribution only to the extent required to finance goods procured within that country. This was intended to mitigate the adverse effects of the Association’s operations upon the United States balance of payments position. Such amounts of the United States contributions as were deferred would, of course, remain subject to call by IDA of it should exhaust all its other resources.
Because of the uncertainties which surround our own balance of payments position, our representative made it clear that any agreement on Australia’s part to contribute the equivalent of $US24m to this replenishment exercise would carry with it the explicit understanding that, should we run into serious balance of payments difficulties in the future, the International Development Association would sympathetically explore ways of achieving a mutually satisfactory variation in the calls it made on Australia.
This agreement to replenish the Association’s resources at a considerably higher level over the next 3 years is subject to at least twelve countries with pledges totalling not less than $US950m notifying the IDA management that they have taken all the legislative steps necessary to authorise payment of their respective contributions. Because of the size of the contribution of the United States the agreement cannot enter into effect unless and until it is ratified by that country, lt is hoped that this will be achieved by 30th June next so as to avoid any hiatus in the Association’s lending operations, but inquiries which have been made recently in various overseas capitals suggest that it. may not be possible for a sufficient number of countries to meet this deadline. In that event, however, it seems likely that this period will be extended.
It is in Australia’s interest to do everything it can to see that IDA resources are replenished at the earliest possible date. The International Development Association is by far the largest soft-lending agency in the world today, lt has unrivalled expertise in matters affecting the economic development of poorer countries. It enjoys a very high reputation as an efficient, businesslike institution which concentrates upon financing projects which are both economically viable and technically sound. Moreover, nearly three-quarters of all IDA credits to date have gone to developing countries in Asia. Last year, India alone received credits worth $US200m from IDA and Indonesia should also receive substantial assistance in future when this replenishment exercise is completed.
The World Bank has accepted that Papua and New Guinea is an IDA type country eligible to borrow on soft terms from the Association. In fact, proposals to borrow both from IDA and the World Bank on the Territory’s behalf are under consideraton at. the present time. 1 need hardly add that the less developed countries themselves attach great importance to the early replenishment of IDA’s resources. This Bill provides us with an opportunity to demonstrate Australia’s support for IDA, an effective and efficient organisation, and our willingness to help the less-developed countries achieve faster rates of growth and improved standards of living. I commend the Bill to honourable senators.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Anderson) road a first time.
– J move:
That the Bill be now read a second time.
This Bill will continue for another 5 years - but with a number of modifications - the pay-roll tax rebate scheme which was introduced in 1961 as an incentive for producers of Australian goods to increase exports. The operation of the present scheme is due to terminate at the end of the current financial year. As honourable senators know, the pay-roll tax rebate scheme is one of two incentives provided for exporters through our taxation laws. It provides a financial benefit to exporters who increase their exports over those made in a specified base period. Broadly, the benefit provided is in the form of a rebate of pay-roll tax paid by persons who arc the producers of goods which are exported. The other incentive is in the form of a special income tax allowance for expenditure incurred in promoting the sale of Australian goods overseas.
In February of this year, the Prime Minister (Mr Gorton) announced the Government’s decision to continue the two incentive schemes subject to certain changes. The general nature of the changes proposed was later outlined in some detail in a statement made by the Acting Minister for Trade and Industry (Mr Sinclair). It has not yet been practicable for the legislation implementing the decision on the income tax incentive to be prepared. However, the Government is proceeding with the drafting of that legislation for introduction in the Budget session, with effect as from 1st July 1968. During the course of its review of the pay-roll tax rebate scheme, the Government received and carefully considered many suggestions from individual exporters and export organisations. In particular, detailed submissions made by the Export Development Council and the Australian Manufacturers’ Export Council have been of great assistance to the Government in its deliberations. The Government is satisfied that the pay-Toll tax rebate scheme will, in consequence of the changes proposed, offer a better and more effective incentive to encourage the continued growth of Australian exports. As honourable senators will observe, the Bill is not a short one. To a substantial extent, however, it re-enacts the substance of provisions contained in the present law. In the drafting of the legislation giving effect to the changes proposed, it was found expedient to repeal all of the provisions relating to the payroll tax rebate scheme and to reproduce them with the necessary alterations.
One important change proposed by the Bill is the introduction of a simplified formula for the calculation of an exporter’s rebate entitlement. In the past, the rebate has been determined under a rather complicated formula which took into account the proportion that an increase in export sales bears to the total receipts of a business. The new formula will provide that an entitlement to a rebate of pay-roll lax is simply 10.5% of the increase in the value of exports for a financial year. The increase in exports will be ascertained by deducting from the current year’s exports the average annual exports in the relevant base period.
Another important change is proposed in relation to the base period by reference to which an increase in export sales for a financial year is calculated. The base period under the present scheme is fixed as the 2 financial years 1958-59 and 1959-60. That base period is to be replaced by a 3-year period which will roll forward each year but remain 5 years behind the year of export. For example, in 1968-69, the first year of operation of the new scheme, the base period will be the 3 years 1960-61 to 1962-63. In the next year, the base period will be the 3 years 1961-62 to 1963-64, and so on. The Bill proposes special provisions to meet the position of taxpayers who have commenced export activities since the end of the 1960-61 financial year. The objective of these provisions is to ensure, as far as it reasonably practicable, that new exporters are treated equitably as compared with established exporters.
A criticism that has been levelled at the present system is that many exporters achieve export results that would entitle them to greater benefits if the rebate were not limited to the amount of the pay-roll tax that they pay for the particular year. The new scheme will contain measures which are designed to meet this criticism. Under one measure, an exporter will be permitted to carry forward, for a period of 3 years, an amount of an excess rebate entitlement for a financial year up to 50% of his pay-roll tax liability in that year. In addition, the export certificate system will be improved with a view to making it more attractive to exporters and their suppliers of components or materials.
At present, a producer for export can issue export certificates to firms which have supplied him with materials or components of a kind that have been included in goods that he has exported. The practical effect of an issue of these certificates is to transfer to the supplying firms some, or all, of the producer’s increases in exports for the purposes of the pay-roll tax rebate. However, before the actual rebate value of the certificates to a supplier can be ascertained, it is necessary for the amounts stated in the certificates to be taken into account by the supplier for the purposes of the existing and rather involved formula as though those amounts represented his own increase in exports.
A much simpler procedure is proposed under the new scheme. An exporter will be able to issue to his suppliers certificates which show on their face the amount of the rebate the supplier can obtain against the pay-roll tax he has paid. This will clearly facilitate an assessment by suppliers of the value to them of export certificates they receive and simplify their claims for a rebate.
The new scheme will also permit the issue of export certificates to export merchants involved in exporting goods they have acquired from producers of the goods. This represents an extension of the present export certificate system. The rebate to be allowed to a merchant in respect of certificates he has received will, however, be limited to an amount that bears to his payroll tax liability for a year the same proportion as his export sales in the year bear to his total sales in the year. The purpose of this limitation is to ensure that undue benefits are not obtained through the issue of certificates to export merchants. 1 turn now to the types of export activities that will be eligible for the rebate under the new scheme. Some additions are proposed to the scope of activity covered by the existing scheme. On the other hand, certain exports which are eligible under the present scheme will not be eligible under the new. First, I refer to goods which are exported in an unassembled or partly assembled condition. Under the present scheme, manufacturers of such goods, other than of motor vehicles, can claim a payroll tax rebate only in respect of the value of components included in the export pack which, broadly speaking, they themselves have processed. Under the new scheme, however, manufacturers will be able to claim as their exports the full value of the unassembled or partly assembled goods, provided these goods can, on assembly, be converted to usable articles and the manufacturers are engaged in producing such articles in Australia. There are the added qualifications that the manufacturers must, speaking broadly, use Australian goods as far as practicable in their manufacturing operations and establish that the export pack contains a minimum of 50% Australian content.
The export of certain know-how and professional services will also be within the scope of the new scheme. As to know-how, it will be required that the knowledge or information exported have a meaningful Australian content. One objective of this is to encourage Australian research in this area. Container system units specially designed for transport by ship or aircraft, and for convenience of transfer of goods from one form of transport to another without unloading or repacking, are specifically brought within the ambit of eligible exports by the Bill.
The broad approach the Government has adopted in its review of the pay-roll tax rebate scheme is that the incentive should be concentrated on exports of manufactures and primary products, where the need for incentives is greatest. Although they have been eligible in the past, exports of petroleum products, minerals, mineral concentrates, alumina and iron pellets or other agglomerates of iron will not participate in the new scheme. The Government has taken the view that there is not the same need for such an incentive in this area. The inclusion of these products would have meant either a substantially smaller scale of rebates than is now proposed for the exports to be covered by the scheme or a very large addition to the prospective cost of the scheme. I mention, however, that minerals of a kind used as fertilisers will not be excluded, nor will salt or products obtained from the treatment of salt. No change is being made by the Bill in the availability of the rebate to gold producers.
Special arrangements have been made under the new scheme in recognition that the exports of some firms may have been adversely affected by the recent devaluation of foreign currencies, lt is proposed by the Bill that exporters, who are able to demonstrate that the overall value of increased exports achieved in 1968-69 has been materially affected in an adverse way by devaluation, will be permitted to substitute, for the purposes of their 1968-69 rebate, the increase in exports over the present base period achieved in either 1967-68 or 1966-67. These cases will be examined individually by the Department of Trade and Industry and, where the facts warrant it, a certicate will be issued entitling the exporter to select, for his rebate entitlement in 1968-69, an export increase achieved under the old scheme in respect of 1967-68 or 1966-67 or the actual increase under the new scheme in 1 968-69.
In some cases affected by devaluation, the exports of either or both of the substitute years may have been abnormally high as a result of unusual trading conditions. In these cases, there will be authority for the value of the exports in the year selected by the exporter to be reduced to a more normal level. The exporter will have a right to have any such reduction reviewed by a Taxation Board of Review and may elect, in the light of the Board’s decision, to adopt the exports of such of the 3 years as is most advantageous to him for rebate purposes. Cases of this kind are expected to be few in number.
A further point, which I am sure honourable senators will appreciate, is that to form a judgment of the operation and effect of a scheme such as this from time to time, it is necessary for Ministers and departments concerned with policy aspects to have all reasonable access to information as to how the scheme is working out in practice. For this reason the Bill will empower the Commissioner of Taxation to communicate information of this kind to Ministers, and to the Secretary of the Treasury and the Secretary of the Department of Trade and Industry, if the Treasurer is satisfied that the information is necessary for the purpose I have mentioned. Officials receiving such information will be under the same obligations to maintain secrecy as apply to taxation officers.
A memorandum explaining technical aspects of the Bill is to be made available to honourable senators and I do not think it is necessary for me to speak to the Bill at any greater length at this stage. I commend the Bill to the Senate.
Debate (on motion by Senator Poke) adjourned.
Debate resumed from 30 May (vide page 1 350), on motion by Senator Anderson:
That the Bill be now read a second time.
– I move:
This minor Bill seeks the approval of Parliament for the Commonwealth to borrow 1 6. 8m Deutsche marks - the equivalent of $3.75m - from the Deutsche Bank in Frankfurt to permit Trans-Australia Airlines to buy four Fokker Friendship Quickchange aircraft. The aircraft are called Quickchange because when they are not needed for passenger traffic they san be converted easily and quickly to carry cargo. The Minister for Supply (Senator Anderson) stated that these aircraft will replace obsolete DC3 and DC4 freighters. I understand from the Minister’s second reading speech that TAA proposes to sell the DC3s and DC4s. lt would be interesting to know what TAA expects to obtain from the sale of those aircraft and their value on TAA’s books at present. I hope that the Minister will obtain and supply that interesting piece of information. I would like to know also on what routes these new Fokkers will be used for the carrying of passengers. I suppose that most of us at some time or another have travelled on Friendships and, wilh a full complement of passengers packed in, 1 doubt if there is a more uncomfortable plane operating on the country’s internal air routes. It seems to me that both airlines, by using these planes, pay little attention to he comfort of the travelling public.
The Commonwealth in this instance, as in past years, is only acting as a guarantor. TAA will repay principal and interest over a period of 4 to 5 years. I cannot understand why this Government should handle this matter in such a way as to suggest that the nation cannot afford to pay the small sum involved. At present our overseas trading balance stands at about $I,200m in our favour. I do not think Australia’s prestige is upheld when we seek to borrow a mere $3.75m when we enter into a kind of hire purchase transaction in order to purchase these aircraft. I deplore the Government’s action. I know that over the years TAA and Qantas have raised loans overseas for the purchase of aircraft. I doubt whether the Minister for Supply (Senator Anderson), who introduced this Bill into the Senate, can cite an instance in which we have sought to borrow overseas such a small sum as $3. 75m. It is interesting to note that the loan will bear interest at a rate between 6.65% and 7.04%. I venture to suggest that we are earning less on some of our overseas balances than we are paying for this loan. Surely it is time, in the interests of Australia’s prestige, that we ceased going round the world’s banks seeking to borrow sums as small as $3.75m when we know that we can raise this money at home. If it were necessary to raise this finance overseas I would offer no objection, but having regard to. the healthy position of our overseas balances I can see no reason why we should put ourselves into pawn for 4 or 5 years to the German bank in
Frankfurt in order to obtain these new aircraft for TAA. The sum involved is small and the Government’s action is petty. The raising of this loan overseas can only harm Australia’s prestige.
– The honourable senator would concede, 1 am sure, that many businesses today make a practice of borrowing, notwithstanding that they may be quite financial, because they think borrowing is the wisest way of financing their business.
– I do not doubt that, but I do not think any business would borrow money overseas at a rate of interest higher than it is earning on money invested in this country. I have yet to meet the benevolent business man who would do that. The interest payable on this loan will range from 6.65% to 7.04%. If our overseas balances were in a precarious position one might say that it would be wise to pay the higher rale of interest on this loan. But, knowing our exports position, knowing that we are gaining from mineral production in Western Australia and knowing that within a year or two we will be saving many millions of dollars because we will be using our own oil, surely we do not have to go around the world more or less as paupers for the sake of S3. 75m. The Senate has an obligation to uphold the prestige of the nation. The Government, by acting as guarantor in this matter, is just showing its lack of business acumen to the world. These rates of interest are much higher than the Commonwealth pays on loans that it raises in this country and more than we receive on our overseas balances when we make short term overseas loans from them. I regret that the Government has seen fit to do as it has done. I trust that the Senate will say that, in the interests of the prestige of our nation, for 3 or 4 years until TAA is able to repay the money the Government should pay cash and let TAA meet its obligations to the Government. I commend the amendment to the Senate.
The ACTING DEPUTY PRESIDENT (Senator Bull) - ls the amendment seconded?
– I second the amendment.
– The Government is not prepared to accept the amendment moved by Senator Kennelly, who is leading for the Opposition in the debate on this Bill. The proposition contained in it is to give passage to the Bill at the second reading stage but to express the opinion that the financing of the purchase of aircraft by the Australian National Airlines Commission should be met from revenue and not from a loan raised overseas. As indicated in the second reading speech, when overseas aircraft have been purchased it has been the practice to meet the financial commitment from overseas loans. Whilst, as Senator Kennelly very properly pointed out, this purchase does not involve a great amount of money - only $3.75m - the overall principle in financing purchases of aircraft overseas for TransAustralia Airlines has always been to meet the commitment from overseas loans. In fact the commitment in respect of equipment costing $50m for the extension of the operations of TAA has been met from overseas loans. Consequently, although Senator Kennelly has moved this amendment in relation to a small amount, we should really look at the broad principle that has always been applied. As the honourable senator suggests by his reference to our overseas balances, to the extent to which we had to find funds in Australia for the purchase of overseas capital items it would have implications for our overseas balances.
Let me come very quickly to the point that we should meet this amount, modest as it is, from revenue. 1 think that Senator Webster, by way of interjection, was getting to the heart of it when he pointed out that it is not a bad business to finance the purchase of aircraft by loans rather than by revenue. If we acquire something which is capable of earning, we can make that acquisition earn. This is normal business practice and provided the acquisition continues to earn, we can afford to make capital and interest repayments. This is a simple practice and it is hardly necessary for me to give an illustration of this fundamental principle of business. It is as old as time. Even the most financial company in this country would probably consider it good business to borrow money and use that loan in order to earn an amount, in excess of its repayments. I think this is axiomatic. Senator Kennelly asked me two questions. Firstly, he asked me the probable values of the aircraft that were to become redundant. Secondly he asked me whether TAA was likely to use the new aircraft.
– I asked what was the price on the balance sheet - in other words, how much has been written off on these planes.
– I have tried to obtain this information from the officers who have been made available to me tonight at such short notice. 1 do not have that information at the moment but I will let the honourable senator have it before the end of tonight’s proceedings. The Government does not support the amendment moved by the Opposition. We believe that this Bill, which enables the replacement of aircraft, is a very desirable one. Also, we believe that the financial arrangements of the Bill are only following normal procedures that have operated in the past. It is true that the amount involved is only a small one and would have a minimal effect on overseas balances. Nevertheless, the general practice of Qantas Airways Ltd and TAA is to meet the cost of these aircraft from overseas loans when they can be borrowed at reasonable rates of interest.
That the words proposed to be added (Senator Kennedy’s amendment) be added.
The Senate divided. (The President - Senator Sir Alister McMullin)
Majority . . . . 3
Question so resolved in the negative.
Original question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Debate resumed from 5 June (vide page 1416), on motion by Senator Dame Annabelle Rankin:
That the Bill be now read a second time.
– On behalf of the Opposition I move:
The Commonwealth should accept responsibility for providing uniform benefits. The amendment contains two proposals. Firstly, it seeks to place responsibility for payment fairly and squarely on the shoulders of the Commonwealth Government. As I have said previously in the Senate, this Parliament has a constitutional responsibility in relation to social service benefits. Secondly, the amendment seeks to establish uniform benefits. I shall develop that point at a later stage. The Bill does nothing to assist deserted wives and mothers. It merely pinpoints the Government’s niggardly approach to social service benefits. A comparison of the amounts payable in the various States shows a considerable disparity from State to State. This is one reason for proposing the amendment. In Tasmania the rate of benefit payable to a deserted wife or a woman whose husband is in gaol is $16.50 a week; in South Australia it is $17; in New South Wales, $16.25; in Queensland, $4.85; in Western Australia, $16.25; and in Victoria, nil.
As stated in the second reading speech, in Victoria a deserted wife or the wife of a prisoner receives the unemployment benefit and the State pays $4 in respect of each child under the age of 16 years. A comparison of the highest rate, $17 in South Australia, and the lowest rate, $4.85 in Queensland, highlights the disparity in the social service benefits paid under State legislation. The Minister stated that the Bill will assist the States to provide benefits. It is nothing more or less than a subsidy. There is nothing in the Bill or in the second reading speech to provide an undertaking or guarantee that the States will introduce a uniform rate of benefit or that Victoria will make payments in respect of wives or de facto wives who are deserted. I might say that I do not place any of the responsibility in this matter on the Minister who introduced the Bil] in this chamber. Rather does it rest upon the Minister for Social Services (Mr Wentworth) in another place and upon the Government which has been so unsympathetic and niggardly in its approach to social service benefits. The Minister for Housing (Senator Dame Annabelle Rankin) pointed out that discussions took place with the States before the Bill came before the Parliament. She said:
It is commendable that relief is to be given to additional classes of mothers, especially as such relief was not envisaged when the discussions took place. The Minister said also that further classes of women may be provided for by regulation. This is rather a vague proposal. There is nothing tangible about it and we all know that a regulation can be disallowed. I suggest that the Government have another look at this aspect and provide something more specific.
I remind the Minister that the inclusion of further classes of women will depend largely on the sympathies of the government which is in office at a particular time and that if the Bill is passed in its present form it will depend on the whims of a particular State government. In the Australian States we have Labor governments and Liberal Party-Country Party governments so it is only natural to assume that there will still remain a considerable disparity in the rates payable in the various States.
The Minister said that the legislation would apply to deserted de facto wives with children and to other unmarried mothers. The Opposition has long supported the idea of assistance to such mothers. In fact, I would say that it has been a long standing weakness of our social services legislation that such provision has not been made. It is good to note that the Government has at long last recognised this human and social problem, because it is a great problem in Australia. In the past unmarried mothers have suffered a severe handicap in trying to provide for their children and for their children’s upbringing. If an unmarried mother has been unable to maintain her child the alternatives have been that the child’s grandparents rear the child or the mother has the child adopted out. I should like to read a letter from the Australian Womens Charter on this grave problem. The letter was written in July of last year and although it is almost 12 months old it is pertinent to our discussions. It reads:
I would like to draw your attention to some of the difficulties experienced by unwed mothers who wish to rear their baby.
Judging from the people with whom our organisation has had contact there seems to be two outstanding problems, the financial and the personal.
To take the financial position: The Federal Government will provide approximately $18 a fortnight from 6 weeks prior to the birth until 6 weeks after the birth, then the State takes over and pays a similar amount with some milk and food allowance. From what 1 have been able to find out, never quite enough food to be sufficient. Incidental handouts from the State Welfare ore important but not enough to assure security for a girl without home and parents to make up the difference.
We have been informed, by those in a position to know, that the girl who surrenders her child or loses it in some other way is more likely to become pregnant as compared with the girl who accepts her responsibility and grows with the child.
Since (he incidence of the unwed mother and ber child is assuming an increasing importance in the community, members of the Australian Woman’s Charter think that there should be a fresh approach to our attitudes.
We claim that every effort should be made to make these girls secure, financially, and by attention from trained social workers helped to develop into mothers who can give their child the attention that it needs.
The response to our letter on this question to the Minister is sympathetic and we hope we can enlist your support for our desire to secure a better life for some at least of our unwed mothers.
The letter is signed by Lucie Barnes, Honorary Secretary of the Australian Woman’s Charter. It emphasises and fortifies the argument that we put to the Government on this issue. It also favours the humane approach, which we believe these mothers deserve.
The Minister spoke about the desertion of a wife by a husband and referred to the difficulties of establishing desertion during the first 6 months. The main point that comes out of this is the need to establish desertion. The Government says that the husband may decide to return and that it should not impede any reconciliation. This objective is commendable. All members of the Parliament have had these matters brought to their attention in their electorates and I think we would all agree that the percentage of reconciliations of marriages in which the husband has deserted the wife is quite small. Certainly a few husbands do return to their wives and live a pretty normal life, but nevertheless the percentage of husbands who do this is rather small. As I mentioned earlier, the States provide assistance for the deserted wife for the first 6 months. That is all the Commonwealth Government intends to do. It will provide assistance for the first 6 months through the State governments. The Bill as it now stands does not place one cent extra in the hands of the mothers to clothe, feed or shelter their children. The amendment will ensure that additional assistance is provided for the mothers. As I mentioned earlier, a disparity between the amounts that are paid by the various governments exists.
I ask the Minister to give me some information on another point. I am of the opinion that the claimant States, of which Tasmania is one, will be at a disadvantage when the normal grants are made because, if a claimant State spends more on social services than does a standard State, the claimant State is penalised to the extent to which it has spent more on social services than the standard States have spent. I should like the Minister to correct me if I am wrong or to confirm my opinion if I am right. In addition to amounts that will be made available under this Bill, the Tasmanian Government assists pensioners, and others in receipt of social service payments, with their hydro-electricity charges, bus fares and heating charges.
The ACTING DEPUTY PRESIDENT (Senator Dame Ivy Wedgwood) - 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.
– If that situation does prevail then I would suggest that it places a greater penalty on those States and that the matter should be looked at in that context. The Minister said that initially the States had put forward the proposition that the Commonwealth should bear the whole of the cost incurred under this legislation. That is exactly what this amendment proposes. I cannot see why it should be necessary to bring down a Bill such as this. I submit that the Social Services Act could be amended to provide for these particular people. The Minister also said that the administrative machinery remains in the hands of the States. Is it necessary that the administrative machinery should remain in the hands of the States? I think I am correct when I say that the Department of Social Services has administrative offices in each of the capital cities. It probably has them also in some of the other large cities around the. Commonwealth. Therefore, all that would be needed for the Commonwealth to assume control would be the setting up of another section within the administrative offices already operating in the various States.
The Minister stated in her second reading speech that it was with satisfaction that she was able to inform the Senate that the Bill before us embodied principles agreed to by all the States with the exception of Victoria. I think I have covered that point. I have spoken about unemployment. The only further point I would make relates to the Minister’s statement that in Victoria a maximum of $4 per week is paid for each child, subject to certain ceilings. 1 should like to know from the Minister what assurance the other States have as to the operation of the scheme if the Premier of Victoria decides not to take part in the arrangement. As I see the position, if he should do that this Government will continue to pay unemployment benefits to the mothers referred to in (he Bill and it will pay $2 a week to each eligible child in Victoria. These points will have to be clarified by the Minister when she replies.
The Minister also stated that in 1947 a decision was taken by the Commonwealth Government of the day that deserted wives and the wives of prisoners in Victoria should be paid special benefit at unemployment benefit rates during the 6 months waiting period required before widows’ pensions could be paid under the Social Services Act because there was no provision whatsoever in the Victorian legislation for deserted wives, deserted de facto wives, and so on. This system has now been in operation for about 21 years. The present Commonwealth Government has been in office for 19 or those 21 years but it has not seen fit until now to take any action. Although the present step is most belated, I do give the Government credit for at last getting round to trying to do something after 19 years. Even so, the step proposed to be taken goes only part of the way towards meeting the problem. The Minister went on:
But the Commonwealth expects-
I emphasise the words ‘the Commonwealth expects’. There is nothing definite - that the States will in general raise benefit payments approximately to the level of those payable to a class A widow under Commonwealth legislation.
I cannot help but point out again that the proposed amendment is a positive approach to this matter. The Government only expects that something will be done whereas the amendment makes it mandatory that it should be done. The Minister, later in the second reading speech, gave an example of what would happen in relation to a deserted wife. That portion of the speech has created confusion. To support that statement I shall read a letter dated 6th May 1968 which was addressed to me by the Chief Secretary of Tasmania. It is as follows:
I enclose for your information a copy of a memorandum I have received from the Director of Social Welfare concerning the proposed Commonwealth assistance for deserted wives. You may desire to raise this matter with the Federal Minister.
That letter was signed by Brian Miller, Chief Secretary. Both the Chief Secretary and the Director of Social Welfare, whose letter I shall read in a moment, have expressed concern about this matter. Incidentally, I remind the Minister that the Chief Secretary is the Minister in charge of social welfare in Tasmania. The Director’s letter dated 3rd May 1968 is in these terms:
The Hon. the Chief Secretary. Hobart.
Rc: Assistance to Deserted Wives. lt is noted in today’s “Mercury’ that die Commonwealth Minister, when introducing the Bill by which the Commonwealth would meet half the cost of assistance to deserted wives etc, was reported to have said that the proposed Commonwealth assistance would mean that a deserted wife with one child and paying rent would receive $18.50 per week, or if she had two children $22 a week. His statement indicated that the determination of rates of assistance would remain the responsibility of the States. The present rates in this State in similar circumstances would be $16.50 for one child, or $18.75 for two children.
From the information supplied to the conference held to consider this question last year, it would appear that the rates quoted by the Commonwealth are higher than in any State at present. At the time the rates ranged from $4.85 in Queensland to $17 in South Australia for a deserted wife with one child. While it is possible that the Tasmanian and other State governments may wish to revise their rates in the light of the Commonwealth assistance, it would seem that this statement by the Commonwealth Minister is anticipating such decisions. It could be embarrassing to this Department if deserted wives receiving assistance from us expect to receive payment at the rates apparently promised by Mr Wentworth.
I think he was intending to imply that the Commonwealth would meet half the cost up to a maximum equivalent to the rates paid for a widow. This would in fact be $18.50 for a widow with one child. However the statement certainly does not make this clear.
The letter is signed by G. C. Smith, Director, lt supports my statement that the portion of the Minister’s speech to which I have referred has. caused some confusion.
The Minister went on to say:
The arrangement made with the States will require close co-operation and co-ordination between my Department and the relevant State departments. . . .
Here again there is nothing definite about this particular aspect of the Bill. I think that the Minister, in her reply, should give us further information on this point. I think that the concluding paragraph of the Minister’s speech highlights the uncertainty of the Bill. It states: , In making additional funds available to the
States tor this purpose, the Government hopes-
And again I underline the word ‘hopes’ - that the level of the benefits which it is paying to these mothers will be raised by the State governments concerned.
As I said previously, the Bill does nothing to put an extra lc into the hands of deserted wives, deserted de facto wives, unmarried mothers or wives of husbands who are in gaol. The Minister in her second reading speech used words such as ‘hopes’, aims’, ‘intentions’, ‘expectations’, ‘anticipations’, ‘co-operation’ and ‘co-ordination’. Those words are descriptive of the Bill. It does nothing specific. Not one of those words will assist any mother to feed, clothe or provide shelter for her children. I urge the Government and honourable senators generally to support the amendment because it is positive. It places the responsibility where we on this side of the chamber feel that it rightly rests. Most importantly, it provides for the payment of uniform benefits. I commend the amendment to the Senate.
Senator Dame DOROTHY TANGNEY (Western Australia) [11.13] - In supporting the amendment I wish to express my regret that this Bill has been introduced so late in the evening and that it has to be discussed in a hurried way that does not enable us to do it full justice. The plight of deserted wives and their children has been one of the matters which I have. worked to better for many years. In 1943 and again in 1947 1 advocated the payment of pensions to deserted wives, a better deal for widows with dependent children, and so on. Now I have to leave the task unfinished because this Bill docs not do as much as we think should be done by the Department of Social Services.
But 1 congratulate the Minister for Social Services (Mr Wentworth) on. the Bill. He has had the foresight to bring it down before the Budget session, lt will not give more to deserted wives, but it will do something to relieve the anomalies which at present exist between the States with regard to payments by the States to deserted wives and others during the first 6 months of desertion before they become eligible to receive benefits under the Social Services Act. The first 6 months of desertion is a very crucial period. I think it is the most cruel period for deserted wives. It is a time when a deserted wife has to make readjustments to society. She is an injured party. She must try to ensure that her children are not permanently injured by the condition in which she finds herself. She must make a complete reassessment of her mode of living. This is the very time when she needs assistance in material affairs so that she may concentrate better on the other problems which confront her at that time.
In Western Australia we are very fortunate to have a Child Welfare Department which is staffed by most sympathetic officers. As this is the last time that I will be able to speak on this subject I wish to pay a tribute to all the officers of that. Department. They are most sympathetic. 1 have never yet approached them about a genuine case without having them assist me immediately, right on the spot. There has been no question of waiting. They have got down to tin tacks straight away, in some cases even within a day or so of a husband’s flitting. They have helped considerably.
The task of a wife to prove that she has been deserted is difficult. Many wives who have been deserted wait in hope that their husbands will return. They defer taking action in the courts until the last possible moment. In the meantime their capital is expended and they can find themselves in very difficult circumstances. I would like to see the qualifying period of 6 months shortened in some way, or alternatively, to see the Commonwealth undertake full responsibility to ensure that- payments are made to deserted wives soon after they are deserted. That would do a great deal to alleviate distress in a very deserving section of the community.
I do not think, that is the end of the story. I would like to see a committee sat up, perhaps comprised of women senators and the woman member of another place, to deal with the problems of women in the sphere of social services. I have not made that suggestion because of a belief that we are here as men or as women, but the fact is that women can get to the heart of these matters much more quickly. Many women come to us with their troubles, probably because they believe they can talk to us more freely than to men who are members of this Parliament. I would like to add that I appreciate that the majority of mab members of this Parliament give the same sympathetic consideration to social service problems as female members do. When we are approached by women with these problems we can make a cup of tea to drink while they are discussed. It is amazing how far one can act towards helping a woman with her problems even if only by being a sympathetic person with whom those problems can be discussed.
I think the Commonwealth Government also has a responsibility to trace the missing husbands of deserted wives. In August 1965 I asked the Minister representing the Minister for Social Services how many deserted wives were currently receiving social service pensions, and how many so-called widows’ pensions were being paid to deserted wives. I discovered that a high percentage of the number of women receiving payments as widows were really deserted wives. I do not think for one moment that wc should ever revert to the days when no pensions were payable to deserted wives, but I think the day is coming when the Commonwealth will have to take action to trace husbands who make off and do not live up to their responsibilities. At 30th June 1965, there were 12,028 women receiving widows’ pensions as deserted wives. In addition, an unknown’ number of women who had been deserted by their husbands were receiving widows’ pensions as widows or divorcees, or were receiving age or invalid pensions. At the same date 4,800 wives of invalid pensioners and 3,505 wives of permanently incapacitated age pensioners were receiving the wife’s allowance. When we add all those figures together, and when we realise that another 3 years have passed, we can see that there are great numbers of women directly dependent on the government system of social services for their very existence.
I am pleased that the Government has taken this action. It will not cost very much. It will cost only about Sim in a full year, which is not much when we are budgeting in . terms of thousands of millions. We must realise also however that it will serve merely to remove a few anomalies in the present situation without improving .the overall situation itself. I think the women of this community do an excellent job. I do not know how deserted wives and widows with children, whether they are civilian widows or war widows, can possibly manage on their pension payments. They do a splendid job and I would like to commend a complete review of the position of all women pensioners to the new Minister while he is still enthusiastic arid is still a new broom. There is no knowing what we- may achieve if we approach him in a concerted fashion wilh a request that a committee be formed to deal with all the details of legislation affecting women and children. After all, the children of the community are amongst our best assets. We spend - and rightly so - many thousands of dollars in attracting immigrants to our shores. At the same time we have within the confines of Australia many young children being brought up on a standard of living lower than that to which I think they have a right.
I have taught in schools attended by children who were fatherless and whose mothers had to go out and do all kinds of jobs, mainly the menial kind if they wanted to be at home when their children came home from school. I know how such families were affected when widows’ pensions were first introduced. I do not want to make this a political matter but I cannot help saying that it was a Labor government which introduced widows’ pensions during the dark days of World War II. It was not a very elaborate scheme but it did establish the principle of widows’ pensions, and it is a fact that there has not been much improvement in those pensions since that time, taking into account the decline in the value of money. 1 hope the time will come when this Government - and if it does come I will be very happy to read about it in the newspapers - will give the widows, deserted wives and unmarried mothers of Australia, and, more importantly, their children who will be the citizens of tomorrow, the very best that this community can afford to give them, so that they may become decent, reliable citizens of Australia.
[1 1.24] - I rise to reply to the comments made by Senator Poke and Senator Dame Dorothy Tangney. I thank them for their support of the Bill hut 1 must tell them that the Government: cannot accept the amendment that they have put before the Senate. This may have been the last speech in this Senate by Dame Dorothy Tangney on a Bill, and I lake the opportunity to say that through the years 1 have known her she has constantly clone her utmost for the section of the community whose cause she has championed tonight.’ lt is rather fitting that she should have participated in this debate.
The purpose of this Bill is to assist wives deserted by their husbands and wives whose husbands have been imprisoned, during the first 6 months of desertion or imprisonment, because during this period they are not eligible for widows’ pensions under the Social Services Act. I know we have all been disturbed by this situation. We have all appreciated and been aware of the problems which have faced women who have been descried, and so wc welcome this legislation and it is with very real concern that we consider it. We now see its benefits. The Minister for Social Services (Mr Wentworth) said in his second reading speech in another . place that regulations would be made so that the benefits of the Bill would apply also to deserted de facto wives, and de facto wives of prisoners, and other unmarried mothers. This is another area in which there has been a very real need of further assistance. When this legislation comes into operation the persons whom I have mentioned will be given this added assistance. Adopting the words used by the Minister, “after persons to whom this Act applies’ have made applications for assistance, and these have been considered by the States and payments have been made accordingly, the States will be reimbursed by the Commonwealth through this legislation. Referring to a comment made by Senator Poke, 1 say that we believe that this legislation will be seen by the States to be an incentive to them to increase their payments in this field. This will be of very great advantage to the section of the community referred to in the Bill.
Senator Poke raised one or two other matters which 1 should like to mention. He referred to Victoria and asked whether the special benefits would continue in ‘that State if Victoria did not join in the scheme. I can assure him that the special benefits will continue if Victoria does not join in the scheme. He also read a letter which related to what the Minister for Social Services had said in his second reading spee?h. I refer to the Minister’s remarks to clarify the point which was raised by Senator Poke. The Minister said:
The grant by the Commonwealth will be half the cost of the approved assistance paid, by the State to each eligible person bin shall noi exceed half the amount that would have been payable to such a person under the Social Services Act had she been eligible for a class A widow’s pension; that is, the amount payable id a widow pensioner who has the custody, care and control of a child or children.
The example which he mentioned, I believe, relates directly to the point that the honourable senator was most concerned about. The Minister added: . . a deserted wife who has. no income or property, who pays rent for her home and has two children would be, if qualified, entitled to receive a total of $22 a week by way of pension and supplementary assistance under the Social Services Aci. The maximum Commonwealth subsidy in respect of any State assistance grained to such a woman would therefore be $11 a week in addition lo Iiic normal Commonwealth child endowment payments.
I hope that this clears up the point raised by the honourable senator. He asked also whether, if one claimant Stale pays more than another in social services assistance, it receives, relatively, more assistance from the Commonwealth.
– If I may interject, I asked whether it is a fact that a claimant State would be penalised if it spent more on social services than was spent by a standard Slate, such as New South Wales.
– The amount paid to a State by the Commonwealth would be greater if the State had spent more on social services, subject to its payments not exceeding the ceiling of a class A widow’s pension.I believe that that deals with the point raised by the honourable senator.
– The Commonwealth pays 50% of what the States spend, provided that payments do not exceed that ceiling?
– Yes, the Commonwealth matches the expenditure by the States, but reimbursements to the States must be within the ceiling of a class A widow’s pension. This Bill will come into operation in afield in which there has been a very real need. It is a need which the Minister and the Department of Social Services have noted and have been concerned about. After discussions with the States, the Government is bringing into operation legislation to provide further assistance which I believe will help very many women who have the care and custody of children, who are in the unfortunate situation of being deserted wives or wives whose husbands have been imprisoned, and others who. with children in their custody, are in very real need. I have great pleasure in supporting the Bill. I thank those honourable senators who have spoken to it.
Question put: that the words proposed to be added (Senator Poke’s amendment) be added.
The Senate divided. (The President - Senator Sir Alister McMullin)
Majority . . . . 3
Question so resolved in the negative.
Original question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Motion (by Senator Anderson) proposed:
That the Senate do now adjourn.
– I. want to take the opportunity at this relatively late hour to make some submissions on behalf of the New South Wales Branch of the Shop Assistants Union. As the submissions relate to taxation deductions I think the time is opportune to raise this matter in order that either the Treasurer (Mr McMahon) or the Commissioner of Taxation can make necessary adjustments. I refer to the practice that has developed in regard to female employees in major retail establishments in the capital cities who are required to wear a distinctive uniform. A Deputy Commissioner of Taxation sought in a letter, reference No. 19/C/K48432/67, to draw a distinction between shop assistants and people such as ships’ stewards or miners who wear helmets and safety boots instead of their normal clothing. The Deputy Commissioner of Taxation states that the ordinary clothes worn by an office worker or a tradesman are not allowable deductions for income tax purposes. The union takes strong exception to the interpretation of the Deputy Commissioner of Taxation. The test applied by the union is the obligation imposed by an employer on a particular employee. To put the matter in a different way, people engaged in the building trades or the metal trades can wear old football jerseys underneath their overalls or boiler suits without their employers claiming that it interferes with their production. But in many major departmental stores the employer insists on a particular uniform. It may consist of a black dress, a black and white dress, a white blouse or a black cardigan in the winter time.
Girls in the capital cities would not wear these particular clothes home. In this modern age such a mode of dress while travelling to and from work might bc regarded as being of the Saint Trinian’s Girls’ College vintage. It is obvious from the statement by the Deputy Commissioner of Taxation that he misses the point made by the unions. It is not a case of the girls having a choice of wearing a particular frock to work. A particular mode of dress is laid down and is one of the conditions of employment. Consequently, the union contends that the cost of these clothes should be a legitimate taxation deduction.
I will go a little further with my submission. I am dealing in the first instance with the existing rulings applied by the Deputy Commissioner of Taxation. For the guidance of the Leader of the Government (Senator Anderson), who is at the table, the file number is K48432. J will give the dates on the documents to the Minister at the conclusion of my address. The union points out that in some years particular members of the union who work in these major retail stores have been allowed deductions and in other years they have not. The point I wish lo make is that, firstly, there is a lack of consistency by the Deputy Commissioner of Taxation and. secondly, as can be seen by this letter of 19th March 1968, the Deputy Commissioner misses the point that the employer imposes as a condition of employment that female retail sales personnel shall wear this particular uniform, which is not of much use to them outside their place of employment.
There have already been decisions along this line and I refer in particular to Taxation Board of Review decision, Vol. 14 (New Series, Case 10), where is was pointed out that the parents of certain pupils obtained a deduction because those pupils were wearing shoes that were part of the school uniform and were not’ otherwise worn. It is quite obvious that this situation should be remedied and if it is not done so administratively by the Deputy Commissioner for Taxation it is a matter that the Commonwealth Treasurer should consider when he is preparing the Budget. At page 242 of the December 1967 issue of Current Taxation’, which is edited by Bock and Mannix, it is pointed out that some day somebody may have sufficient money to take the matter to the High Court. I know that the whole structure of taxation deductions is constantly under review, but [ do not think that the organisation concerned here, the New South Wales Branch of the Shop Assistants Union, should have to embark on costly litigation in order to get justice for its members. We have to realise the necessity for some employees to wear a uniform of sorts. The same position applies today in heavy industries whose workers do not go home in their old dungarees; amenities are provided for them to change.
The girls are not quarrelling about having to wear uniforms, as it is a condition of their appointment. But remedial administrative action should be taken or legislation should be enacted to correct the unfairness that exists. I therefore make these submissions at this late hour confident that the Minister will take them up with the Treasurer. I know that many girls who are receptionists in dentists’ and doctors’ surgeries receive some concession. I think honourable senators are aware that on one occasion the Senate debated ordinances dealing with protective clothing for employees in the meat industry. That was one instance where in proceedings before a Conciliation Commissioner the employer accepted some responsibility for the payment of an allowance. On that occasion we were dealing with something that was bound up with the export trade, so it was on a different plane to this matter. Knowing other instances where considerable flexibility is exercised in respect of taxation deductions, 1 respectfully request that the
Deputy Commissioner of Taxation review this matter and take full cognisance of the fact that the employer lays down a mode of dress for the employees. If it is not practicable for him to allow a deduction the Government should give prompt attention to providing for this concession in the Budget.
– in reply -I will certainly direct Senator Mulvihill’s comments to the Treasurer (Mr McMahon). The honourable senator covered a rather wider field than -I had anticipated, but I have obtained some information for him. The Commissioner of Taxation is “responsible for the administration of the income tax law and he has advised that, as a general rule, the cost of providing and maintaining normal working clothes is an outgoing of a private nature which does not qualify as an allowable income tax deduction. However, depending upon the particular circumstances, exceptions may be made where the clothing is not worn as conventional attire and is necessary and peculiar to the employee’s occupation. In a Taxation Board of Review decision given last year, it was held that expenditure incurred’ by a shop assistant in replacing and dry cleaning a black dress, which she was required to wear at work, was not an allowable deduction. I understand that this decision is being followed on an Australiawide basis, but if the Shop Assistants Union is aware of any case in which inconsistency is alleged the Commissioner would be pleased to examine the matter on receipt of full details.
– Am I to interpret the Minister’s reply as meaning that I should furnish these documents or that the union should forward them to theDeputy Commissioner of Taxation?’
-I think the honourable senator should let me have the documents and I will look at them.
Question resolved in the affirmative.
Senate adjourned at 11.46 p.m.
Cite as: Australia, Senate, Debates, 12 June 1968, viewed 22 October 2017, <http://historichansard.net/senate/1968/19680612_senate_26_s37/>.