19th Parliament · 1st Session
The President (Senator the Hon. Gordon Brown) took the chair at 8 p.m., and read prayers.
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PortofAlbany- Westernaustralian Services.
SenatorPIESSE.- Has the Minister for Fuel, Shipping and Transport anything further to report regarding the winter load-line for ships using the Port of Albany, Western Australia? This matter was brought to the notice of the Minister at a conference with the Albany Chamber of Commerce on Easter Tuesday last.
– I realize that this matter is important to the people of Albany, but so far I have not received advice from the officers concerned that the matter has been finally settled. The Government is doing everything in its power to ensure that what amounts, in effect, to a stigma is removed in order that shipping, and particularly overseas shipping, will be encouraged to use the Port of Albany. As soon as further information is forthcoming, I shall make it available to the honorable senator.
– I understand that the Minister for Fuel, Shipping and Transport now has a reply to a question I asked him some time ago about making available shipping space for goods that are urgently needed in Western Australia.
– In reply to the question which Senator Scott asked some time ago about delay in the shipment of certain goods to Western Australia, I am pleased that I am now able to inform him and the citizens of Western Australia that in spite of the Communists River Murrumbidgee sailed from Melbourne this morning for Western Australia with a full cargo of goods urgently required in that State.
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– Can the Minister for Repatriation say whether it is a fact that over 40 doctors at Heidelberg Repatriation Hospital signed a petition, praying for the reinstatement of Dr. James, pending a departmental inquiry into the cause of his dismissal? Is it a fact that a large number of patients of the Heidelberg Hospital also signed a petition requesting the reinstatement of Dr. James ? Is it a fact that Dr. James, on the 30thMay, 1950, and again on the 7th June, 1950,wrote to the superintendent of the Repatriation Hospital requesting the reasons for his dismissal, but that, up to the present, neither of the letters has been answered? Is it a fact that no complaint was made against Dr. James by the superintendent of the Heidelberg Hospital or others in authority? Is it a fact that Dr. James was performing special work in the interest of patients? Is it a fact that this work required special study, and that, up to the time Dr. James left, no doctor was giving special study to this work? Is it a fact that Professor R. D. Wright, Professor of Physiology at the University of Melbourne, publicly eulogized Dr. James for his skill and conscientiousness? Is it a fact that Dr. James stated that he would welcome an opportunity to answer any charges that might be made against him ? Is it not a fact that, in the absence of stated reasons for the dismissal, people can only conclude that it is a gross injustice, and tantamount to victimization? In view of the Minister’s refusal to set up a board of inquiry, will he tell the Senate why Dr. James was dismissed?
– It would be very difficult to answer off-hand all the questions that the honorable senator has asked. Some doctors have written to the authorities about Dr. James, but I have no knowledge of any communications having been received from patients at the hospital. With regard to the other matters raised by the honorable senator, ifhe will put the question upon the notice-paper I shall do all that I can do to ensure that a reply is furnished as early as possible.
– I direct the attention of the Minister for Repatriation to the case of a Victorian ex-serviceman who was blinded in the first world war. He has now developed a heart disease which the Repatriation Commission has refused to accept as being war-caused. He has a wife and one child of eleven years of age and is trying to support them on a part pension. Medical treatment and fares to and from hospitals are costing him approximately £1 a week. His heart is in such a bad condition that he cannot wait at general hospitals for the usual time that patients are required to wait before being treated. If the British Medical Association were to give the people of this country the medical benefits to which they are entitled this man would not be in his present tragic plight.
– Order! The honorable senator must ask his question.
– Will the Minister make a special investigation of this case, the particulars of which I am prepared to supply to him later ?
– If the honorable senator will give me the full particulars of the case to which he has referred, an immediate investigation will be made.
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– Has the Minister for Trade and Customs a statement to make to the Senate concerning representations that are being made by the Tasmanian Government and exservicemen’s organizations that prefabricated houses imported by migrants and industrial organizations be allowed into Australia free of duty?
– As far as I know, prefabricated houses from the United Kingdomare allowed into this country free of duty. If they are imported from places other than the United Kingdom, we must, under the terms of the Ottawa Agreement, impose a tariff of 12½ per cent. upon them. In some instances the United Kingdom has waived its right to preferential treatment and prefabricated houses from countries other than Britain have been allowed into this country free of duty.
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– Will the Minister for Repatriation say whether the allowances paid to students under the Commonwealth Reconstruction Training Scheme are to be increased, especially the allowance for the purchase of textbooks, the cost of which has increased considerably ?
– The question of increasingthe allowances payable to students under the Commonwealth Reconstruction Training Scheme is under consideration. The allowances for the purchase of text-books and other equipment will be adjusted.
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Senator ANNABELLE RANKIN.Will the Minister for Trade and Customs give consideration to the inclusion of a women’s convention in the ceremonies that will mark next year as Jubilee Year ? The convention could consist of a delegate of women’s organizations from each State, of women representatives of mixed organizations such as the Australian Red Cross Society, and women representatives of the professions, crafts, industrial groups, cultural and community activities, and the Services. I ask the Minister to consider seriously the opportunity that such a convention would present for giving the women of Australia a chance to. participate in the 50-year anniversary in a notable way.
– I shall be very happy to place the honorable senator’s suggestion before the committee that is arranging the celebrations.
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– I preface my question to the Minister representing the Minister for Health by pointing out that the only source of information about the Government’s negotiations with the British Medical Association in connexion with the provision of pharmaceutical benefits to the people is the press. A newspaper report recently indicated that the British Medical Association had promised to co-operate with the Minister for Health in this connexion. If that is true, will steps be taken promptly to enable sick members of the community to take advantage of the pharmaceutical benefits legislation?
Senator -COOPER. - I shall be very pleased to bring the honorable senator’s question to the notice of my colleague, the
Minister for Health, and request that a reply shall be furnished as soon as possible.
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– Will the Leader of the Government say whether it is a fact that the Government has agreed on a formula to restore value to the £1 ? If so, is he prepared to make a statement concerning the matter? If he is not prepared to do so, can he give the Senate any indication when the Government is likely to reach a final decision on this very important matter?
– As I have stated in this chamber on many occasions, and as Sir Stafford Cripps has stated in England, the restoration of ‘currency value is not something that can be achieved by making formal by-laws or regulations, but is a matter that requires the utmost co-operation of all members of the community. I should like to see more evidence of lie Opposition’s willingness to co-operate in the matter.
– Can the Minister give some idea how the people can co-operate in assisting the Government to restore value to the £1 ?
– It is very difficult to elaborate my statement by a process of question and answer. However, one way in which the value of the £1 could be restored is by greater efficiency in management, greater production by the workers, with fewer strikes and hold-ups and less absenteeism. There are many ways in which we can all make a greater contribution than we are making at present.
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– Will the Minister representing the Postmaster-General say whether it is a fact that a cattle breeder from Rhodesia, who was interviewed on the 2FC network of the Australian Broadcasting Commission on the Sth June, revealed that native boys in that country are working long hours for 22s. a month, plus a ration of meat and beans and sometimes of peanuts? In view of tas recent statement by a responsible Minister in the House of Representatives concerning conditions in Malaya, will the Minister inform the Senate whether rural conditions in Rhodesia are as described by the visitor whom I have mentioned, and whether the commission desired to disseminate that information when it arranged the interview? Can the rural workers of Australia expect this Government to endeavour to make rural conditions in this country conform with those which obtain in Rhodesia?
– Concerning the last , Dart of the honorable senator’s question, I assure him that the Government does not desire to introduce conditions such as he mentioned to Australia. If the honorable senator will place the remaining part of his question on the notice-paper I shall draw the attention of the Postmaster-General to it and obtain an answer at an early date.
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– by leave - I desire to make a personal explanation in connexion with a report that appeared in the Tribune and which grossly misrepresents me. Those people who heard my speech on tho second reading of the Communist Party Dissolution Bill will know to what I refer. I am not one who writhes under criticism, nor do I care what the Communist party says about me. The only harm it can do me is by saying something good about me. However, when an individual who represents that party indulges in deliberate lies to discredit the characters of Labour members of the Senate, it is time to do something about it. The report appeared in the Tribune of the 7tl] June. Under the heading, “Donald Grant at His Very “Worst it states -
If any worker still holds the illusion that Senator Donald Grant is interested in the welfare of the working class, those illusions should be shattered for all time by his speech to the Senate on the Menzies Fascist Bill.
Grant tore history to shreds in order to vent his spleen on” the Soviet Union and Socialism. Here are some examples of his fantasy and the real facts:
The article then goes on to compare its version of what I said, which it describes as “ fantasy with what it claims to be the truth and describes as “ fact “. I shall not read all the comparisons, but, with the indulgence of the Senate, I shall refer to one only. I am reported to have said -
What’s wrong with British Imperialism anyway? We’re doing all right under it.
The “ fact “ according to this newspaper is that -
British Imperialism has a record second to none for bloodshed, murder, rape, and plunder among the colonial peoples.
I did not make the statement that this article attributes to me. I never run away from anything that I have said. If I find that something I have said is wrong, I have no hesitation in apologizing for my error. I am not concerned with what the Tribune claims has happened in Latvia and Estonia. Everybody knows the truth about those countries, but when it alleges that I said, “What’s wrong with British Imperialism, anyway? We’re doing all right under it I believe it only fair that I should repeat exactly what I did say. I have before me the Hansard proof of my speech. The only reference that I made to imperialism was in the following passage : -
If the Government thinks that by making provision for the declaration of people who advocate revolution or the overthrow of capitalism by force it will catch the Stalinites, it is making a bad mistake. They are not doing anything like that now.
That means that the Stalinites are not advocating revolution now -
They are part and parcel of a plan to undermine British or American imperialism in order to assist Russian Imperialism. That is what they are doing now.
I say again that Russian imperialism is the worst of all. I have a little prestige in the Labour movement, and perhaps among the people of this country, and I say again that the report of my speech was a deliberate lie, told with no other intention than to blacken my character. I believe that I am entitled to bring this matter to the notice of the Senate and I should like to know whether anything can be done about it. Is the representative of this newspaper to be permitted to sit in this chamber, and deliberately lie about what is said here? I understand that there are means by which such activities can be countered. I ask you, Mr. President, whether anything can be done to protect, not only myself, but also other honorable senators from individuals who use their privileges in this place not to place the truth before the people of this country, but to assassinate the character of honorable senators ?
ThePRESIDENT (Senator the Hon. Gordon Brown). - This matter presents some difficulty, but the Presiding Officers of the Parliament do have certain powers which have been exercised occasionally. It is deplorable indeed that any section of the press should lie about an honorable senator. However, Senator Grant has had some redress because to-day our proceedings are being broadcast, and many people will have heard what he has said. Nevertheless, I assume that many other readers of this newspaper - I do not know what its circulation is - will not have heard the honorable senator’s reply. Therefore, I assure him that I shall look into the whole matter, and ascertain what can be done to safeguard honorable senators from this form of misrepresentation.
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– I direct a question to the Minister representing the Treasurer. Is it a fact that approval has been given for dollar imports to the eastern States importers in far more generous proportions than those granted to importers in Western Australia? Is he aware that imports requiring dollar expenditure are being denied to Western Australia? Will the Minister obtainthe figures showing the dollar expenditure approved for imports into the respective States for the six months ended the 31st May, 1950?
– I do not pretend to have the details within my recollection. I believe that it is most improbable that there has been any variation of the formula which assessed the dollar requirements as between the respective States. The dollar requirements are such a vexed problem that alterations as between the. States and between industries and interests competing with industries are made very seldom indeed, because of the competition for dollars. Although I believe that that general impression will be shown to be correct, the only satisfactory answer to thehonorable senator is to ascertain whether the Treasurer is prepared to make the information available. I shall confer with him and see if he will do so. I am not quite sure of the position. It may be that the Treasurer is not prepared to make available the details. If that is so, I shall ask him for a general statement which will answer the honorable senator’s inquiry.
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Is it a fact that the former Prime Minister, the Right Honorable J. B. Chifley, promised an amount of £30,000 towards the establishment of a national theatre and that the present Prime Minister has expressed his willingness to support the project? Ifso, what is the present position?
It is a fact that the previous Government offered to join with the States in a scheme to bring high-class productions to Australia and to prepare the ground for the establishment of a national theatre. The proposal was that the Commonwealth would provide a contribution of £30,000 provided the States contributed a like amount. In addition, the Commonwealth would provide a fund of £20,000 for overseas training of theatre technicians, actors, producers&c. The scheme, I understand, did not meet with the unanimous approval of the State governments and was not proceeded with. This Government has given some consideration to this matter and proposes that, in the first instance, it will give support to dramatic art in connexion with its plans for the Commonwealth jubilee celebrations.
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asked the Minister representing the Acting Minister for Civil Aviation, upon notice -
– The Acting Minister for Civil Aviation has supplied the following replies to the honorable senator’s questions: -
asked the Minister representing the Acting Minister for Civil Aviation, upon notice -
– The Minister for Civil Aviation has supplied the following answers : - 1 and 2. I have had inquiries made and have ascertained that Trans-Australia Airlines does in fact grant the same concession to school children travelling on vacation as do both Australian National Airways Proprietary Limited and Ansett Airways Proprietary Limited, namely on production of a certificate stating that the student is, in fact, travelling on vacation, a 50 per cent, concession on the published fare is allowed for children fifteen years and over attending secondary schools on full-time basis.
asked the Minister representing the Acting Minister for Civil Aviation, upon notice -
Will the Acting Minister inform the Senate whether any further work on the Smithton Aerodrome is contemplated; if not, what arc the objections to its completion?
– The Minister for Civil Aviation has supplied the following answers : -
The further development of the aerodrome at Smithton is a matter for the State and/or local authorities who have been fully informed as to the works required. There is no objection by the Commonwealth to the completion of this work.
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– by leave - Senator Ward, who is much liked and respected by all honorable senators, has recently suffered a bereavement in the loss of his sister. I am sure that honorable senators will approve of a proposal that the Senate place on record its sympathy with Senator Ward in his bereavement.
– Is it the pleasure of honorable senators that the Senate place on record its sympathy with Senator Ward in his bereavement?
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In committee: Consideration resumed from the 13th June (vide page 4107).
Clause 5 - (4.) Upon the hearing of the application, the declaration made by the Governor-General under sub-section (2.) of this section shall, insofar as it declares that the applicant is a body of persons to which this section applies, be prima facie evidence that the applicant is such a body. (5.) If, upon the hearing, the court finds that the applicant is not a body to which this section applies, the court shall set aside the declaration. (0.) If the court does not so find, the court shall dismiss the application and the declaration shall remain in force.
Upon which Senator Spicer had moved by way of amendment -
That sub-clauses (4.), (5.) and (6.) be left out, with a view to insert in lieu thereof thu following sub-clauses: - “ (4.) At the hearing of the application, the applicant shall begin; if evidence is given in pel-son by such officer or officers of the applicant as the court is satisfied is or are best able to give full and admissible evidence as to matters relevant to the application, the burden shall be upon the Commonwealth to prove that thu applicant is a body to which this section applies, but, if evidence is not so given, the hurden shall be upon the applicant to prove that the applicant is not a body to which this suction applies. “ (5.) Upon the hearing of the application, thu declaration made by the Governor-General under sub-section (2.) of this section shall, insofar as it declares that the applicant is a body of persons to which this section applies, In: prima facie evidence that the applicant is such a body.”
Senator McKENNA (Tasmania) *8.36. - When the committee adjourned last night, we were considering clause 5, which deals with the declaration of organizations other than the Australian Communist party. The clause does not affect industrial organizations registered under a ‘law of the Commonwealth or of a State. The committee was considering in particular the onus of proof that is east on a declared organization if it appeals to a court of law against the declaration. On behalf of the Opposition, I say that there would be no prolonged discussion of this clause but for statements made by two responsible Ministers, the Minister for Trade and Customs (Senator 0’.Sullivan) and the Minister for Social Services (Senator Spooner). I propose to discuss those statements, but first I wish to touch upon some incidental matters that were raised in the course of the debate. The AttorneyGeneral ^Senator Spicer) referred to a recent judgment of the Supreme Court of the United States of America, in the course of which, as he told us, it upheld the validity of legislation that required from an industrial organization a declaration that it was not dominated by Communists as a condition to its being allowed to approach the arbitral tribunals of the country, and he drew an analogy between the position of such industrial organizations and that of organizations declared under this legislation.
I maintain that there is not the slightest analogy. In the first place, in the United States of America, the union itself makes the declaration, not the government. In the second place, the union pleases itself whether it makes the declaration or not. It is for the union to decide whether it wants recourse to the arbitral tribunals or not. But the most important distinction is that, in the United States of America, there is not involved any dissolution of the organization concerned, or any expropriation of its property. I make the further point that, in the United States of America, there is very little recourse to arbitral proceedings. Bargaining takes place between the employers on the one hand and the employees on the other. In nearly all instances, wages and conditions are adjusted by power-bargaining of that kind. Unhappily, the very full provisions for arbitration that we possess in Australia, are not known in the United States of America.
The Federal Bureau of Investigation in the United States of America never has any hesitation in placing before the courts of the land evidence it has accumulated against persons charged with spying, sabotage and other offences that are subversive of government. I found on my table to-day an invitation to attend the screening of some films in the Senate Opposition party room this evening. The Federal Bureau of Investigation is the subject of one of the films, produced by “March of Time”, the screening of which will take approximately seventeen minutes. The invitation, after describing the nature of the film, states -
In conclusion, reconstruction of an actual investigation into a case o.f espionage shows the F.B.I, in action.
There is no secrecy about the operations of that body. It does not hesitate to lay its evidence before the courts of America, in accordance with the ordinary processes of law.
Senator Gorton claimed that, if the onus of proving a case rested fully upon the Crown, it would be impossible for the Crown to succeed in having its declaration upheld. I refer the honorable senator to what the Attorney-General said, very specifically, on the 30th May, in the course of this debate. It is as follows : -
Is it seriously suggested that any responsible Minister of the Crown who has taken the oath of office would ask the Governor-G’eneral to make such a solemn declaration unless he had the soundest possible evidence to support his request? Every time a Minister acts in relation to a serious matter of this kind, he must be satisfied that there is on his files, among the material on which he acts, all the evidence that is required to support his signature.
Senator Gorton’s suggestion that there would be difficulty in upholding a declaration has been confounded by the AttorneyGeneral, who has said, in specific terms, that no declaration will be made unless the Government has the soundest possible evidence, or all the evidence required. If the Government is in possession of the soundest possible evidence or all the evidence, the difficulty referred to by Senator Gorton will disappear completely.
– The Government has made its position very easy in regard to the admissibility of evidence. If the honorable senator will refer to a later clause of the bill, he will find that matters of proof are facilitated to an exceedingly high degree.
– It might be against the public interest to disclose the information on which the Government has acted.
– That is the corner in which the Attorney-General and the Government take refuge all the time.
– It is important from the viewpoint of national security.
– In answer to that interjection, I remind the Senate that I have just referred to the Federal Bureau of Investigation in the United States of America and that I have cited my own experience during the periods when I was acting as AttorneyGeneral, in the absence of the right honorable member for Barton (Dr. Evatt). During that time, I considered very many matters, but only on one occasion was it necessary for me to take that stand. No honorable senator opposite has said anything which suggests that that position has altered at all, or in any material way.
I believe that I am interpreting Senator Maher correctly when I say that he said that an organization would not be in any difficulty in beginning the proceedings in a court. I point out to him what will take place. One fine morning, any organization in this country, other than the ones that I have said will be exempted, may find that it has been declared in the Commonwealth Gazette under the provisions of this clause. The declaration will state, first, that it is a body to which these provisions apply, and secondly, that its continued existence would ,be prejudicial to the security of this country. At that stage, the organization will have no knowledge of the facts alleged against it. It will not know in which of the four categories it has been placed. It will not know whether it is alleged that it is affiliated with the Communist party, that a majority of its members or of its committee are members of the Communist party, that it has been advocating the principles of communism, or that it is influenced by certain Communists. It will not know which of those allegations have been made against it. Then it will have to face the widest possible allegation - that its continued existence would be prejudicial to the security of this country. I invite any honorable senator who is associated in an executive capacity with an organization in this country to imagine his plight if, for instance, his golf club o”r his social club were declared. How would an organization begin to rebut allegations of the kind to which I have referred when it had no particulars of what was alleged against it?
– The allegations would never be made against a golf club.
– The Opposition has agreed to leave the definition of an organization exceedingly wide. We have done so for the very good reason that we realize that the Government must be enabled to pursue the Communist party in any new form that it may take. I have given instances, that the Government has made no attempt to rebut, of organizations as relatively unimportant as a kindergarten committee and a school committee that fit the definition contained in this bill. It covers all organizations, from major bodies with Australia-wide activities to the smallest bodies operating in this country.We have agreed that that definition should be allowed to remain in the bill. We do not want the Government to be able to say that we have blocked it in its attempt to follow the Communist party, whatever the guise or disguise in which it may seek refuge. We are completely at one with the Government in regard to the banning of the Communist party and allowing the Government to pursue that party in any new form. That is a complete answer to the case that was attempted to be made by Senator Maher. Although he has stated that organizations would be in no difficulty, I think he will agree, upon reflection, that that is not so, especially if he will imagine himself as the chief executive officer of an organization against which those two allegations have been made and being called upon to rebut them without having the slightest knowledge of the facts alleged against the organization.
That brings me to two comments that were made last night to which the Opposition takes the strongest possible exception. The Minister for Trade and Customs (Senator O’Sullivan) said that only Communists and the Labour party wanted this bill defeated.
– Why not allow it to pass ?
– Does the Attorney-General support the statement that was made by his leader?
– Why not pass the bill ?
– The AttorneyGeneral has not answered my question. The Minister for Social Services, speaking accusingly and looking accusingly at honorable senators on this side of the chamber, told us that we were either for communism or against communism. Both those statements, made by responsible members of the Government, were most unfair and grossly misrepresented the position of the Opposition and the Federal Parliamentary Labour party. I am amazed that responsible persons should continue to say those things when they know that the reverse is true. I invite them to say whether the Government officially regards the Labour party of this country as pro-Communist. Although this question has been asked many times, it has been shirked by Ministers. Does the Government support the statements of the Minister for Trade and Customs, and the Minister for Social Services that they consider that the Labour party of this country is pro- Communist ?
– To say nothing of Senator Maher.
– I am concerned more about the statements that have been made by highly responsible Ministers of the Crown, to whose every utterance a great deal of weight and importance attaches.
– Does the honorable senator include Senator Morrow in his remarks ?
– Some honorable senators opposite have had a lot - probably far too much - to say about Senator Morrow.
– (SenatorNicholls). Order ! The honorable senator’s time has expired.
– Whether due to a fault or a virtue, I do not know, but. I can never refuse a challenge. I make this reply to Senator McKenna, that, by placing such emphasis on a comparatively small matter in relation to such a big problem, the Opposition has disclosed where its sympathies lie. The Opposition has agreed with the recitals contained in the preamble to the bill, and therefore agrees with the principle of the bill. But because of its majority in this chamber, it has insisted on the acceptance of a comparatively small alteration, an amendment of little consequence in the big scheme of things. I believe that it is fair comment to say that on this particular matter the Labour party wishes to see the Government humiliated by being placed in the position that this legislation will not operate properly, and thus accepts the risk or responsibility that its action will result in the protection of the Communists. This is a difficult enough task. Even assuming that the Opposition will not finally insist on acceptance of the amendment that it has moved, when this legislation finally emerges from the Parliament the Government will have a most difficult task to carry through its policy to a successful conclusion. I repeat that this technicality is a matter of -minor significance in comparison with the scheme as a whole. In those circumstances the Opposition must accept the judgment that it is not so much against communism as against the Liberal party. In other words, the Opposition is working to develop conditions under which it would be extremely difiicult for the Government to get at the Communists, rather than give it legislation that will achieve the desired results. That is the charge I make. I repeat what I said last night, that I do not think it is unfair to say that there has been talked in this chamber the most extravagant nonsense about the onus of proof clause. Cabinet, acting on the advice of a committee of senior officers, would reach a decision and make a recommendation to the Governor-General, on which His Excellency would act. That would be complete protection in a practical way for the Australian people, no matter what type of government was in office. But the Opposition has refused to accept that formula. It has refused to accept amendments that have been moved by the Government in order to meet the difficulties that the Opposition has raised. I make the challenge that the fight of the Opposition against communism is a sham fight. We have a tremendous task to carry through. If the Opposition is sincere it should help the Government in that task. We have shown our bona fides in this matter by amending our original scheme in an endeavour to get the help and co-operation of the Opposition. Surely if the Opposition is sincere, the Parliament should be able to speak with one voice on this matter. On a matter of such comparatively small importance, the Opposition should be happy to let the . Government accept the responsibility. The Opposition has to choose which road it will take. Will it assist the Government to cope with this problem, or not? It is able to throw obstacles in the way of the Government only because of its accidental majority in this chamber. I believe that one can quite fairly say that the heart of the
Opposition is not in the fight against communism. Eventually it will have to answer to the people of Australia for its attitude to this matter.
– Having listened to the Minister for Social Services (Senator Spooner), I say at once that he has made the position, from the viewpoint of the Opposition, very much worse. On behalf of my colleagues I resent very strongly the suggestion that we have shown a lack of co-operation with the Government in this matter. Let me demonstrate how unfair the Minister’s criticism was. After the Government had introduced the measure in the House of Representatives, it found it necessary, after criticism by the Labour Opposition in that chamber, to move nineteen amendments to it. I remind the Government that the bill had been under consideration for months before it was introduced. The large number of amendments which the Government found it necessary to make to the bill after it was introduced demonstrates just how illconsidered it was and how much it merited criticism. I must also direct attention to the fact that its passage through the House of Representatives was “ gagged “ outrageously. The time for discussion of specific clauses was limited again and again, and so severely was debate curtailed in that chamber that many amendments of which notice had been given by the Opposition were not submitted at all. The bill was then introduced to the Senate, and one might have thought that after its preliminary experience in the House of Representatives, the Government would have cleared its mind on the bill. But what was our experience in this chamber? The Prime Minister (Mr. Menzies) had announced that five amendments would be made to the bill in this chamber. That statement appeared in . the press and mention of it was given in this chamber unofficially. Later in the day the Leader of the Government (Senator O’sullivan) handed to the Leader of the Opposition (Senator Ashley) the text of thirteen brand new amendments .which the Government intended to move.-
– The Prime Minister (Mr. Menzies) indicated, when he made his announcement, that more than five amendments would be moved.
– The number increased from five to thirteen in one day.
SenatorSpicer. - That is false.
– That is a part of the story. Before one hour had elapsed we received a printed document containing sixteen amendments, and within the next hour that document was withdrawn and another document substituted for it.
– Because one word was wrong in the first document.
– The fact remains that that word occurred four times in one clause, and the word was so important that the Government had the entire document reprinted. That indicates clearly the state of confusion and indecision that existed in the minds of members of the Government. For that reason there was need for a considered criticism of the measure in this chamber. If ever there was need for an Opposition to criticize a measure it occurred when this ill-begotten measure came before it. The bill was, and is, so ill-begotten that it is fortunate that means exist in this chamber at present to prevent the Government from curtailing debate onit.
I propose now to examine the amendments proposed by the Government and to compare them with the purpose of the hill. The first purpose of the bill is to smash communism, the second purpose is to pick up the Communist party’s auxiliary organizations, and the third purpose is to remove Communists from key positions in the trade unions and from the Public Service. With all those objectives the Opposition has agreed. We have agreed to the clause that will enable the Government to ban the Communist party. We are now in process of agreeing to the clause that will enable the Government to follow the Communist party into any other form or organization which it may assume. We have not opposed, but, on the contrary, we all support, the provision to enable the Government to remove Communists from key positions in the Public Service and from the trade unions. Yet the Minister suggests that we are sympathizers with Communists. The one real difference between the Government and the Opposition in this matter is that in order to achieve those great purposes of which we approve and which we have supported publicly, inside and outside the Parliament, we have asked for the inclusion of one more provision which the Government is not prepared to concede. We want ordinary democratic principles to be employed - the ordinary democratic processes of law with a right of access to the courts of the land. What is the Government’s attitude to our demands? It wants to be in the position to damn an organization, to impose a virtual sentence of death upon it, to damn an individual, and to deny to it or him adequate recourse to the courts. The position which would confront us if clause 5 of the bill were passed in its present form is that the Government would be entitled to declare that an organization was Communist-dominated, and that its continued existence would be prejudicial to national security. The Government is prepared to permit an appeal to the courts against a declaration that an organization is Communistdominated, but it will not concede to an organization or to an individual the right to appeal to the court against the far more serious allegation that its existence is prejudicial to security. It wants to deny that right to the individual. The Government, which professes to stand for freedom, has the audacity to ask the Parliament to allow the executive of the day to damn an organization or an individual in the community with the most serious charge that can be levelled against it or him, without the slightest recourse to a court.
– What about the condemnation of Labour members of the Parliament of New South Wales?
Opposition senators interjecting,
– Order ! Senator McKenna will continue his remarks.
– Let us adhere to the clause. There is one point of fundamental difference between the Government and the Oppositionin this matter. We ask that ordinary democratic processes he observed, but the Government asks for totalitarian authority. So long as the Labour party remains in existence we will never concede that right to any government. We did not attempt to take it when we were in office, and we will not grant it to the present Government.
I shall refer now to another statement that was made by the Minister for Social Services. He referred to the fundamental difference in the methods of enforcement proposed by the Government and those advocated by the Opposition and dealt with the onus of proof. However, he dismissed lightly, as a mere technicality, the employment of the processes of law and the right of full recourse to the courts. He referred to them as matters of minor consequence. That is the dangerous viewpoint held by the Government, with which we are greatly concerned. The Government regards the ordinary rights of the individual, suchas access to the courts and employment of the due processes of law as matters of mere technicality. It thinks nothing of the rights of individuals or organizations; those rights are dismissed as “ matters of minor consequence “. Let us not be deceived about the difference that lies between the Government and the Opposition. The banning of the Communist party is not a subject of difference between us.We do not differ with the Government on the clause which provides for the expropriation of the property of the Australian Communist party. We agree with the Government on the proposal to follow the Communist party into other forms and organizations which it may take. The removal of Communists from trade unions and the Public Service is not a point of difference between us. The real contest is whether we should employ ordinary democratic processes, tried down the centuries, or whether we should employ the new technique of totalitarian government. That is the issue which divides us. There is no remaining difference between the Government and the Opposition; all the other issues are out of the way.
I regret that I have expressed myself with some heat in relation to this matter, because it is not usual for me to do so. However, I am deeply concerned, as is every member of the Opposition, that despite complete agreement on the main purposes of the bill, honorable senators opposite, including respon sible Ministers, should accuse us of sympathizing with the Communist party. That allegation is totally unfounded, and I say deliberately that itis wholly untrue to the knowledge of those who have made it. The exchange of views between the Government and the Opposition that has just taken place was provoked by the remarks made by the leader of the Government and the Minister for Social Services. The position has been worsened by the most recent comments made by the Minister for Social Services. He has added to his previous allegation that we were pro-Communist the allegation that we lack sincerity, and that the stand taken by the Opposition on this clause discloses on which side our real sympathies lie. He went farther and accused the Opposition of sympathy with the Communist party. I say to him and to all members and supporters of the Government that when the present Government has achieved a record of action against communism such as Labour achieved when it was in office, which was summarized in the ten points that I made in my second-reading speech, they can feel that they have done something more to combat communism than merely to talk about it. They will be entitled to regard themselves as having made a real contribution to the welfare of the country.
– The honorable senator is not boasting about the points that he mentioned in his second-reading speech ?
– I cited those positive achievements of Labour with a good deal of pride, because they represented most effective action. Not one of the ten points that I mentioned has been controverted by any member of the Government in the course of the debate which has continued for approximately two weeks.
– That is not true.
– I invite honorable senators opposite to say what point has been contested. As the position has been worsened by the speech of the Minister for Social Services, I invite the Government to tell us its official attitude to the Labour party. Do honorable senators opposite say that we are Communist influenced?
– I am not worried about the honorable senator’s claim that I have worsened the position. It is time that the Opposition awoke to realities.
– It is time that honorable senators opposite realized that the Opposition is going a long way towards meeting the Government on this measure. The sole difference is now on methods. “We want democratic methods; the Government wants totalitarian methods, and we deny the Government the right to use such methods. That is the clear issue before the committee.
– I rise to repudiate Senator McKenna’s suggestion that there is anything totalitarian in this method. Because of the extravagant language that the honorable senator has used about the onus of proof provision, one is forced to question whether the Opposition’s demonstration, which is made apparently on the basis of some high principle, is not merely a lot of humbug. That is plainly what it gets down to. “We have demonstrated clearly that, in British law throughout the centuries, and in statutes of which the Labour party itself has approved, there are provisions not dissimilar to that which we are now seeking to enact in this measure. For example, as the committee has already been reminded, there was on our statute-book during the whole eight years of Labour’s term of office, a section of the Crimes Act dealing with unlawful organizations. That section requires an organization to show cause why it should not be “ declared “. In other words, the onus of proof is on the organization.
– Then why does the Government need this bill?
– The bill is necessary to deal with the Communists. I thought that the Opposition understood that, and approved it. As I have said, the section of the Crimes Act dealing with unlawful organizations was on our statutebook all the time Labour held office. “We have been told by Senator McKenna that it is a totalitarian piece of legislation; but it is a totalitarian piece of legislation that successive Labour governments, which had a majority in both Houses of the Parliament, left on the statute-book.
Therefore, we consider that we are entitled to ask why it is that this issue should be pressed so hard and so far to protect people who, if the Opposition accepts the preamble of this bill, as I understand it does, are carrying on subversive activities in this country. Let ‘me bring the argument a little bit more up-to-date. There is talk of totalitarian legislation. To test the sincerity of the Opposition’s attitude to this provision, I shall refer to legislation that a Labour government recently introduced into a State legislature, namely, the Bread Manufacture and Delivery Bill 1950 which has been passed through the Legislative Assembly of New South “Wales. That bill does not deal with Communists, but with bread manufacturers, and it provides that a person who i3 guilty of an offence against the act shall be liable to a penalty not exceeding £100 or imprisonment for a term not exceeding six months.
– Guilty of an offence?
– Yes. I advise the honorable senator to be careful before interjecting. I invite the committee to listen to the next part of this Labour legislation -
Where a person convicted of an offence against this part of this Act is a body corporate, every .person who at the time of the commission of the offence was a director or officer of the body corporate shall be deemed to have committed the like offence and be liable to the pecuniary penalty or imprisonment by this Part of this Act for such offence accordingly, unless he proves -
Notice where the onus lies ! - that the offence was committed without his knowledge or that he used all due diligence to prevent the commission of the offence.
– That is not an analogy.
– I am inclined to agree if the honorable senator means .that in one case a man is made guilty of a penal offence with the onus of proof thrown upon him.
– Read the whole bill.
– It is no use talking about reading the whole bill. In the course of this debate the Labour party is maintaining that the principle that the onus of proof should rest on the Crown must be maintained at all costs. If that is not what the Opposition is saying, I suggest that I am justified in expressing the view that there is a lot of humbug in what it is saying.
– That is a “ red herring “.
– There is no “red herring” about this. It is a fair test of the Opposition’s attitude to laws of this kind. Let us suppose that a company has been found guilty of an offence against the law. Then, according to the provision that I have read, the secretary of the company, an unfortunate person who had nothing more to do with the commission of the offence than to write up the minutes of a meeting, not only has the onus of proof thrown upon him, but also is unable to discharge it. He is guilty by statute because he had knowledge of the offence and he cannot prove that he did not have knowledge of it. The Labour party having enacted legislation of that kind, it is plain humbug for the Opposition in this chamber to say that it will not agree to this measure because it is contrary to the principles of British justice.
– “What is the offence ?
– I do not care what the offence is. I have cited that State legislation as a plain example of an instance in which the Labour party is prepared to throw the onus of proof on the person charged. In fact, it is prepared to go further than that; it is prepared to put that person in such a position that he is guilty of an offence, and in some cases he will find it impossible to disprove his guilt. “We are told that the onus of proof provision in this measure is totalitarian. All we are asking is that the officers of an organization should go into the witnessbox. They will know better than any one else the kind of activity that the organization is carrying on. As the King’s Ministers will have reached the conclusion that the continued existence of the organization would be prejudicial to the defence of the country, is it unreasonable to ask that officers of the organization shall go into the witness-box and say that they are not Communist dominated in any sense?
I referred yesterday to the well-known doctrine of recent possession with which lawyers are familiar. That is the doctrine that a person who is found in possession of stolen goods is called upon to account for them. “What is wrong with that? Senator McKenna tried to make us believe that the police would never lay such a charge against a man. He said that if the police did so and the man charged was one of his clients, he would go to the policeman and ask him to alter the charge to one of stealing the goods.
– Is that what the Attorney-General would do?
– No, I would not do that. If I were charged with that offence and the barrister who was acting for me proposed to ask the police to charge me with stealing, instead, I would dismiss him and try to find some one who would act more in my interests - that is, presuming that I was innocent. If that is Senator McKenna’s attitude, I can only conclude that he must always have acted for people with guilty minds. The Government does not propose to protect people who have guilty minds. The innocent person has nothing to fear from this legislation. I cannot help having suspicions. I can understand the suspicions of the Minister for Social Services (Senator Spooner) that so much concern should be expressed by the Labour party for the protection of whom?
– Of innocent people.
– Innocent persons have nothing to fear. If a man is innocent, all he needs to do is to go into the witness-box. He will have nothing to fear before a judge, and if he is telling the truth and is prepared to state what his affiliations have been and the nature of the organizations concerned, a declaration will be made in his favour. But the Government is not prepared to risk the security of this country by allowing suspected people to remain in a position where they can remain out of the witnessbox, throw the whole responsibility on the Government to prove affirmatively the case and go further, as the Labour party suggests, and put .a jury in the position where it has to discharge the functions which must properly be discharged by the King’s Ministers.
– The honorable senator was not concerned about security in 1941.
– We were very much concerned about it then, and we are concerned about it now. It is solely because of our concern for security that we press this proposal.
– The stage is now being reached where the truth about this legislation is emerging. Legislation to deal with Com- nuin.is.ts wa3 promised to the people of Australia before the general election last December. It was believed that the idea was to ban the Communist party, but the kernel of the legislation is being reached now. As pointed out by the Minister for Social Services (Senator Spooner), there will not be any trouble in finding the “ Commos “. They will give themselves up because they will be proud to be martyrs. That is probably true.
– When did I sar that?
– If the Minister himself did not say it another Minister or Senator Maher said it. One of the honorable senators on the Government side of the chamber said it.
– Pick another one. The honorable senator will find eventually that nobody made that remark.
– I think it will be found that somebody made it. That could be discovered by consulting Hansard. The present Government had to have something to line up with the banking bogy and the other bogies that it had collected prior to the general election. It required something to distort so that it could distract the minds of the electors, and it decided to promise that it would rid the country of the “Commos”. At least one honorable senator on the Government side has admitted that the “ Commos “ will be glad to give themselves up because they are proud to be Communists. If the Minister for Social Services did not say that, he said that the Labour party was linked with the Communist party, and that the Labour party was opposing this legislation as something in return for what the “ Commos “ had done for it. Does Senator Spooner deny that?
– I do not deny it.
– So, as this debate progresses, honorable senators are beginning to find out more of the reasons for this legislation. The Government realizes that the Labour party, which is a democratic party and believes in standing up for justice, would be forced to oppose some of the clauses of this bill. As other speakers have remarked, the Prime Minister (Mr. Menzies) said, when he broadcast his second-reading speech on this bill, that he would not amend the bill in any way.
– The right honorable gentleman said nothing of the kind.
– I leave it to the electors of this country who listened to the speech of the Prime Minister. I listened to it carefully, and my interpretation was that the right honorable gentleman would not amend this bill in any way.
– The Prime Minister said nothing of the kind.
– He said he would not alter a word or a line. He said he would not alter a dot and that he would accept no amendments at all to this legislation. At that time there was great talk of a double dissolution although I do not hear it now from the Government side of the chamber. Because the people of Australia were fortunate enough to have a Labour majority in this chamber, the Government had great ideas that the Opposition would be forced to oppose the bill, lock, stock and barrel, and that the electors would be misled into thinking that the Labour party was supporting the Communist party. As Senator McKenna has already said, the Labour party is proud of its activities against the Communist party over the last few years. Crocodile tears have been shed by the Minister for Social Services and the Attorney-General (Senator Spicer) over the security of this country, but I remind them that they had the opportunity to do what they now propose under this bill when they had a majority in both Houses of the Parliament in 1939 and 1940.
– We did, and the Labour Government released the Communists.
– I knew that’ the Attorney-General would take the bait. He said that the Labour party released the Communists. The war broke out in 1939 and every “ Commo “ in the country was totally opposed to the war. They said it was a capitalist war and that anybody who went to the war was fighting for the capitalists. The Government has been telling honorable senators that this is a most urgent measure, but from September, 1939, until October, 1941, a government of the same political colour had a majority in both Houses of the Parliament and could have sent the Communists to Russia or China or anywhere else, but it did nothing. The Communists were allowed to stay as they were. This bill is not designed to rid Australia of the Communist party. It was brought down in the belief that the Labour party would be humiliated because it would be forced to oppose the bill lock, stock and barrel, and the people would be led to believe that the Labour party was linked with the Communist party. The Labour party decided that, if the Government was sincere in its declared intention to ban the Communist party, no opposition would be offered. Repeatedly, since the debate on this bill began, we have asked the Government to submit legislation to ban the Communist party, and the Communist party only. I have no hesitation in making it public that there are organizations in this country just as subversive, and just as disloyal to the British flag, as are some of those about whom Government supporters have been talking. If the Government was sincere, it would bring those organizations into line with the Communist party under this legislation.
– What organizations?
– The Attorney-General knows them. The present Minister for Defence (Mr. Eric J. Harrison) is the leader of one of them. There is another member of this Parliament, who placed it on record in the course of a speech in the Legislative Assembly of Victoria that he was a fascist, and he stated why he was a fascist. I give him credit for having made the statement public. He also set forth his views in a series of articles that were published in the Melbourne Herald.
– Who is he ?
– He is Mr. Kent Hughes the honorable member for Chisholm in the House of Representatives.
– The honorable senator does not say that he is subversive ?
– I do not say that.
– Well, what does the honorable senator mean?
– I do not intend to take the bait that is being offered to me. Let the Attorney-General deny, if he can that, before the outbreak of World War II., the Melbourne Herald published articles that were supposed to be written by Mr. Kent Hughes, who then represented a constituency in the Victorian Legislative Assembly, and that in those articles he stated why he was a fascist.
– What has that to do with the subject now under discussion?
– There is a subversive element in this country, and the people of Australia should be reminded of the fact. Upon the return of the present Prime Minister (Mr. Menzies) from abroad in 1938-
– I rise to a point of order. This has nothing to do with the clause before the committee.
– The honorable senator must connect his remarks with the clause.
– I am telling the truth, and what I am saying has everything to do with the onus of proof provision in the bill.
– Is the honorable senator trying to prove that the honorable member for Chisholm is subversive ?
– If Senator Mattner thinks that the honorable member for Chisholm is subversive, let him go and tell the honorable member so. I am not expressing an opinion on the subject. On the return from overseas of the present Prime Minister, he said that the most successful country in the world at that time was Germany, and that its success was due-
– I rise to a point of order. What the honorable senator is saying has absolutely nothing to do with the clause under discussion, and he has made no attempt to link his remarks with the clause. Quite obviously, he is talking for the benefit of radio listeners.
– I must ask Senator Hendrickson to connect his remarks with clause 5.
– Give us that bit about the depression.
– The people whom the Minister represents never felt the effects of the depression. This legislation is the quick road back to another depression.
The TEMPORARY CHAIRMAN.The honorable senator must connect his remarks with the clause.
– It is not necessary to-day for trade union leaders to put up the same stern fight for their union members as they had to do during the depression. Conditions are better now, but that is not to say that bad conditions cannot return. If they should, this legislation willbe used- -
– The honorable senator is opposed to the bill?
– We had a parrot once, and I should not like to tell what we taught it to say. The Attorney-General is like a parrot, and keeps on repeating, “ Are you opposed to the bill ? “ We are totally opposed to the Communist party, and, so far as the Opposition is concerned, the Government can have immediately a bill designed to deal with the Communist party. However, it is not the intention of the Government to ban the Communist party. It never was its intention, and it never will be. The interests which this Government represents are responsible for the existence of the Communist party in Australia. Reference has been made in this debate to Senator Morrow. Let me tell honorable senators opposite that it was the preference votes of Liberal party supporters that elected Senator Morrow to this Senate. Those who are responsible for this legislation supported Hitler before the outbreak of the war. The present Prime Minister, who was Attorney-General in those days, said on his return to Australia from abroad that Germany was the most successful country in the world, and that its success was due to the great statesmanship of Herr Hitler. Australia, he said, would not prosper until there was a Hitler here. This bill has been introduced in the hope that it will place the people of Australia in the same position as were the people of Germany in 1939. The Opposition endorses the arguments put forward by Senator McKenna.
– I support the amendment. The arguments advanced by members of the Opposition on this clause reek of hypocrisy, cant and humbug. The attitude of the Opposition to the bill is typical of the attitude of the Labour Government to the Communist party during the eight years it was in office. It is the general opinion of the people that the Chifley Government yielded to the Communist party on almost every issue that was raised.
– That is a cowardly statement.
– It is not cowardly; it is the truth. I represent a State in which the people at the general election on the 10th December expressed very strongly what they thought of the Chifiey Government, and of its weakness in the face of Communist threats. If there were a double dissolution of the Parliament to-morrow, I should be glad to fight the election on the issue of the Labour party’s attitude towards communism. Indeed, I should be quite happy to see a double dissolution. Members of the Opposition have said that the parties which support the present Government triumphed at the last election by raising bogies. They imply that the people had not the gumption and sense to analyse the situation for themselves. As a matter of fact, the people made up their minds about the issues that were placed before them, and that is why the present Government is in office. The Chifley Labour Government allowed the Communists to white-ant the Australian way of life, and to infiltrate the Labour movement. Ten
Dutch ships were held up in Queensland ports for ten months because-
– I rise to a point of order. What happened before the 10th December, or some time in 1884, has very little to do with clause 5, which is now before the committee.
The TEMPORARY CHAIRMAN I ask Senator Wood to connect his remarks with the clause.
– I am endeavouring to refute statements made by members of the Opposition. Senator Mc’Kenna said that the Opposition was in favour of banning the Communist party, and he declared that the Labour Government had done much during its term of office to check the activities of the Communists. I am trying to prove that the Labour Government did nothing of the kind. It allowed the Communist-ridden Waterside Workers Federation to take the foreign policy of the country out of the hands of the Government.
– I rise to a point of order. I cannot see what this has to do with the onus of proof provision in the bill. .
– Senator Wood said that he could connect his remarks with the clause, and I expect him to do so as soon as possible.
– The Opposition is contesting the vital provision of this bill, namely, the provision that places upon declared persons and organizations the onus of proof. This bill is a strong measure, designed to achieve an important end. Communists are the enemies of the country. They would undermine our democratic form of government and replace it with the system that operates in Russia. This legislation is intended to be a weapon with which to fight the Communists, and the vital feature of the bill is the onus of proof provision, the purpose of which is to compel the representatives of declared organizations to go into the witness-box. The Government gave way on some points in an effort to achieve unity of purpose between itself and the Opposition, but it will stand by the provision that the representatives of declared organizations must go into the witness-box if they would rid themselves of the onus of proof. Why should the
Opposition try to make it easy for Communists to escape the provisions of the bill? Members of the Opposition have been talking with their tongues in their cheeks when they say they are against the Communists. All their efforts are directed towards making it easy for the Communists to escape.
The people of Queensland are in no doubt about the antics of the Opposition on this onus of proof provision. Senator McKenna said that the newspapers of Australia were opposed to the- Government on the issue, but that is certainly not true of the Queensland newspapers. They are almost unanimous in condemning the tactics of the Opposition. It is clear that the Labour party has not the support of the press and the people in this matter. If honorable senators will examine the newspapers published in various parts of Queensland, they will be forced to admit that what I say is true. The average person is not interested in the technical details of this bill. All that he is concerned about is whether this Government has the courage to attempt to rid this country of Communists. If a double dissolution should occur, this bill will be a strong point in our favour. If the Labour party is sincere in its statements that it wants the Communist party to be suppressed, why does not it support the Government and allow the bill to be passed in a form that will enable that objective to be achieved?
Honorable senators opposite are not consistent. The branches of the Labour party in Charters Towers and Mount Morgan carried a resolution asking for the complete suppression of the Communist party. The resolution was endorsed by the executive of the party in Queensland. It was forwarded to the triennial conference of the party held in Canberra in 1948, but that conference side-stepped it and carried another resolution stating that it was in favour of free speech and free association.
– The resolution was rejected, not side-stepped.
– That is proof that the Labour party will not take a stand against the Communist party.
Let me return to the statement that the press of this country is with the
Opposition in relation to this bill. Townsville is situated in an area in which there was at one time a strong Communist element. The Townsville Bulletin stated recently that the bill in its present form is not strong enough to deal with communism. It said also that the bill was introduced three years too late.
The provisions relating to the onus of proof are more important than are any of the other provisions of the bill. They are vital provisions, and honorable senators opposite know that they are. Yet, despite that, the Opposition is prepared to attack the provisions, in order to make it easier for Communist organizations to escape the operation of the measure. Some legislation already upon the statute-book, including that relating to income tax and customs and excise, places the onus of proof upon accused persons.
– What is in the customs legislation?
– I am not concerned with what is in it. “ What Senator Hendrickson would like to know-
– Order ! The honorable senator should not reply to interjections.
– The National Emergency (Coal Strike) Act, sponsored by the Chifley Government, adopted the averment principle and the principle of placing the onus of proof upon an accused. It was also retrospective in its operation. The right honorable member for Macquarie (Mr. Chifley) and’ the right honorable member for Barton (Dr. Evatt) were responsible for that measure. If they are to be consistent, how can they oppose these provisions? The National Emergency (Coal Strike) Bill was presented to the House of Representatives on the 29th June, 1949, by the right honorable member for Barton, who was then Attorney-General. In his second-reading speech, he referred to the powers given to the Registrar of the Commonwealth Arbitration Court, based on the Registrar’s opinion. He then referred to clause 11 of the measure and stated that it laid down a principle which was well recognized in legislation of that character. That clause was as follows : -
Where an organization has committed an offence against this Act, every person who, at the time of the commission of the offence, was a member of the committee of management, or an officer, of the organization or of a branch of the organization shall be deemed to be guilty of the offence, unless he proves that the offence was committed without his knowledge, or that he used all due diligence to prevent the commission of the offence, and shall, upon conviction, be punishable by a line not exceeding One hundred pounds or imprisonment for a term not exceeding six mouths, or both.
In that measure, the onus of proof was placed upon the accused.
– By a Labour government.
– By the Chifley Government, which was defeated a few months after the bill was passed. The bill was supported in this chamber by a number of honorable’ senators opposite. If that principle was good enough for the purpose of dealing with the last general coal strike, it is good enough for the purpose of enabling this country to fight the menace of communism, which is possibly the greatest peril with which it has ever been faced within its own borders. 1 ask honorable senators opposite, who profess to be violently opposed to the provisions of this bill relating to the onus of proof, to cast their minds back a few years, when members of the Australia First Movement were pulled out of their beds in the middle of the night and thrown into gaol for eighteen months or longer. What chance were they given? Let us be consistent. The duty of the National Parliament is to pass legislation for the benefit of this country. This bill is designed to suppress the Communist party .and its satellite organizations in Australia. The acceptance of the Go,vernment’s proposals relating to the onus of proof will ensure that the ‘bill will achieve that objective. I support the amendment proposed by the Minister. I believe that the Government has gone as far as it can go to meet the objections of the Labour party, which, from the outset, have not been well founded.
– Order ! The honorable senator’s time has expired.
– This afternoon the Minister for Social .Services (Senator Spooner) became very disturbed, and did not address the committee in his usual tolerant manner. I regret that he adapted the attitude that he did adopt. The technique that is being used by Ministers and Government supporters is still to connect the Labour party with communism. The Minister for Social Services did not hesitate to say that if we did not agree to the speedy passage of this measure, we should be assisting the Communists. Every honorable senator opposite who has spoken in this debate has emphasized the great importance of this bill. I remind the Government that, although 35 amendments were foreshadowed, we have been discussing it for only a portion of seven days. The bill will affect the liberty of the people of this country and the normal processes of law.
It has been stated repeatedly by honorable senators opposite that the customs legislation makes provision for the onus of proof to be placed upon an accused person. There may be very good reasons why that should be done. The taxation legislation contains the same principle. The people represented by the Government parties continuously evade the payment of taxes, but the workers and salary earners of this country have their taxes deducted from their wages and salaries, and the taxation authorities know what they earn. For that reason, among others, there is a need for those provisions.
The Attorney-General stressed the fact that the Crimes Act also places the onus of proof upon an accused.The sections of that act to which he referred were sponsored by a government of the same political colour as the present Government. An examination of some of the sections of the act reveals that they are almost identical with some of the provisions of this bill. Section 30aa (1) of the Crimes Act states -
The Attorney-General may apply to the High Court or to the Supreme Court ofa State for an order calling upon any body of persons incorporated or unincorporated, to show cause why it should not be declared to be an unlawful association.
Section 30aa (3.) reads -
The provisions of Section thirtyr of this Act shall apply in relation to averments contained in the summons as if they were averments of the prosecutor in a prosecution for an offence under this Part.
Section 30r (1.) reads as follows : -
In any prosecution for an offence under this Part, or for an offence to which any provi sion of this Part is material, the averments of the prosecutor contained in the information or indictment shall be prima facie evidence of the matter or matters averred.
Section 30r (4.) reads -
This section shall not lessen or affect any onus of proof otherwise falling on the defendant.
Those provisions were placed upon the statute-book by a government of the same political colour as this Government. The Crimes Act could be used to combat the Communists. Indeed, during the last general election campaign, the present Prime Minister (Mr. Menzies) in his policy speech, said that if the present Government parties were returned it would be strengthened to enable the Government to deal with unlawful organizations, and he made special reference to the Communist party.
The Opposition is eager that the bill should be passed. “We do not wish to impede the efforts of the Government to crush or destroy the Communist party. We have agreed to the principle of the bill, but we are not prepared to give away the freedom and justice that is enjoyed in this country to-day.
There are plenty of ways of doing what the Government wants to do. I refer honorable senators to the suggestions made by Senator McKenna, who understands the legal aspects of this matter as well as does the Attorney-General. All honorable senators will doubtless agree that, from the legal point of view, we have learned much from the speeches delivered by the AttorneyGeneral and Senator McKenna. They presented their arguments fairly and in a manner that was of great benefit to the committee. The committee debate has been an education for me. I have tried to keep out of the debate, realizing that it was of a legal nature rather than an ordinary discussion. I desire that the best result shall flow from it. The Opposition has no desire whatever to delay the bill, but it has an obligation to the people of this country in the matter. Since the measure was introduced in another place, no less than 35 amendments have been moved. That fact alone is sufficient justification for the time that has been devoted by the Opposition to an examination of and debate on this bill.
– I should like to know whether Labour fought the onus of proof provision in the Crimes Act.
– Labour did not use the Crimes Aci;-
– It did not repeal the Crimes Act, either.
– I shall not discuss that aspect of the matter now. I have tried to state the position fairly from the point of view of tha Opposition. I repeat that the Opposition does not desire to delay the passage of the bill. The Minister for Social Services ignored and pushed aside in a very casual manner, as a matter of small importance and merely technical, the Opposition’s contentions in relation to the onus of proof provision. He displayed’ a very callous indifference to the Opposition’s desire that the firm principles of justice in this country should be preserved for the protection of the Australian people. I am not concerned about what is going to happen to the Communist party. It has never assisted me in an election campaign or in any other way. However, I am greatly concerned that innocent people may be caught in the net, which the Government has admitted is very wide. I point out that if a person living in a town with a population of 10,000 or 15,000 people was declared, it would be a serious matter for him. Even if he owned a home, and his children were attending a school in the town, he would be practically forced to move because every one in the town would know that he had been declared. He would be in a very much worse position than a declared person who was living in a suburb of a city. I point out that although an organization may be suspected, a member of that organization may not be a Communist. That is an aspect of the matter to which the Government should pay attention. I repeat that the Opposition does not intend to delay the passage of this measure any longer than necessary.
.- - Senator McKenna asked whether the Government considers that the Opposition is pro-Communist. I shall not make any personal reflection on any member of the Opposition where there is no evidence that that is so. However, in all the years that I have been a member of the Parliament, I have never before seen such a deplorable display of political humbug and sham-fighting as has been evidenced since this measure has been before the Senate. One honorable senator opposite, who had expressed views that were pro-Communist and antiBritish, was granted an extension of time to continue his address on behalf of the Communists in the Senate.
– I rise to order. I ask for the statement that an honorable senator on this side of the chamber was granted an extension of time by the Communists in the Senate to be withdrawn.
– I was amazed that the Opposition in this chamber, knowing the urgency of this bill, was prepared to grant Senator Morrow an hour and a half to express views that were pro-Communist and anti-British.
– The Minister’s remarks were a reflection upon a vote of the Senate. I therefore ask that he withdraw them. Standing Order 415 provides -
No Senator shall reflect upon any Vote of the Senate, except for the purpose of moving that such Vote be rescinded.
– In deference to the ruling of the Chair that my remark was a reflection on a vote of the Senate, I withdraw it. Although the Senate has been in session for almost four months, not one bill has been passed. The Opposition has taken business out of the Government’s hands. In making that assertion I do not intend to cast any reflection on the members of the Opposition who have spoken on the various measures that have been before the chamber. Despite all of the criticism that honorable senators opposite have levelled against the Prime Minister (Mr. Menzies) and the Government, no honorable senator opposite has had the courage to say what he thinks about the Communists. In order to place a smoke-screen around this issue, legal technicalities have been debated for hours. The main reason for introducing this measure was to deal with the Communists employed in the coal, shipping, and transport industries, who have been holding the economy of this country to ransom for the past eight years. I believe that the majority of the members of the Labour party are against the Communists. However, the attitude of the Leader of the Opposition (Senator Ashley), who led the former Government in this chamber, has been spineless. It was characterized by a yellow streak during the eight years that he was in office.
– I rise to order. I ask that the remark that my attitude has been spineless and characterized by a yellow streak be withdrawn. I am prepared to meet the Minister for Fuel, Shipping and Transport outside the precincts of the Parliament at any time.
– I ask the Minister to withdraw the remark complained of.
– I withdraw the remark. The members of the Opposition will have to answer for what they have done. I am concerned not about legal technicalities, but about things that have been done in this chamber in relation to the departments that I administer.
– The Minister has done no more than talk about things since he has held his present portfolios.
– I remind the Leader of the Opposition that when the Menzies Government was previously in office it banned the Communists because they were anti-British, and there was evidence that they were traitors to this country. It is on record that Labour removed that ban in December, 1942.
– How does the Minister know that?
– Honorable senators will recollect that Ratliff and Thomas were released from gaol by the Labour Government. The then Attorney-General (Dr. Evatt), who once graced the High Court Bench, did not have sufficient courage to enforce the law against the Communists when they defied the Prime Minister of the day, the late Mr. John Curtin. The late Judge O’Mara-
– The Minister should connect his remarkswith the onus of proof clause.
– I do not criticize the members of the Opposition, although I believe that I have a perfect right to show that they lack courage. By their attitude in this chamber they have shown that they are afraid of the Communists politically. If that were not so they would have been prepared to tell the people of this country what they thought of the Communists, and to what extent they were prepared to assist the Government. Up to date they have not done that.We all know the importance of the transport and shipping industries. Yet it can be proved beyond doubt that two men that the present Leader of the Opposition appointed to the Stevedoring Industry Commission when he was in office, did more to bring about losses in those spheres than did any one or anything else. To-day, while the Opposition is fiddling over legal technicalities, Mr. Healy, Mr. Roach, and others of their ilk are forcing thousands of waterside workers to stop work to protest against the measure that is before the Senate. If honorable senators opposite had the courage and desire to do the right thing they would have ensured the passage of this measure weeks ago, so that the Government could take appropriate action against the Communists.
– The Government was not game to introduce this measure earlier in the session.
– I am concerned with the bill rather than side issues.
– I am concerned with the clause.
– In addition to the trouble on the waterfront to which I have referred, Mr. IdrisWilliams, president of the miners’ federation, has threatened that the coal-miners of this country will be called out on strike on Monday next as a protest against this bill. Has any member of the Opposition the courage to say what he thinks of that attitude? I remind the Leader of the Opposition that although shipping freights were good and there was plenty of cargo offering, in 1947, 1948, and 1949, the ships operated by the Commonwealth made a loss of £7,000,000.
– What has that to do with the clause?
– It has a lot to do with the clause. This bill will enable the Government to deal with people who are disrupting industry and causing much trouble to our economy. I urge the Opposition to come out in the open and get behind the Government in its attempt to rid the community of the Communist menace, which has done more than anything else to retard progress and take value out of the £1.
– The Minister for Fuel, Shipping and Transport (Senator McLeay) has just given an exhibition of the Government’s approach to the matter covered by the clause under discussion. We want to know the real reason for the viciousness of the provisions of the clause. Spokesmen for the Government who have taken part in the debate on the clause have not dealt with its provisions. Senator Wood, in the course of his remarks, roamed all over the subject of communism without dealing specifically with the clause. The Minister for Fuel, Shipping and Transport has just taken the opportunity to make a lot of unsubstantiated allegations and did not refer at all to the clause itself. The Opposition has already said that it is eager to pass the bill, and it lias not objected to clauses 1 to 4, which deal with the Communist party itself. We have not obstructed the Government in any way. We have made our stand on one point, which is that the rule of law must not bc abrogated. The attempt made by the Government to introduce such an arbitrary provision as that contained in the clause under discussion is without parallel unless we refer to nazi Germany or contemporary Russia. Let ns examine the provisions of the clause. First of all, it will enable the Government, to nominate a. citizen, without trial, as a Communist or a subversive agent or as one whose activities are opposed to the national interests. No other British country has attempted to enact legislation by which its government will become the accuser, the judge and the executioner of its subjects. Legislation directed against subversive activities usually provides that the government shall formulate the charge against a suspected person, but the actual matter of his guilt, and his punishment, if he is found guilty, is the prerogative of the courts. Even the AttorneyGeneral (iSenator Spicer), when referring to trial by jury and the need for the Crown to prove its case, described those safeguards as cant and humbug. I remind the Minister that the anti-Labour parties told the people during the last election campaign, only a few months ago, that they had a great regard for the liberties of the people. The attitude which they have adopted, under which no specific charge will be made against a person who is declared, and no penalty in the form in which we ordinarily understand that term is provided, reminds me of the attitude sometimes adopted by State industrial authorities. In imposing a penalty where a conviction might afford a sound ground of appeal, the authorities fix only a nominal penalty in order t(> circumvent the appeal provisions of the legislation under which they operate. In that way those authorities deprive the workers of their right of appeal to a higher court against the unfairness of the conviction. Members of the Government know very well that the declaration of an individual will be tantamount to a criminal charge being preferred against, him. However, they are not prepared to make subversive activities a criminal offence. They know that not only will Communists be affected by this legislation, but that persons other than Communists will also be caught up by this legislation. Ministers and supporters of the Government have deplored the fact that the Opposition has criticized this measure and have asserted that if we had solidly backed the Government in this matter the bill would have been passed long ago. I say deliberately that if we had supported this measure uncritically, and had passed it without dotting an “ i “ or crossing a “ t “ we should have been recreant to the trust reposed in us. The provisions of the measure had to be scrutinized carefully. Cant and humbug have been employed by honorable senators opposite in their references to trial by jury-
– I rise to order. The clause under discussion has nothing to do with trial by jury, which is dealt with in another provision of the bill.
– If the honorable senator connects his remarks with the clause under discussion he will be quite in order.
– My remarks are closely connected with the clause because the Crown should have to establish its case, irrespective of whether that case is tried before a judge or before a judge and jury. The argument put forward by the Opposition is that if the Government is to have the arbitrary right to declare an individual, who will be denied the advantage of an ordinary trial, it should at least have to establish its case. However, even if we passed the clause in its present form it would probably be ruled ultra vires the Constitution if challenged in the High Court. Section SO of the Constitution provides -
The trial on indictment of an offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
What is the Opposition battling for? Labour has fought and defeated the Communists in most of the trade unions in which they were established. After all, the Minister for Fuel, Shipping and Transport knows that he can take action immediately under the existing law against those whom he alleges are disrupting the shipping and waterfront industries. The only obstacle to his taking effective action is that he would have to prove his allegations before a court. The reason that he does not take action against the disruptive influences under the existing law is that he is either afraid or unable to carry out his duty.
Concerning the onus of proof provision, about which a great deal has been said in this debate, the position is that if the individual has to discharge the onus of proof he does not have a fair chance to establish his innocence. The reason for Labour pressing its objection to the onus of proof provision in the bill is not that Labour is concerned about the effect of that provision on the Communists, but because we realize that organizations and individuals which are not Com.munists will suffer. Because of the protracted fight which Labour has waged against the Communists in this country it knows the financial support which that organization possesses. If a Communist, or a Communist-controlled organization, is declared, ample funds will be forthcoming to engage legal assistance to take advantage of all the technicalities that can be raised to procure immunity. However, if some small organization is declared, or some innocent individual is affected by this legislation, it or he probably will have to suffer because funds will not be available to enable legal representation to be obtained to contest the legality of this villainous legislation. No government, other than a totalitarian government, would place in the hands of the Administration the right to say to a man, “We, the political party for the time being in charge of the country, declare you to be a subversive agent “. Such a charge against an individual is so serious that it ought to be made a criminal offence, and the individual charged should be able to go into the court and defend himself against a specific charge. And the charge of .being a Communist, or a person engaged in subversive activities, should be made an offence, within the meaning of .the term “ indictable offence “ in the Constitution so that an individual concerned can elect whether he shall be tried by a judge or by a judge and jury. I appeal to the Government even now not to treat Australian citizens in a manner different from the treatment accorded to Japanese war criminals or in a manner different from the treatment to which a criminal is entitled under our law. If the Government insists on this provision being embodied in the bill without amendment ‘ it will be giving away one of the greatest protections provided by British law for the individual. Because approximately 40 amendments have had to be introduced to the bill the Government may feel that by accepting the amendment to this clause moved by Senator McKenna it will be “losing face “. I remind it that a vital democratic principle is at stake, and I assure the Government that if it accepts the amendment moved by Senator McKenna it will not be accused by the Opposition of having “ lost face “ in doing so.
– In the course of the lengthy debate that has taken place on this clause I feel that some honorable senators have strayed somewhat from the provisions of the clause, which is a most important one. I shall refer first of all to the speech by the Minister for Fuel, Shipping and Transport (Senator McLeay), who is a responsible member of the Government. That speech, as Senator Cooke properly said, was an exhibition. It was the stock speech of the Minister, to which we have listened so often. Characteristically the speech was full of abuse, and it was not a pretty spectacle to witness the Minister, who had delivered such an abusive utterance, having to withdraw so many statements. The Minister and his colleague, the Minister for Social Services (Senator Spooner), are both responsible members of the Government, and they can be taken as fairly representing their colleagues in the Ministry. It is that Ministry which is asking the Opposition to confide to it the power to administer this clause. It includes men who are so intemperate in their utterance and so openly contemptuous of the Labour movement that it is audacious of it to ask the Opposition to entrust it with the power to declare an organization, or an individual. But not only do members of the Government seek that right; they also ask us to agree to their proposal to deny to an organization or an individual who may be affected by the bill the right of appeal to a court. The speeches made by the two Ministers whom I have designated were outrageous, as is also the clause, which would have the effect of denying to people declared access to the courts to protest against an unjust exercise of arbitrary power.
– I rise to order. Senator McKenna is not discussing the clause before the committee, which deals with the onus of proof.
– If the honorable senator connects his remarks with the clause he will be quite in order.
– I submit that since we are dealing with clause 5, the whole clause is subject to discussion, and that no portion of the clause to which I have adverted is beyond discussion. Because of the point that I am making, which is that the bill in its present form will enable the government of the day to declare any organization to be prejudicial to security and will deny to such an organization all right of access to the courts, I can appreciate the anxiety of the Attorney-General (Senator Spicer) to prevent me from continuing my remarks on that subject. The Minister attempted to justify his attitude on the ground that the national security might be prejudiced by the activities of subversive organizations. However, I remind the Senate that the Attorney-General is a colleague of the two Ministers who spoke this afternoon and asked the Senate to entrust them with the power to declare organizations and individuals. From the content and tone of their speeches there is no doubt whatever that they would declare me if they dared, and that they would even attempt to declare the Australian Labour party. Their whole demeanour is indicative of that intention.
Coming to the points raised by the Attorney-General and by Senator Wood, I say that the Government must be pushed to an extreme corner when it has to rely on the Bread Manufacture and Delivery Bill, which was introduced in the Parliament of New South Wales, to justify its request for the total power that the Parliament is asked to repose in it. Let us consider the provisions of the act which I have mentioned, and later I shall examine the National Emergency (Coal Strike) Act. The AttorneyGeneral failed to draw attention to some significant words at the beginning of the section of the Bread Manufacture and Delivery Act of New South Wales that he quoted. They were, if I remember them correctly, that where an offence has been committed by an organization-
– A body corporate.
– Bodies corporate and unincorporate are dealt with in the clause now before the committee. The section read by the Attorney-General provides that where a corporate body is guilty of an offence, certain action shall follow. The first point to be noted is that a charge has been levelled against the organization, the due processes of law have been followed, the organization has had an opportunity to face its accusers and to put its own witnesses into the witness box, and has been ultimately convicted. / Clearly a body corporate or unincorporate cannot do anything of itself. It can only act through its individual officers. The section quoted by the Attorney-General therefore provides in effect, that when, after the due processes of law have been followed, a body has been convicted of an offence, the senior officers of that organization shall be deemed to be guilty of that offence, unless they can show that they had no knowledge of it, or that they did their best to prevent the offence from being committed.
– That is putting the onus of proof on them is it not?
– Yes, but the difference is that an offence has been established in accordance with the due processes of the law before any liability falls on the officers. A corporation has no soul to be damned or body to be kicked. It cannot be imprisoned. In the absence of the provision in the Bread Manufacture and Delivery Bill, to which the Attorney-General referred, it might well be that an organization would be convicted of offence after offence, and would pay fine after fine, but would show a substantial profit on the transactions. The only way to stop that is to get at the possessors of the minds that are responsible for the commission of the offences.
– The poor unfortunate secretary !
– Nobody knows better than does the Attorney-General that the same principle applies throughout company law. Directors are responsible for the acts of companies. In the case that the honorable senator cited, an offence has already been committed. I appreciate, of course, that the AttorneyGeneral does not like this explanation of his argument. Then we come to the coal strike legislation of last year. Again the officers of an organization are held responsible for an offence committed by that organization unless they can prove that they knew nothing about the offence, or if they knew of it, that they did their best to prevent it from being committed by the organization. Each of those cases is clearly distinct from the provisions of the clause now under considera tion. An offence has already been established on the part of the organization by the due processes of the law before any liability falls upon the officers. That distinction is clear. Now I come back to the clause that is the subject-matter of the amendment now before the committee.
Sub-clause (4.) provides -
Upon the hearing of the application-
That is, the application by an organization - the declaration made by the Governor-General under sub-section (2.) of this section shall, insofar as it declares that the application is a body of persons to which this section applies, beprimafacie evidence that the application is such a body.
There we have the very reverse of the ordinary principle of law that an offence must be established by the accusers. This provision puts the accused organization in the witness-box to answer an allegation that it is one of the multitudinous bodies that fall within the ambit of sub-clause (1.). It does not know into what category it is alleged to fall. In relation to the second allegation, namely that its continued existence is prejudicial to the security of the country, the organization does not know whether the charge is based on the fact that ithas entertained somebody of “ red “ tendencies, or that its official’s have said something or done something positive - not to-day, but within the last twenty years. Nothing is alleged beyond the broad statement that its continued existence is prejudicial to security. Under those conditions the organization is asked to prove its innocence. Surely the very essence of justice is that it should know what is alleged against it, but that right is completely denied under this clause.
– It is alleged to be Communist dominated.
– The allegation will plainly be that it is a body of the type described in sub-clause (1.). The second allegation is far more serious. In fact there could be no more damaging allegation than to say that an organization is a body which, in effect, is traitorous to its country. No particulars of that allegation need be given. It is true that under the clause as amended by the Opposition, an organization will have a chance to get that allegation before a court, but under the Government’s original proposal, the allegation, serious as it is, and with its vast implication, would never have reached the court.
For the reasons that we have given yesterday and .to-day, because of the behaviour and the utterances of Ministers of the Crown, because of the great dangers involved in this departure- from the due processes of law, and the denying both to organizations and individuals of access to the ordinary courts of the land, the Opposition is in duty bound, in the interests of democracy, justice, decency and fair dealing, to oppose this, the Government’s third time presentation of this clause.
– The honorable senator knows that the Government will not accept the Opposition’s proposals.
– I am indeed sorry to hear that. I confess that the Opposition entertained the hope, that, after listening to the arguments that have been addressed to the committee by honorable senators on this side of the cb amber, and the inadequate and ineffective answers of Government spokesmen, the Government would decide to weigh the matter once more. It has already had three thoughts about it, and I had hoped that the Opposition would be able to induce it to have a fourth thought. “We have argued in an endeavour to convince the Government. If we have failed, that may be due to our own defects, but it is certainly not .due to the merits of the case that has been made against us. Even at this late stage I ask the Government to consider seriously the dangers to the community that are inherent in setting aside the courts and the processes of law and vesting in the Government the power of life and death over organizations. Serious as that may be, I am far less concerned about organizations than about individuals who are dealt with in a subsequent clause. However, summing up on behalf of the Opposition, I say that we are opposed to the sub-clauses that are included, in the amendment moved by the Government. If they are defeated, as 1 believe they will be, we shall move for the insertion of another sub-clause that will place the onus of proof where it belongs - on the accuser.
– “What Senator McKenna overlooked in his attempt to defend the Bread Manufacture and Delivery Bill of New South “Wales was that under that Labour legislation, an innocent person may be charged with an offence. That person may be a director or the secretary of a company. He may be completely innocent of any association with the conduct constituting the offence committed hy the corporation itself. If he is the secretary his only association with the offence may have been the writing of minutes into the minute-book, but because he has written those minutes, it will be claimed that he had knowledge of the offence, and according to the section of the bill that I read previously, he will be deemed to have committed a like offence. In other words, he will ‘be deemed to have committed the offence of which the body corporate .has been found guilty, and he will be deemed to be liable to the pecuniary penalty or the imprisonment provided for that offence unless he can prove that the offence was committed without his knowledge. The secretary will probably not be able to do that because, having written the minutes, he will have known what was going on. He had no control over his directors. They told him to do the job, but he will be guilty because he cannot prove that the offence was committed without his knowledge. He also cannot prove that he used all due diligence to prevent the commission of the offence. It may not be within the power of a secretary to exercise any sort of diligence in relation to the commission of an offence, but the onus is thrown on him to prove that he used all due diligence. That is a clear case of a parliament imposing the onus of proof on an accused person.
– Does the AttorneyGeneral believe that it is right?
– I am not arguing whether it is right or wrong. The Oppo<sition’s whole argument in the course of this debate has been that there is an immovable principle of British justice that must be observed. As I said earlier, the whole conception of the onus of proof has been torn from its context by the Labour party. I deny the suggestion that it is a principle of English law that, the onus of proof must always rest on the Crown. I have given instances to show that that is not so. Those cases have been taken not only from statutes, but also from common law. Therefore, I object to the idea that this principle must not be departed from. I repeat that it is frequently departed from when matters with which a court is concerned are peculiarly within the knowledge of the accused person. That is the justification for legislation of this type. It is, in fact, exactly the justification that Senator McKenna himself advances. He admitted that a provision of this type is usual in connexion with offences by a company. The onus of proof is placed upon the directors or the officers of the company, because they know of the circumstances in which the offence was committed. That is a matter peculiarly within their own knowledge. I suggest that that is so in relation to the clause’ with which we are now concerned. The question as to whether the declared organization is an organization which meets the description in the clause can be answered easily and readily by its officers without injustice. Do honorable senators on the opposite side mean to say that an innocent organization which was declared and which did not come within the meaning of any of these definitions would have any difficulty in convincing a judge that it was not an organization of that description? It has only to indicate what its activities were.
– Does the AttorneyGeneral know of any organization that would not come within the definitions?
– Plenty of them. I should say that it would be difficult to find a large number of organizations which did come within these descriptions. There would be very few indeed. As I understand the position, the definition of the type of organization has been accepted by the Labour party. Frankly, I find great difficulty in determining what the Labour party accepts in this bill and what it rejects, but as I understand the position, it raises no objection to the description of the type of organization which can be declared under this bill. Therefore, I assume that the attempt to define an organization is a fair one. The Government has been reasonable in that respect. It has not set out to bring within the ambit of the bill more organizations than should be brought within it. If it has, the Labour party has not demonstrated its disapproval of that particular provision and I say without any hesitation that an organization which is innocent of the charge will have no difficulty in putting its responsible officers into the box and clearing itself.
Senator Large interjecting,
– Do honorable senators mean to tell me that if Senator Large were declared under this bill - and God forbid that he should be - he would have the slightest difficulty in going into the box and saying, “ Of course I am not one of these people. I have never been associated with them “.
– I have been a union representative for more than 30 years, and I would have difficulty in proving my innocence.
– The honorable senator would have no difficulty at all. No person except those who will approach the court with a guilty conscience will have any difficulty. The person who will have difficulty in proving his innocence will be the person who does not want to go into the box and be cross-examined about his activities. Because he does not want to be subjected to that ordeal, he wants to have the measure in such a form that the Government will have to prove its case to the hilt. The position which Opposition members are seeking to maintain is completely impossible. Consider it in relation to a man in the Public Service who has been declared by the King’s Ministers to be a Communist. Assume that the King’s Ministers had also declared that the man’s activities were prejudicial to the defence of this country.
– Why should the Government not have to prove it ?
– The honorable senator is prepared to maintain that attitude. He believes that a person whose activities are prejudicial to the defence of the Commonwealth must remain in the Commonwealth Public Service unless the Ministers can establish the case to a jury beyond reasonable doubt.
– I have made no such assertion.
– That is absolute nonsense. Is it suggested that the man must stay in his position in the Public Service where he could do irreparable damage to the country? The Opposition suggests that he should remain in that position unless the Government can establish that he is actually the type of person they claim him to be and prove it beyond all reasonable doubt. I suggest that that is an impossibility, and it is just as well for the safety of the people of this country that the treasury bench is not occupied to-day by people who hold those views.
Amendment (by Senator Spicer) agreed to-
That the words proposed to be left out be left out.
Question put -
That the words proposed to be inserted (Senator Spicer’s amendment) be inserted.
The committee divided. (The Chairman - Senator T. M. Nicholls.)
AYES: 21
NOES: 31
Majority 10
AYES
NOES
Question so resolved in the negative.
Sitting suspended from 5.55 to 8 p.m.
– On behalf of the Opposition, I move -
That the following sub-clauses be added: - “ (4.) If, upon the hearing, the Commonwealth satisfies the court -
that the applicant is a body to which this section applies; and
that the continued existence of the body would be prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws of the Commonwealth, the court shall dismiss the application, and the declaration shall, subject to this section, remain in force. “ (5.) If the Commonwealth does not so satisfy the court, the court shall set aside the declaration. “ (6.) The applicant or the Commonwealth, as the case may be, may, within twenty-one days after the decision of a court under subsection (4.) or (5.) of this section, appeal against the decision -
where the application was made to the Supreme Court of a State - to the Full Court of that Supreme Court; or
where the application was made to the High Court or to the Supreme Court of a Territory of the Commonwealth - to the Full Court of the High Court, and the decision of the court on the appeal shall be final and conclusive.”.
Sub-clauses (4.) and (5.) of the amendment relate to matters that were discussed at length this afternoon, and I do not propose to go over the ground again. However, the amendment also introduces new matter. It seeks to concede the right of appeal to an organization whose application has been rejected by a court, and to concede the same right of appeal to the Commonwealth. Both parties, under the amendment, will enjoy full rights of appeal, if that right is exercised within 21 days. The present Prime Minister (Mr. Menzies), in his policy speech to the electors, said that the Communist party would be banned if he were returned to power, and he added -
Subject to appeal, the Attorney-General will be empowered to declare other bodies substantially Communist; to follow the party into any new form, and to attach illegality to that new association.
I emphasize that the words “ subject to appeal “ must mean what they say, and that there should be a full right of appeal.
– What does the honorable senator mean by a full right of appeal?
– I mean, among others things, appeal to a superior court from an inferior court. According to the bill as originally drawn, there was a very limited right of appeal. The words “ subject to appeal “ must not be limited in any way. They must be taken to mean what they say. In the Crimes Act, which was passed by the Parliament when a non-Labour government was in office, there is a provision which enables unlawful associations to be dissolved, and to have their property expropriated. In that act, provision is made for an appeal to the Full High Court of Australia. The amendment that I have just moved would bring this legislation into line with that provision in the Crimes Act.
– I propose to address a few remarks to the suggestion that the proposals contained in the bill as presented to the Parliament do not comply with the undertaking given by the Prime Minister (Mr. Menzies) in his policy speech before the general election. The Prime Minister said that, subject to appeal, the Attorney-General would be empowered to declare other bodies substantially Communist. The reference is clearly to an appeal from the AttorneyGeneral. This bill differs from the proposal in the policy-speech only to the extent that the Attorney-General under the bill, will not make the declaration. It is now provided that the declaration will be made by the Governor-General in Council. A body will not be declared under this clause except by the authority of the government of the day.
It is provided in the bill that a declaration, having been so made, the organization in respect of which it is made may appeal to the Supreme Court of a State, or to the High Court. That is quite clearly an appeal, and the provision complies in all respects with the undertaking given by the Prime Minister in his policyspeech. The matters upon which an appeal can arise will be essentially ques tions of fact. As Senator McKenna well knows, it is unusual to have an appeal in the full sense from a tribunal of fact to a higher tribunal. We have provided an appeal from the decision of the GovernorGeneral in Council to a judicial body. That, I suggest, is sufficient in the circumstances, when the only matter in question is one of fact. The appeal for which we have provided will be a complete appeal with respect to the question whether the body is substantially Communist. It is true that the proposal of the Government is more limited in its application than the declaration in the policy-speech in that, under the bill, it will be necessary for the GovernorGeneral in Council, not only to find that an organization is one of those referred to in clause 5, but also that its continued existence is detrimental to the defence of the Commonwealth, or the maintenance of the Constitution, or the laws of the Commonwealth.
Question put -
That the amendment (Senator McKenna’s) be agreed to.
The committee divided. (The Chairman - Senator T. M. Nicholls.)
AYES: 30
NOES: 20
Majority . . . . 10
AYES
NOES
Question so resolved in the affirmative.
Clause, as amended, agreed to.
Clause 6 - (2.) Where the body applies to the appropriate court to set aside the declaration, the body shall not bo dissolved upon the expiration of twenty-eight days after the publication of the declaration in the Gazette, but, if the court dismisses the application, the body shall, by force of this Act, be dissolved upon the day upon which the court dismisses the application.
– I move-
That sub-clause (2.) be left out, with a view to insert in lieu thereof the following sub-clause: - “ (2.) Where the body applies to a court to set aside the declaration, the body shall not be dissolved where the final result of the proceedings (including any appeal) is the setting aside of the declaration, or before the time specified in this sub-section, and the time of dissolution of a body which has made such an application but which does not succeed in having the declaration finally set aside shall be -
where the application is dismissed but the body does not, within a period of twenty-one days after the dismissal, appeal against the dismissal in accordance with the last preceding section - the expiration of that period; and
where an appeal under sub-section (6.) of the last preceding section by either party is decided against the body - the day on which the appeal is decided.”.
This amendment is purely formal. It arises from the decision of the committee to grant a right of appeal from the decision of the court of first instance. I do not propose to waste the time of the committee ‘by arguing in favour of the insertion of the proposed new sub-clause. I say at this stage that the Opposition will co-operate with the Government in endeavouring to conclude the committee debate this evening. In moving amendments that I regard as purely formal amendments, I shall not support them witharguments unless the matter is canvassed by the Government.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 7 - (1.) A person shall not knowingly - (2.) Nothing in this section prohibits an officer or member of an unlawful association from performing any act on its behalf which is reasonably necessary for the purposes of an application by the unlawful association to the appropriate court under section five of this Act.
– I move -
That, after sub-clause (1.), the following sub-clause be inserted: - “ (1a.) A person shall not, after the dissolution of an organization or a body of persons by this Act, knowingly -
do any act or thing which is calculated or intended to maintain that organization or body of persons in existence;
continue, or assume or pretend to continue, any of the activities of that organization or body; or
do any other act which assumes or pretends that that organization or body has not been dissolved.
Penalty: Imprisonment for five years.”.
The clause contains provisions relating to certain acts that may be performed by members of an unlawful association, as members of the association, after the formal declaration of the body. It was considered that clause 7 (1.), as at present drafted, was capable of the interpretation that it was applicable only between the time of formal declaration and final dissolution of the body after there had been an appeal to a court. In order to ensure that activities on behalf of a declared body will not be continued after it has been officially dissolved, it is proposed that the new sub-clause be inserted.
. - The Opposition does not object to the amendment. I note that the Government has adopted our suggestion that in citing offences the word “ knowingly “ should be included.
Amendment agreed to.
.- I move-
That, in sub-clause (2.), the words “by the unlawful association to the appropriate court”, be left out with a view to insert in lieu thereof the following words: - “or appeal by the unlawful association “.
This amendment is consequential upon a previous amendment providing for an appeal from the court of first instance.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 8 - (3.) If the appropriate court sets aside the declaration, all sales or dispositions of property, payments made and acts done by the receiver (or by a person acting under his authority) shall be valid but the property of the body shall revert to the body for its estate or interest therein on such terms and subject to such conditions, if any, as the court orders.
.- I move-
That sub-clause (3.) be left out, with a view to insert in lieu thereof the following subclause: - “ (3.) If-
the declaration is set aside by a court constituted by a single Justice or Judge and the time within which an appeal may be instituted has expired without an appeal being instituted, or an appeal has been dismissed; or
the declaration is set aside, on appeal, by the Full Court of the High Court or of a Supreme Court, all sales or dispositions of property, payments made and acts done ‘by the receiver (or by a person acting under his authority) shall be valid but the property of the body shall revert to the body for its estate or interest therein on such terms and subject to such conditions, if any, as the court by which the setting aside of the declaration is effected or confirmed orders.”.
This is a consequential amendment.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 9 - (1.) This section applies to any person -
who was, at any time after the specified date and before the date upon which an unlawful association is dissolved by this Act, a member or officer of that unlawful association; or
.- I move-
That paragraph (a) of sub-clause (1.) be left out with a view to insert in lieu thereof the following paragraph: - ” (a) who was, at any time after the specified date and before the date upon which the Australian Communist Party is dissolved by this Act, a member or officer of the Australian Communist Party; or”.
The clause, as now drafted, applies to any person who was, at any time after the specified date and before the date upon which an unlawful association is dissolved by this measure, a member or officer of that unlawful association, or who is, or was at any time after the specified date, a Communist. The amendment is designed to exclude from clause 9 (1.) the provision that the clause shall apply to a person who was a member of any unlawful organization. If the amendment be agreed to, the clause will apply to a person who was, at any time after the specified date and before the date upon which the Australian Communist party is dissolved by this measure, a member or officer of the Australian Communist party, or who is, or was at any time after the specified date, a Communist.
It will be recalled that when the bill was introduced some criticism was made of this clause, upon the ground that persons who were not in any sense Communists or members of the Communist party mightbe declared. It is true that, under this measure, an organization may be declared to be an illegal organization if it is under the management of Communists and in the other circumstances to which reference is made in clause 5. While some persons belonging to such an organization may be Communists, there may be others who although not Communists have been induced to join the organization in the belief that it is not subject to Communist influence. The desire of the Government is to reach persons who are Communists in the truest sense. The measure is not directed at any other persons in the community. We now propose that the operation of the clause shall be limited to members of the Australian Communist party and Communists within the meaning of the definition in the bill.
– The Opposition is pleased that its criticism of this clause has been listened to by the Government, which now recognizes the danger to which many innocent people would be subjected if the amendment were not made. The Opposition supports the amendment.
Before I proceed to a consideration of other amendments that will be moved to this clause, I want to deal with a preliminary point of great importance. This clause deals with the declaration of individuals. What will happen, under this provision, is that the Executive Government will declare an individual. In doing so, it will state, first, that he is a Communist, and secondly, that his activities are prejudicial to security or that he is likely to engage in activities prejudicial to security. Under the bill, an application to the court will be permitted, subject to limitations about which the Opposition will have something to say later. No application to a court will be permitted at all in respect of the very serious allegation that an individual is a danger to the security of his country. The Government has adopted the attitude that, having spoken upon that matter, its decision must stand and is not to be queried in the courts of the land or subjected to the ordinary processes of law.
There will be direct and indirect consequences of such a declaration. The direct consequences that are expressed in the bill are that a person who is declared may no longer hold office in the Public Service, in an authority established under the Commonwealth, or in a trade union engaged in a vital industry. The indirect consequences are that the gravest possible allegation is made against a citizen, his work has been denied to him, he has been branded as a leper in the community, he has been damned - and if the allegation be true, properly damned - socially and economically, and an odium will attach to him, and to every member of his family.
I want to remind the Government of what it said to the people on the 10th November, 1949, in relation to this matter. I shall quote from the policy speech that was delivered on behalf of the present Government parties by the present Prime Minister (Mr. Menzies). I invite the Senate to consider particularly the following paragraph of the right honorable gentleman’s policy speech : -
The laws with respect to sedition or other subversive activities willbe reviewed and strengthened. Conviction under such laws will disqualify from employment under the Crown or from office in a registered organization.
I emphasize the word “conviction”. Let us examine what was promised to the people of Australia by the then Opposition, which now forms the Government of this country.
– Will the honorable senator read the preceding paragraph?
– I shall do so with pleasure, because it reveals another departure in this bill from the right honorable gentleman’s policy speech. The preceding paragraph reads -
No person now a member of the Communist Party shall be employed or paid a fee by the Commonwealth ; nor shall any such person be eligible for any office in a registered industrial organization.
The use of the word “ now “ indicates that the right honorable gentleman meant that any person who was a Communist on the 10th November, 1949, would be debarred from such employment or eligibility. However, the bill before the Senate provides that any person who was a Communist on the 10th May, 1948, shall be so debarred.
– And who is engaged in subversive activities.
– A sentence of the next paragraph refers to laws then existing. It reads -
The laws with respect to sedition or other subversive activities will be reviewed and strengthened.
What review has been made on those laws? What strengthening of those laws has been attempted?
– None whatever.
– By interjection, Senator Sandford has supplied the correct answer. The existing laws have been neither strengthened nor looked at in accordance with the promise that was made by the Prime Minister. A few moments ago I emphasized the word “ conviction “ which occurred in the first paragraph that I quoted. Clearly, the Prime Minister meant - and every reasonable person who heard his policy speech understood him to mean - conviction after a due charge had been levelled. That is, after the person accused had been informed exactly of what was alleged against him.
– That has nothing to do with a Communist.
– The individuals to be barred were only people who had been declared.
– That is not right.
– The AttorneyGeneral will have his opportunity to put his point of view subsequently. I ask him to restrain himself whilst I am addressing the chamber. “ Conviction “ comes after presentation of the case to the court, and after the accused has exercised his right either to go into the witness-box and give evidence or to sit back and hear the case presented against him. It comes after trial by an impartial tribunal, with unlimited rights of appeal to superior courts. They were the only people, as individuals, who were to be declared, according to the joint policy speech, which was printed and circulated throughout Australia.
– That is quite false.
– The AttorneyGeneral will have an opportunity to deal with my contention. If he does not agree with my description of “conviction” hp. should furnish the Senate with his definition. I make the charge against the Government that, at the time that its supporters were sitting in Opposition, it had this outrageous process of declaration by the Executive in mind and did not tell the people, so it perpetrated a deliberate fraud upon the electors. Alternatively, if honorable gentlemen opposite did not have that in their minds, the Governmenthas committed a grave breach of trust: it has gone beyond the point its supporters told the people of Australia it would go. On behalf of the Opposition, and with complete and due deliberation, I say the Government has its choice of those alternatives. On behalf of the Opposition, I invite a responsible mem ber of the Government to answer my charge in this regard, before we proceed to deal with the detail of the clause.
– Although we have listened to a lot of humbug during this debate, I must say that I feel that the speech that we have just listened to excels in that respect. I shall examine the two paragraphs of the policy speech to which Senator McKenna has referred. Ear from the Government going further than the right honorable gentleman indicated that he would go if returned to office, it has not gone so far. Senator McKenna read the first paragraph only because I requested him to do so. Apparently he was not going to read it at all, and was quite prepared to mislead his listeners about what the policy speech contained. Tn order to refresh the minds of honorable senators on the contents the paragraph I shall read it again. It is as follows: -
No person now u member of the Communist party shall be employed or paid a fee by the Commonwealth; nor shall any such person be eligible for any office in a registered industrial organization.
The meaning of that paragraph is perfectly plain to anybody who understands English. It means - as the public understood it to mean - that no person who was a Communist at the time the policy speech was delivered would thereafter be employed in the government service by the Commonwealth,’ or be permitted to be an officer of a registered industrial organization. There is nothing whatever in that paragraph about conviction. Conviction was not associated with this proposition at all.
– The Minister should read the next paragraph.
– The next paragraph reads -
The laws with respect to sedition or other subversive activities will be reviewed and strengthened. Conviction under1 such laws will disqualify from employment under the the Crown or from office in .a registered organization.
That paragraph deals with a different aspect altogether. Its meaning is perfectly clear. Any person who suggests that it means anything other than its obvious meaning is talking plain humbug. Let us consider how far this promise has been carried out. We have not gone so far as to say that everybody who is a Communist shall be ineligible for employment in the government service or shall be ineligible to hold office in a registered industrial organization. We have placed a limitation on its application. Does the Labour party complain about this provision? We have said that the Communists will not be debarred from employment in the Public Service or from holding office in an industrial organization unless they are people with respect to whom the GovernorGeneral in Council is prepared to say, “ These people are engaged in activities which are prejudicial to the defence of the Commonwealth “ or “ These people are carrying on subversive activities “. If the Governor-General reaches that conclusion it would, of course, become necessary for those people to cease to hold their particular offices.
– The Minister is getting out of his depth.
– In my opinion Senator Sandford got out of his depth when he was elected to this chamber. I point out that the last paragraph that I cited deals not only with Communists, but also with any person engaged in subversive activities. The last two paragraphs taken together contemplate two classes of people who may be debarred from employment in the Public Service or from holding office in an industrial organization. Those classes are members of the Communist party, and persons who are convicted of offences under the laws relating to sedition.
– “ A rose by any other name “-
– The members of the Opposition can have it whichever way they like. If Senator McKenna had displayed as much ingenuity in attempting to get rid of the “ Commos “ in this community as he has in examining the relevant portions of the present Prime Minister’s policy speech, we should be much further advanced.
– Obviously Senator McKenna has got under the Attorney-General’s skin, because the Minister has not taken a trick.
– We have been told ad nauseam that if. in the opinion of the
King’s Ministers, a person’s activities are detrimental to the defence of the Commonwealth, it would be a terrible thing if he were dismissed from the government service.
– Not at all.
– Members of the Labour party have said consistently in the last three weeks that a person who in the opinion of the King’s Ministers-
– Is not the Minister placing undue emphasis on . the term “King’s Ministers”?
– This is a matter of importance. A person who, in the opinion of the King’s Ministers, is carrying on activities which are detrimental to the defence of Australia should, according to the Labour party, be allowed to remain in the government service unless the Government could prove beyond all reasonable doubt that he was carrying on subversive activities.
– That is not fair.
– It is perfectly fair. That is the proposition on which Labour insists. However, if Senator Hendrickson considers that that is not a fair statement of the proposition that honorable senators opposite have advanced, he should see to it that some of the amendments that his colleagues are moving are re-examined. He should also set to work to see that they adopt a commonsense approach to the matter. Let us take a simple example. Suppose that the Labour party-
– What about the Liberal party?
– I do not mind to which party my illustration applies. For the moment, however, I select the Labour party. Suppose that that party found that it had in its ranks a member of the Liberal party, who had joined it in order to get its secrets. What would members of the Labour party do? Would they kick him out, without any trial at all?
– What about the action of those members of the Liberal party who endorsed a Communist candidate for the seat df Waverley in the New South Wales elections? Would the AttorneyGeneral declare them?
– I cannot hear the Attorney-General’s speech.
– Order ! The Attorney-General is inviting interjections by replying to interjections. I suggest to him that he refrain from doing so.
– We are engaged in a very serious discussion. We are discussing one of the most important measures that has ever been introduced to the Parliament. Apparently, the only interest which members of the Australian Labour party can display in the discussion is to turn the Senate into a bear garden.
– That is what the Minister is trying to do.
– I am not doing anything of the sort. I am endeavouring to put forward a perfectly simple proposition. Suppose, as I have already said, that the Labour party is satisfied that it has within its ranks to-day a traitor-
Opposition members interjecting,
– I do not mind the interruptions. I have no doubt that the public who are listening to the broadcast of these proceedings will be interested to discover the way in which the attempt of a Minister to discuss this question h treated by the Opposition.
– If the Minister was being decent, he would receive a hearing, but he is being indecent.
– I am not being indecent. I have not used one indecent word, although I have been tempted to do so.
Senator Hendrickson interjecting,
– Order ! Senator Hendrickson will have an opportunity to take part in the debate later if he wishes, and there is no need for him to engage in a dialogue with the Minister across the floor of the chamber.
– I wish to put a perfectly decent proposition,, and I ask the Opposition to tell me the answer to it. Suppose the Labour party discovered in its ranks a. fifth-column of Communists, and the federal executive of the party was made aware of the fact. Would the executive invite them to appear before it, and say to them : “ We shall prove beyond all reasonable doubt that you are Communists, but if we cannot substantiate that allegation beyond all reasonable doubt, then you will be free to continue as members of the party.”?
– The AttorneyGeneral is talking about something that he does not understand.
– That comment comes oddly from one who displays so little intelligence as Senator Hendrickson displays. Reverting to the proposition that T was putting before the committee, I say quite emphatically that if the Labour party is to continue its activities against Communists, and is to prevent Communists from remaining in the Labour movement, the party cannot be hamstrung in its efforts to remove them by insisting that the known Communists shall be proved beyond all reasonable doubt to be, in fact, Communists. If the party were to insist on such proof being furnished, it would not be long before the people of Australia began to think that there were more Communists in the Labour party than there should be.
.- The Attorney-General (Senator Spicer) has endeavoured, by a very devious, involved and specious argument, to meet the position that I posed for his Government when I accused it of having committed either a deliberate fraud on the electors on the 10th December last, or a grave breach of faith since then. The Attorney-General has referred to two portions of the policy speech delivered by the present Prime Minister (Mr. Menzies) during the last election campaign. Perhaps we should have a look at the entire section of the speech delivered by the right honorable gentleman. Under the heading, “ Communism “, and the subheading “ Communism will be outlawed “, a paragraph appears, from which I shall quote only the first and the last sentences. The first sentence is -
The day has gone by for treating communism as a legitimate political philosophy.
The concluding sentence is -
These are far-reaching proposals, but halfhearted measures are no good, if, in the bitter conflict between the Communists and our decent people, the .people are to win.
From the beginning to the end that paragraph is directed against communism. It is clear, therefore, that the people understood that the Government intended to deal with the Communists, and E invite the Attorney-General to tell me where any other portion of that speech contains even the merest hint that individuals will be declared by the Government to be a danger to their country, and will be denied recourse to due processes of law. The Attorney-General issued some challenges to the Opposition. In turn, I challenge him to point to any statement in the entire policy speech of the Prime Minister which furnished the faintest hint of the Government’s intention to introduce such a measure as the one under discussion.
I shall now reply to some of the points made by the Attorney-General. He said, in effect, “ The King’s Ministers, in their uncontrolled discretion, decide that a man is a danger to society, and that he should not remain in the midst of the public “. He claimed that the Government has a perfect right in the public interests, to remove such a person. But even if the government of the day comes to the conclusion that an individual is a danger to the security of the country, it is far too dangerous to permit the Cabinet to deal with him, irrespective of whether the members of Cabinet are the King’s Ministers, or any other kind of Ministers. There ia no need to resort to such an extraordinary procedure, because the customary procedure in the ordinary courts of the land is available to the Government, and there will not be the slightest difficulty in implementing that procedure. I remind the AttorneyGeneral of the statement that he made in the Senate on the 30th May last, when he said - rs it seriously suggested that any responsible Minister of the Crown who has taken the oath of office would ask the GovernorGeneral to make such a solemn declaration, unless he had the soundest possible evidence to support his request? Every time a Minister acts in relation to a serious matter of this kind; hu must be satisfied that there is on his files amongst the material on which he acts all the evidence that he requires to support his signature.
If the Attorney-General will not declare anybody unless he has all the evidence necessary to support the declaration, what is his fear of the courts of the land and of the ordinary processes of law ? Honorable senators will realize that if a government can name an individual, damn him, and deny him recourse to the courts, members of the Australian community will be receiving the same kind of treatment as that meted out to people in the Communistdominated Balkan States? The whole rule of law, that a person shall not suffer in his person, goods or reputation except by due process of law, will be thrown overboard if the Government gets its way in this matter. Let me remind the committee that the present Government, which proposes to embark upon this course, consists of members of the anti-Labour parties, who have talked incessantly on freedom in the community. Now they propose to meet one evil with a greater and more pernicious evil.
The Attorney-General invited a representative member of the Opposition to say what would happen if a fifth-columnist were found in the ranks of the Labour party. Senator Hendrickson gave him the answer, which I will amplify. If such an individual were detected, he would be charged before the executive of the party.
– That is not what happened in New South Wales recently.
– That was purely a domestic matter, and I am now dealing with an instance where a charge is preferred against an individual. The member of the party who is charged would have a right of appeal, first to the Australian Labour party conference, and secondly to the central executive of the party. He would be supported by the courts, which would ensure that in the trial the rules of natural justice were applied. He would be given particulars of the charge made against him, an opportunity for a hearing, and the right to face his accusers-
– Did the honorable senator ever hear of the case Cameron v.
– I know that case perfectly well, and if the AttorneyGeneral wants me to deal with the happenings of the depression days when the dispute arose, I could devote the whole evening to a discussion of that matter. If the interest of the honorable senator in the processes of the Labour party is such that he might be induced to join our party and to place his brilliant intellect at our disposal, I should not consider it a waste of time to discuss the matter to which he has referred. However, the Government says that it is anxious to get the bill passed, and I shall not waste time. I conclude my present remarks with the comment that the Government has not in any way weakened, or answered, the charge that I made against it of having either committed deliberate fraud on the electors on the 10th December last, or of having broken faith with them since.
Senator McCALLUM (New South Wales [8.58]. - As a matter of fact, what happened in the Labour party in New South Wales flatly contradicts the assertions made by Senator McKenna. The annual conference of the New South Wales branch of the Australian Labour party-
– Order ! What has that to do with the clause?
– My remarks concern the statements just made by Senator McKenna.
– Senator McKenna’s remarks about the Labour party in New South Wales were made by way of interjection. The honorable senator must deal with the clause.
– The question at issue is whether the power to declare a person, which is the power sought by the Executive under the clause, is unreasonable. In an attempt to show that it was not unreasonable, the AttorneyGeneral (Senator Spicer) drew an analogy between the practice of the Labour party and the procedure proposed under this measure. According to the Attorney-General, the executive of the Australian Labour party has expelled members of that party without giving any rer.eon.
– I rise to order. The honorable senator is trying by devious means to evade the ruling that the Chair gave a few minutes ago.
– No point of order is involved.
– In a comment on clause 5, the Attorney-General (Senator Spicer) said that innocent people had nothing to fear from this legislation. It is quite clear from the stand that the Opposition has taken that, in our opinion, innocent people have much to fear under this legislation. For that reason, and I might say for that reason alone, the onus of proof provisions have been debated extensively this afternoon and to-night. I for one am confident that innocent persons will have a great deal to fear from the fact that, under this bill, individuals can be declared, their reputations tarnished, and their future placed in great jeopardy. Let us examine the mechanics of this clause. The Attorney-General said that an individual would be declared after the King’s Ministers had examined all the evidence at their disposal, and had made a recommendation to the Governor-General. On what evidence will the King’s Ministers decide that a person should be declared? The evidence will be the same as that on which the Prime Minister (Mr. Menzies) in his second-reading speech on this bill, listed certain individuals as Communists and stated the union office that they held. Fifty-four persons were named, no doubt upon information supplied by the security organization. The list was, probably, vetted and doublevetted before it was used by the Prime Minister, yet within a few hours, nine corrections had to be made. That list, which contained so many gross inaccuracies, was the work of the organization that is to be relied upon to compile evidence for the declarations that are to be made under this bill; yet the Attorney-General says that innocent people will have nothing to fear.’ History shows that a security service has to be closely watched if mistakes are to be avoided. When members of such a service are asked to produce proof of their statements, they are apt to shelter behind the word “ security “. In the early days of World War II., near panic was created when almost overnight our security service put thousands of people into internment camps in this country. Subsequently, it was found that many people had been interned without any concrete evidence to justify it. Some were interned because of a word or two overheard in a public bar. Others were the victims of business rivals. I. know of specific cases in which business people, seeing that things were going against them, complained anonymously about their competitors, and thus had them taken out of their way. It took a considerable time for many of those unfortunate internees to be returned to civil life. All those internments were made at the instigation of the security service that is part of the machinery of clause 9. Interesting things have happened ako in the immediate past. They all show on_ what a weak foundation this bill rests. I pay a compliment to the former Attorney-General (Dr. Evatt), who, upon assuming office during the war, quickly went through the list of 7,700 internees in this country, and secured the release of as many as possible, as rapidly as possible. He reduced the number to about 700, which was about the number that should have been interned in the first place. What has happened in the last four weeks in the security service upon which this legislation will depend? During the recent conference on South and South-East Asia at Admiralty House, in Sydney, despite all precautions, Communists gained admission to Admiralty House. When the Communists staged a big demonstration outside the Town Hall in Sydney one of the unfortunate people who were bashed by the police was a delegate who was late for the conference. A Communist pamphlet was even placed in the room of Mr. Malcolm MacDonald,. although there was supposed to be a complete security screen around the building. Therefore, one reason why we are not convinced that innocent people will have nothing to fear under this legislation, is that we understand the mechanics of this clause. We realize that, upon evidence being placed before the Attorney-General by the security service, a person will be declared by the publication of his name in the Gazette. His name will be blazoned throughout the Commonwealth. As Senator McKenna has said, he will be branded. In a small community particularly, what chance will such a person ever again have of earning a living for himself and his family? The AttorneyGeneral has asked what we would do about a man in the Public Service whose activities we considered to be prejudicial to the safety of the country. We found such men and dealt with them.
– What did the honorable senator do?
– We moved them or sacked them.
– Without a trial?
– Definitely, but we did not brand them. It was purely a matter between the man and his department. When the department that I administered was concerned, it was a matter between the man and myself. There was no publicity. The man could get a job elsewhere. The point that honorable senators opposite are continually overlooking is that, under this legislation, an offender’s name will be published for all to read. Every man and woman in Australia who knows him will say, “ Tom Jones has had his name in the Gazette. We must watch him. Do not trust him in future.” Jones’s reputation will be ruined and his chance of earning a livelihood seriously impaired. As I have said, during my term of administration in the Chifley Government, I felt justified in doing something about certain people, but nobody else knew what had been done. Several men were moved to different jobs in my department. Others were removed from the department altogether, or even from the Public Service; but I did not deny them the right to live and work - a right that will be denied to people declared under this legislation.
– Senator Armstrong’s statement calls for some comment. I remind the committee that the wholesale internments to which the honorable senator referred were made in time of war. In a national emergency, it is sometimes necessary for a government to take extreme measures.
Possibly, some people were wrongly interned, but the safety of the country was at stake. The situation to-day is quite different. We are at peace, and we are living in a democratic country. We have democratic elections every three years, and any government that was guilty of the- injustices that the Opposition alleges will be perpetrated under this legislation would soon be dealt with by the people. That is sufficient assurance that only people who should be declared will be so declared under this legislation. The Attorney-General (Senator Spicer) has made it clear that the Government does not expect a large number of declarations. This bill is directed at the enemies of Australia - the major Communists. The Government does not. seek to declare every tin-pot Communist. We all know that there are many people who, although they may vote for Communist candidates at election time, have no real appreciation of what communism means. On the other hand, there are the major Communists who are causing industrial turmoil throughout this country, and thus creating, hardships and difficulties for the people of Australia. That is why this clause is in its present form. The aim is to catch in the net the major members of this enemy organization, the Communist movement.
– There has been endless repetition during the debate on the onus of proof provisions of this measure. Much has been said about the injustice of those provisions. I am not very much concerned with what Labour did under the Crimes Act, or somebody else did under some other act. My concern is that this bill violates the principles of justice as we understand them, and as they have been understood for centuries. The Attorney-General (Senator Spicer) has referred repeatedly to the King’s Ministers. Apparently, the use of those words is supposed to silence us. His view is that if, in the opinion’ of the King’s Ministers, certain people are doing certain things, those people should be forthwith declared. If that argument were shown to an intelligent person, and he were asked to name the person who had advanced it, he would say, unhesitatingly, that it was propounded originally by
Louis XIV. of France when he said, “ The State- I am the State “. I object to the assumption that, in time of peace, Cabinet Ministers, can act as- if we were at war. The whole of the premises of this bill are fallacious. When the Prime Minister (Mr. Menzies) made his secondreading speech on this bill, he had everybody worked up into a state of hysteria, but when the facade was removed from this measure, we found that very little was left. The right honorable gentleman’s statement that we are only technically at peace is not true. If we were at war, the necessity for this legislation would disappear. In time of- war, we have our equivalent of the Defence of the Realm Act in the United Kingdom to rely on and it supersedes the ordinary process of law. The President of the United States of America, Mr. Truman, has said that we are further aw-ay from war than we have been for a long time. A similar view has been expressed by General Marshall, and Mr. Trygve Lie. The hysteria over this legislation is based upon the supposition that we are on the verge of war. I do not believe that. It is extraordinary that we should hear again and again the assertion that if His Majesty’s Ministers consider that such a situation exists, that is the end of the matter. Most people know who the Communists are. What is all this about? Why is it suggested that certain .people are working underground and in such a manner as to make it necessary to risk the liberty of the whole S,000,000 people of Australia? If the Communists are, in fact, conspiring, they can be charged with conspiracy and tried according to the process of law. Those who argue that this legislation is necessary in the interests of liberty, apparently are afraid of democracy. If this measure were confined to Communists, they would be isolated. As one who knows something about Communist activities in this country and also in other countries, I say that, this onus of proof provision is a godsend to the Communists because it brings in hundreds of thousands of people who have no time for communism at all. The most eminent lawyers in the world are against legislation of this kind. The AttorneyGeneral has denied that, but I can name quite a few. Opponents of the reversal of the onus of proof include the Bar Association of Johannesburg, the Prime Minister of Canada, and the Haldane Society of England. The only eminent lawyer who has expressed approval of this clause is Mr. Windeyer, K.C., a famous man in his time but now getting on in years. Why is it that nearly all legal men in every democratic country in the world are against it? Every Liberal newspaper in the world which is truly Liberal in the John Morley tradition., is against it, including the Manchester Guardian, Spectator, Observer, New York Times and the Christian Science Monitor. Why is it that South Africa, which has a tremendous racial problem, is the only other socalled democratic country in the world that has introduced into its legislation a proposal such as this one? What is the necessity for this clause? The country is not in a state of war. Great Britain has not introduced a measure of this kind and it is only 21 miles across the water from Europe.
– Is the honorable senator going to vote against it?
– Against this clause? Of course I am. Nobody has put forward any reason why it should be included. Senator McKenna has made out a good case. I have asked why this clause is necessary and have had no answer. Where are the mysterious men who can paralyse this country without being known? The Liberal Government is attempting to get at the Communists in the unions. It does not require onus of proof for that. They will not deny that they are Communists. Australia is supposed to be one of the most democratic countries in the world and it is disgraceful that the Government cannot deal with Communists without reverting to mediaeval laws. I suppose that the torture chamber will be introduced next.
The Government has said, “ We are all nice people. Leave it to us.” Every tyrant has said the same thing. Anybody who knows his history will recall that every bill that has been introduced to take away liberty has been introduced in the name of liberty. The anticombination laws which were introduced about 125 years ago were presented in the name of liberty. Men were transported to Botany Bay in the name of liberty. Madame Roland, a famous Frenchwoman, cried as she was being taken to the guillotine -
Oh, liberty, what crimes are committed in thy name.
Robespierre believed that what he did, he did for liberty. Stalin says that he is working in the name of liberty and Hitler claimed that it was for liberty that he introduced his regime. Torquemada and John Calvin worked on the same principle. Unless the Government can show the reason for this clause the only thing to do is to reject it. Not one single reason for it has been put forward. I do not believe that democracy is so weak that in order to fight communism it has to disregard all the principles of law, particularly the important principle that a person is innocent until he is proved guilty. I am not very much concerned with the legal aspect. I believe that economics are more important than laws. This bill hae been introduced for one purpose and the Government is not game to express it openly. Its design is to get at people other than Communists.
– That is quite false.
– That is what the Attorney-General says. One honorable senator on the Government side has said that there is no difference between the Labour party and the Communists. Another has said that the Labour party supporters are in with the Communists. It has been said that the Opposition is not in favour of passing this bill at all. Another honorable senator on the Government side has said that the Labour Government dealt with Communists during the coal strike last year more drastically than the .present Government would ever deal with them. The bill introduced by the Labour Government during the coal strike had clauses that were more drastic in their application than this one. The Government cannot have it both ways.
I am satisfied that if the Government were honest on this point, it would say that it does not. need the onus of proof clause to deal with the leading Communists. It knows Healy, Roach, Thornton and Thompson. Everybody knows the persons who allegedly are holding up industry. There is no need for the onus of proof clause to deal with them. The Government wants it in the bill to discipline the trade unions as a whole, so that every militant individual will be in fear of being declared. As a result weak individuals will be put in charge of the trade unions eventually and an end will be put to the present situation where the worker is more independent than he has ever been. I hope that this clause will be left out of the bill. When the measure was first introduced I said that if the Government really wanted the bill to be passed it should exclude this clause. That was when the Labour party agreed that it would support the main clauses of the bill. The Government should have said that it would leave out the onus of proof clause. The bill would then have been put into operation long ago, but the Opposition cannot be blamed for believing there are sinister motives behind the measure. Logic and evidence support that view. Honorable senators on this side of the chamber have given reasons why there is no need for the clause, and the Government has not given any reason why it should be included. There is ample law to deal with the Communists and if the Government .did not have sufficient power, it could have introduced other laws and kept the onus of proof out of this measure.
– I wish to give Senator Grant the reason why this clause is necessary. The whole of his speech was aimed, at minimizing the importance of this clause in order to lull people into a false sense of security. I shall read an extract from the report of the royal commission appointed to investigate Soviet spy activities in Canada. It is as follows : -
Essentially what has happened is the transplanting of a conspiratorial technique which was first developed in less fortunate countries to promote an underground struggle against tyranny, to a democratic society where it is singularly inappropriate.
The point is that the Government is attempting to get a democratic technique to meet this new kind of conspiracy. Senator Grant’s attempt to minimize the urgency of the matter and to say that the country is in a state of peace is singularly unfortunate and likely to lull people into a sense of false security. The country is in a state which may well be the precursor to war and the Government must be alive to that fact. It does not want to cry “ Peace, peace “ when there is no peace, but to take the proper precautions. I shall read a further extract from the report. It is as follows: -
Perhaps the most startling single aspect of the entire Fifth Column network is the uncanny success with which the Soviet agents were able to find Canadians who were willing to betray their country and to supply to agents of a foreign power secret information to which they had access in the course of their work, despite oaths of allegiance, of office, and of secrecy which they had taken.
Many of the Canadian public servants implicated in this espionage network were persons with an unusually high degree of education, and many were well regarded by those who worked with them in agencies and departments of the public service, as persons of marked ability and intelligence.
Then follows a list of names which I shall not read in full. The first was a member of the staff of McGill University, the second a graduate of McGill University, the third a professor of mathematics at Queen’s University, Kingston, Ontario, the fourth a graduate of McGill University, and so on. Canada is a country similar to Australia. Those Australians who met Canadians on active service found only superficial differences between the Canadians and themselves. If that is true regarding Canada there is a danger which must be met.
– They have no bill like this in Canada.
– I know. Honorable senators on the Opposition side have stated that they would deal summarily with the danger. Now they are protesting with uplifted hands against declaring a man and giving him a trial, but Senator Armstrong has said that he sacked men without trial. This is an old technique and honorable senators opposite are not improving it. I do not object to any discussion of details. I think it is good that this should be thrashed out and I do not think that it is a weakness on the Government’s’ part to accept amendments, but I object to statements which tend to minimize the danger and further that phoney peace movement which is part of the methods of the aggressor.
– First I want to deal with the suggestions made by the Attorney-General (Senator Spicer) that action may be taken if a person is believed by the King’s Ministers to be engaged or is likely to be engaged in activity prejudicial to the security and defence of the Commonwealth. In that statement there are two points. First, the Attorney-General referred to a person who is believed to be engaged in the activity he mentioned. This is a new technique. How is it to be ascertained which persons are likely to be engaged in activities prejudicial to the Commonwealth? I do not know how that can be discovered unless the Governmenthas some new instrument to look into a man’s brain. Secondly, it is said that certain activities are interfering with the security and the defence of the Commonwealth. Throughout this debate I have requested honorable senators on the Government side to bring forward evidence to show that the defence of the Commonwealth is being prejudiced. I have asked members of the Government to prove to this committee where there is a state of war, and where any body of individuals is working contrary to the welfare of the State. I have not received one reply from honorable senators on the Government side except Senator McCallum and Senator Wood who openly confessed that the cold war consisted of the industrial activities of certain trade unions of this country. They openly referred to the activities on the waterfront and suggested that such activities should be considered to be a cold war. Throughout history the trade unions on one side and the ship owners and other monopolists on the other side have been engaged in an industrial struggle. Both sides are fighting, the workers to better their conditions, and the employers to get as much as possible out of the hides of the workers. Now the Government is running to the rescue of the monopolists, and it proposes to help them to exploit the workers still more. That is what they call a cold war. Australia is not in a state of war. The High Court, when giving judgment in the petrol rationing case, said that the defence powers of the Commonwealth were running out. Now the Government has invoked the defence power to justify this legislation. The Government is trying to work up a state of hysteria by pretending that we -are on the verge of war. The only persons who are likely to involve Australia in war are the members of the present Government who, by sending men and aeroplanes to Malaya, are interfering in a country where they have no right to interfere.
– The honorable senator suggests that we should wait until the war comes to Australia.
-Thehonorable senator, and those who support him, will bring the war here soon enough. It would be much better for all of us if they would mind their own business. When the Attorney-General (Senator Spicer) was speaking, he skipped very lightly over sub-clause (1.) (b), which provides -
This section applies to any person -
who is, or was at any time after the specified date, a communist.
The definition of a Communist is as follows : - “ communist “ means a person who supports or advocates the objectives, policies, teachings, principles or practices of communism, as expounded by Marx and Lenin;
Marx was a philosopher and a scientist. He stood on the shoulders of political philosophers and scientists who had gone before him. His philosophy and his teachings are known throughout the world, and deal with every sphere of life. After all, political economy affects life in all its phases.
– Is this speech in favour of the bill?
– According to the definition of a Communist, as set out in the bill, practically anybody in Australia could be declared a Communist. Marx was a philosopher who based his philosophy on dialectical materialism, and practically every science coincides with that form of reasoning.
– I rise to a point of order. The Opposition has already agreed to the definition of “ communist “.
Therefore, I suggest that what Senator Morrow is now saying is not relevant.
– .Senator Morrow must confine his remarks to the clause under discussion.
– I am endeavouring to do so. The present situation is very grave. The freedom of the individual is at stake, and we should move very warily. We should not agree to dragnet clauses that could he made to apply to almost any one in the country. Under the definition of “ communist “, university lecturers, for instance, could be branded as Communists. We have been told that only the Labour party and the Communist party are against the bill. What about the many newspapers and such men as Professors Hartridge, Stout and Bolton, as well as 22 others, who signed a protest against the bill? Others were Professor Brown, and Professor R. D. Wright, a brother of Senator Wright. They expressed the opinion that if the bill had been .passed in its original form it would compel people to whisper behind closed doors. I object to the definition of “ communist “ as stated in the bill, and I register my protest here.
– Is the honorable senator going to vote against the clause?
– The Attorney- General would be better off if he minded his own business.
– I rise to a point of order. I understood Senator Morrow to say that Senator McCallum and I had said that a “ cold “ war was in progress.
The TEMPORARY CHAIRMAN.What is the honorable senator’s point of order ?
– I did not use the phrase.
The TEMPORARY CHAIRMAN.No point of order is involved. The honorable senator should have raised his objection when the remark was made.
.- It should be clearly stated that there is in progress a war that could be called cold, or hot or luke warm, according to the country involved, and it is coming close to Australia. There is a hot, fighting war in Vietnam. There is tension in
Europe, particularly in Berlin. No one knows when violence may break out there. Indeed, acts of violence have taken place, resulting in killings. In eastern Germany, a huge armed police force, complete with tanks, has been established by the Russians in order to bring pressure to bear on areas ‘ outside the Russian zone. In India and Burma, there is conflict, and in Malaya, which is in our near north, there is banditry and murder. It is the policy of Russia to expand.
The TEMPORARY CHAIRMAN.The honorable senator must connect his remarks with the clause.
– I am endeavouring to answer members of the Opposition, who have said that there is no “ cold “ war, and no threat of war of any kind. I am trying to show that a “ cold “ war is in progress, and that there is danger of actual war. I believe, and so do most people in Australia, that expansion is the policy of the Russian Government.
– I rise to order. Is Senator Gorton in order in discussing Russia? No one on this side of the chamber has mentioned Russia.
The TEMPORARY CHAIRMAN.Senator Gorton must connect his remarks with the clause under discussion.
– I am trying to show that it is the intention of the Russian leaders to give effect to their imperialist designs, and that they hope to do so, not by means of a hot war at this stage, but by weakening the democracies as much as possible by causing disruption in our industries, and by the lowering of our living standards. It has been stated by members of the Opposition that a man who is declared a Communist may appeal against the declaration, but may not appeal against the declaration that he is engaged in subversive activities. An Opposition amendment to alter that provision has been foreshadowed. Honorable senators opposite have spoken much of the alleged danger of innocent persons being branded as subversive, but T maintain that it is impossible for such a thing to happen. The only person who cannot have set aside a declaration that he is engaged in subversive activities, or is likely to be so engaged, is one who has been proved in a court of law to be a Communist. If the foreshadowed amendment were agreed to, it would be possible for a declared and proved Communist to continue to be an officer of a trade union or a public servant, if the Government failed to prove that he was engaged, or was likely to engage, in subversive activities. The effect would be to allow declared Communists to continue in jobs where they could do great damage to the Commonwealth.
– I desire to put on record my protest against the behaviour of members of the Opposition, and particularly of the three former Ministers, Senator Ashley, Senator McKenna, and Senator Armstrong. They know the purpose of this bill, and they know what was the attitude of the Labour Government towards Communists during the eight years the government of which they were members was in office. If the Opposition has its way, this bill will be rendered so innocuous as to become quite ineffective. I do not wish to make a personal attack upon any one, but I ask honorable senators to consider what has been the position in Australia during the last eight years. Communists have controlled the coal industry, the transport industry, and the iron and steel industry, and have dictated policy to the Government. I do not suggest that honorable senators opposite are in favour of communism, but I believe that the people of this country are convinced that the party to which they belong has never taken strong and effective action to deal with the Communist menace, which has done more to retard progress in this country than has any other factor. We witnessed the spectacle of Mr. Healy, a friend of the Leader of the Opposition (Senator Ashley), being appointed and reappointed to a government commission. He held that position for five years. To-day, while the committee is arguing about legal technicalities, Healy is holding up ships in Australian ports, at a time when sugar is rotting on Queensland wharfs and potatoes cannot be shipped from. Tasmania to the mainland.
– I rise to order. The Minister for Fuel, Shipping and Trans port (Senator McLeay) has made a personal attack upon me. I submit that his remarks have no relevance to the clause under discussion.
– I ask the Minister to connect his remarks with the amendment before the Chair.
– I have no wish to make a personal attack upon the Leader of the Opposition. I am pointing out that, although honorable senators opposite profess their desire to outlaw communism, the party to which they belong has, for some reason unknown to me and to the people of this country, never taken the strong action that it should have taken to combat communism.
The Government will not agree to this amendment. It is anxious that the Communist menace shall be dealt with effectively. I do not propose to discuss at length the effect upon our economy of the activities of the Communists in the coal industry, but I point out that to-day Communists in that industry are threatening to defy the law and the Government. The Leader of the Opposition knows as well as I do that for a period of years that has been the attitude adopted by the Communists who control the coal industry.
– I press my point of order. I submit that the Minister is not addressing himself to the clause. I do not know whether he realizes that the bill is now being considered in committee. Evidently, he prepared a second-reading speech that he was unable to deliver during the second-reading debate, and he is attempting to deliver it now.
– I ask the Minister to connect his remarks with the amendment before the Chair.
– If the Opposition gets its way on this onus of proof clause, the legislation will be as ineffective as the policy of the Labour party was for a period of years.
The TEMPORARY CHAIRMAN.The onus of proof clause is not under discussion at the present time.
– I rise to order. The committee is discussing clause 9.
– It is discussing an amendment to clause S3.
– It is true that there is an amendment before the Chair, but since I moved the amendment the discussion has extended all over clause 9. I submit that the whole of the clause is before the Chair at the moment.
– I am attempting to explain the main reason why the Government has introduced this bill. In 1947, 1,700,000 tons of coal were lost through strikes; in 1948 the loss was 2,000,000 tons; and in 1949, 2,800,000 tons. If this clause is watered down, those losses will continue.
– I rise to order. I submit that the Minister is still attempting to deliver a second-reading speech. He has referred to shipping and other matters that have no relevance to the clause.
The TEMPORARY CHAIRMAN.The Minister must connect his remarks with the clause.
– Let us have the courage to pass a bill that will be effective, and, having passed it, to act upon it. Honorable senators opposite say that they wish to prevent the Communists from wrecking our economy, but they are prepared to water down this vital clause to such a degree that the bill will not be effective. During the recent general coal strike, the Chifley Government took firm action against the Communists, and secured the enactment of the National Emergency (Coal Strike) Act 1949. That measure remained in force for only seven weeks, and was then repealed. Within a week of its repeal, the Communists were again speaking in the Domain, criticizing the Government, and laughing up their sleeves at the action that it had taken. Since then, they have continued to act in their usual way.
I place it on record that, in my opinion, the controversy on this clause and the indulgence by the Opposition in legal technicalities is designed to draw a red. herring across the trail. I can understand the attitude adopted by the friend of the “ Red Dean “, because he is an out-and-out Communist, but I cannot understand the attitude adopted by other members of the Opposition, who, although they say that they are anxious to combat communism, foi1 some unknown reason have not the courage to agree to a bill that will be an effective weapon against the Communists. Apparently, they wish to water down this clause to such a degree that this Government will be in the same position as that in which the Labour party was during the eight years it was in office.
– I rise to order. I understood the Minister to say that I was an out-and-out Communist. If he did say that, I ask that the statement be withdrawn, because it is a lie.
The TEMPORARY CHAIRMAN.The Minister did not mention the name of any honorable senator.
– I hope that the Chair will extend to me the latitude that it has extended to Government supporters to-night. The AttorneyGeneral (Senator Spicer) has said that the committee is dealing, not with the amendment before the Chair, but with the whole of clause 9. The Minister for Fuel, Shipping and Transport (Senator McLeay) has referred to matters that are entirely foreign to the clause. I believe that the Government is trying to stage a show in this chamber similar to that which is taking place in the Sydney Town Hall to-night. Liberals have been planted all over the Sydney Town Hall. They are causing a disturbance there, for which the Communists are being blamed. I have received a report of that meeting. It. is as follows : -
Mr. Menzies, the Prime Minister, said at the Town Hall to-night that Labour senators are holding up the Communist legislation, and they, the Labour senators, will be delighted with what is going on here to-night. “ Labour senators will be encouraged”, he said, “by u vote for the McGirr Government - the Labour Government here that does not know where it stands on communism “.
The disturbances in the Sydney Town Hall were staged by the Liberal party. What is happening there is reminiscent of the show that the Government staged here when this bill was introduced into the House of Representatives. Far from Labour senators holding up the bill, Ministers arc doing so. For the last half hour the Opposition has been endeavouring to secure a vote on this amendment, but it has received no assistance from the Government. Ministers have been put up to speak and block the passage of the bill. They have dealt with matters entirely foreign to the measure or the clause now under consideration. What relevance have shipping delays to this clause? A show has been staged in Sydney, and the Government is trying to do the same in this chamber. It is not becoming of responsible Ministers to take the action that they are taking here to-night.
Senator SPICER (Victoria - AttorneyGeneral) [9.55 . - I protest against the ill-founded suggestion that was made by the Lender of the Opposition (Senator Ashley). In this chamber to-night, the Labour party has adopted the attitude that the Minister who is temporarily in charge of the bill shall not be heard. I was yelled down when I endeavoured to address the, committee. The call has alternated from side to side of the chamber. Have we reached the stage when the only persons who are to be permitted to speak on this clause are members of the Opposition? The tactics that are being adopted by the Opposition are to howl down Government speakers and then to insist that honorable senators opposite shall be the only persons permitted to speak. When the Government puts up speakers, matching its speakers with those of the Opposition, it is told that it is obstructing its own bill. I suggest that no allegation could be more unreasonable than that.
– Did the AttorneyGeneral want the Minister for Fuel, Shipping and Transport to help him with the bill?
– I am very pleased to have the Minister help me with the bill. Apparently he got under the skin of the Leader of the Opposition and other honorable senators opposite.
– I had not intended to speak upon this clause until I witnessed the spectacle of two Government supporters deliberately holding up the business of the committee by protesting against the tactics of the Labour party. The Minister for Fuel. Shipping and Transport (Senator McLeay) spoke after another honorable senator opposite had spoken.
He gave as- his excuse the fact that he desired to register a protest. Then, in order to do so, he rambled all over Australia for ten or fifteen minutes. The Leader of the Opposition (Senator Ashley) has the right to direct the attention of the committee to the action taken by the Government to delay the passage of this bill. I register my protest against the delaying tactics of the Government.
Motion (by Senator Spicer) agreed to-
That the question be now put.
Amendment agreed to.
. - I move -
That, after sub-clause (2.), the following subclause be inserted: - “ (2a.) The Executive Council shall not advise the Governor-General to make a declaration under the last preceding sub-section unless the material upon which the advice is founded has first been considered by a committee consisting of the Solicitor-General, the Secretary to the Department of Defence, the Director-General of Security, and two other persons appointed by the Governor-General.”.
A similar amendment to clause 5 has already been agreed to by the committee.
Senator McKENNA (Tasmania) [9.59”. - The Opposition supports the amendment. We believe that it will improve the bill.
Amendment agreed to.
Clause consequentially amended.
. -I move-
That, in sub-clause (3.), the .words “on the ground that he is not a person to whom this section applies “ be left out.
To make the position clear to the Senate I shall read sub-clause (3.) -
A person in respect of whom a declaration is made under the last preceding sub-section may, within twenty-eight days after a publication of the declaration in the Gazette, apply to the High Court to set aside the declaration on the ground that he is not a person to whom this section applies.
This is one of the most vital clauses in the bill relating to individuals. I shall not develop at length the argument that I advanced on a similar clause as it affected organizations. I merely make the point briefly that the declaration by the Governor-General is first that the man is a Communist, and, secondly, is believed to be prejudicial to security, or is likely to be prejudicial to security. The clause as drawn, permits the individual who is declared to approach a court on the allegation that he is a Communist, but denies to him access to a court on the allegation that he is prejudicial to the security of this country. Remarks that I have made earlier to-night on a similar clause dealing with organizations conveyed very strongly to the Senate the fact that the Opposition regards it as being of the essence of our objection that in the case of such a serious allegation against an individual he should be entitled to have full access to a court. The matter should not be left in the hands of the Executive. In short, we oppose totalitarian action against the democratic processes of law and order, that is, the ordinary processes of courts and natural access to tribunals. I do not propose to elaborate our views further, unless the speeches of Government senators make it necessary for me to do so. I press strongly for the acceptance of the amendment.
Senator SPICER (Victoria - AttorneyGeneral) 1 10.3]. - I wish to make it clear to the Opposition that the amendment proposed is quite unacceptable to the Government, and will not be accepted, because a position would arise iu which the decisions of the Government in relation to acts necessary for the security of the Commonwealth would be subject to an appeal to bodies which; quite obviously, could not possess the information or be put in possession of all the information known to the Government. I do not propose to canvass again the arguments I have already advanced in relation to this matter. Questions which concern the security of the Commonwealth must necessarily be decided, in the final analysis, by those who are charged with the responsibility of maintaining the security and welfare of the people of this land - that is, the properly elected democratic government which happens to be in office at a particular time. We have incorporated in the bill since it was introduced in the House of Representatives an amendment to ensure that action will not be taken by the Government against any person or against any organization until the material upon which the action is based is examined by the committee that I referred to in the amendment that the committee passed a few moments ago. That will, I suggest, provide safeguards against arbitrary action, but the Government must accept responsibility for its actions. It could not allow its responsibility in a matter of such importance to be usurped by other bodies.
– I should be very pleased if I could accept the very nice manner in which the Attorney-General (Senator Spicer) has intimated to the committee that the Government cannot accept the proposed amendment because the allegations that would be made against certain people would be carefully sifted by the people who are charged with responsibility for security. Earlier to-night the Minister referred to the King’s Ministers-
– That is who I am referring to this time.
– Possibly he felt that he had reiterated the words “ King’s Ministers “ so frequently that he should avoid the term on this occasion. The clause before the committee has caused more public feeling against this bill than has any other clause, because it is here that a person may be adjudged to be a Communist, under the very wide definition that has been given to that term in the bill. One has great difficulty in actually denning a Communist. According to the definition in the bill, a Communist is a person who supports or advocates or gives expression to the doctrines of Marx and Lenin. As I pointed, out when addressing the Senate during the second-reading debate, the teachings of Marx are very varied and wide. During this debate the Government has taken great pains to emphasize the revolutionary phases of Marx’s work. Its supporters have carefully kept in the background the other philosophy that Marx expounded. Judging by the attitude of certain honorable senators on the Government side of the chamber, the Opposition is fully justified in endeavouring to have inserted into this bill a safeguard in relation to persons who have been -declared Communists, on information supplied by an informer or pimp who has been associated with them.
If this measure were intended to apply only to the few known people who have declared themselves Communists there would be no necessity for the cunning drag-net that has been incorporated in the various clauses. There are quite a number of people who are not publicly known as Communists. They do not participate in any subversive activity, and believe in communism as a philosophy that will bring about an alteration of the economic conditions which exist in various parts of the world. They may honestly believe that under the Constitution it is permissible for them to work within the framework of our laws and advocate communism. Under this bill they will be denied the opportunity to go to a court. The onus should be placed on the Commonwealth to prove that they are subversive citizens. The Government has endeavoured to pillory Senator Morrow, whose only crime has been that he has been a militant member of an industrial organization. Speeches by honorable senators on the Government side of the chamber to-day have implied that the Labour party contains Communists, notwithstanding the fact that protestations have been made and assurances given that no person could remain a member of that organization if he was known to be a Communist. Honorable senators opposite have to-day described Communists as people who may be advancing merely militant ideas. The information is supplied first by an informer-
– “What about a penalty for a false informer ?
– There should 1)0 provided a penalty for false informers, but the Government would not introduce such a clause into this bill.
– There is already an appropriate provision in the Crimes Act.
– The AttorneyGeneral suggested that this information must be of a secret nature, because it pomes to the Government secretly, is sifted, and then forms the basis of a recommendation to the GovernorGeneral that a person should be declared. I draw attention to the Government’s marked departure from its original attitude to this aspect of the matter. Doubtless the Government feels that it has gone a long way by deciding to institute a committee of members of the Government- the King’s Ministers whom we have heard so much about to-night.
– Presumably, they will be mentioned in the Sydney Town Hall to-night also.
– When the bill was introduced it provided that a peace officer or other person was to be entrusted with the task, and have the opportunity to declare a person or break into his home or office. But such has been the revulsion of public opinion against this bill, and the fight put up by the Opposition, that the Government has changed its tactics. Honorable senators will recollect that on a certain occasion when the Prime Minister (Mr. Menzies) went to Sydney - as he has done to-night - in a spirit of bravado he stated that no amendments would be accepted; that it was a matter of securing the passage of the whole bill. That was only a few weeks ago. However, it will be a different story to-night, in view of the amendments that have been inserted in the measure not only by the Government but also by the Opposition in this chamber. I think that the public of Australia considers1 that a measure of this kind should include a clause to protect decent citizens who may give expression to some of the ideas that have been expounded by Marx and Engels in the past. Why, the teachings of Marx are to be found in the platforms of the Liberal party and of the Australian Country party ! We also know that many of the reforms advocated by Marx have since became accomplished facts. Of course, honorable senators opposite keep repeating that the implementation of the doctrines preached by Marx necessitates violence. It is only to be expected that the owners of property will not allow it to be taken away from them without a struggle. Long before the Communist party came into existence, workers who talked about forming a Labour party were shot down, and those courageous individuals who joined the Labour party were stigmatized as agitators. To-day the tune is different. Now the anti-Labour forces say : “ Everything will be all right if we can get rid of the Communist party “. That is characteristic of the attitude displayed by the anti-Labour forces down the years. Whenever an attempt has been made to improve working conditions and the lives of the workers, the objection has been raised by their opponents that the proposal is antisocial and subversive. If members of the Government believe that the passage of this measure will prevent the upward struggle of the workers, they have another think coming. If they believe that by passing this bill they will sap the militant spirits of the trade unions, they do not realize the strength of the unions. As a member of a trade union-
– I rise to order. Senator Sheehan is not directing his remarks to the clause under discussion.
– Order! The honorable senator must connect his remarks with the bill.
– I was making the point that a person can be declared without being told the ground on which he has been declared. I have known young men who, because they advocated an improvement of their working conditions, were stigmatized as “ young Communists “. That is one of the big dangers of designating people as Communists, which this bill proposes to do. One of the tragedies of the industrial movement has been that whenever it has sought to effect an improvement in the workers’ conditions it has been attacked as being subversive. If this bill becomes law in its present form an informer from a trade union, or from somewhere else, can go to the Government, pour his poison into the ears of its members, and some unfortunate individual will be declared and denied any right of redress.
– Order ! The honorable senator’s time has expired.
Motion (by Senator McLeay) agreed to-
That the question be now put.
Question put -
That the words proposed to be left out (Senator McKenna’s amendment) be left out.
The committee divided. (The Chairman - Senator T. M. Nicholls.)
AYES: 30
NOES: 21
Majority . . . . 9
AYES
NOES
Question so resolved in the affirmative.
.- I move-
That sub-clauses (4.), (5.) and (6.) be left out, with a view to insert in lieu thereof the following new sub-clauses: - “ (4.) At the hearing of the application, the applicant shall begin; if he gives evidence in person, the burden shallbe upon the Commonwealth to prove that he is a person to whom this section applies, but, if he docs not give evidence in person, the burden shall he upon him to prove that he is not a person to whom this section applies. “ (5.) Upon the hearing of the application the declaration made by the Governor-General under sub-section (2.) of this section shall, in so far as it declares that the applicant is a person to whom this section applies, be prima facie evidence that the applicant is such a person.”.
The amendment is proposed by the Government to ensure that a person who is to have the advantage of the burden of proof resting on the Commonwealth shall himself go into the witness-box to give evidence. If he is prepared to do that, then the burden of proof will shift to the Commonwealth, and it will have the advantage of being able to cross-examine the applicant on his Communist affiliations. We have already discussed the principle involved in the debate on the previous clause, and I do not propose to say any more at this juncture.
– I oppose the amendment in the form presented by the Government. This is the third version of the clause relating to the onus of proof that has been placed before the Parliament. Bit by bit the Government has yielded to pressure from the Opposition, from a section of the press and from informed opinion outside the Parliament. I congratulate the Government on having so yielded to reasoned argument. However, it still obstinately insists upon refraining from bearing the full onus of proof. The AttorneyGeneral (Senator Spicer) has insisted that he will have all the evidence necessary before he “declares” a person; but he is not prepared to put that evidence before a court in the first instance. He also proposed, until the Opposition moved an amendment to the clause, that a person who had been “ declared “ on the ground that he was a Communist should have no right to appeal to the court against such a declaration, yet he was quite prepared to permit a person who was not a Communist but who had been. “ declared “ on the ground that his activities were prejudicial to national security to exercise all the rights enjoyed by ordinary members of the community. He was quite prepared to permit such a person to engage in any activity or employment in the Public Service and to accept office in a trade union. I could not imagine any more absurd position. To-night the Attorney-General has been most emphatic that the matter of whether or not a person who is alleged to be a Communist is engaging in activities prejudicial to the community’s interest is such a vital, hush-hush matter and one on which the national security depends that he dared not put before the court the facts relating to any such individual. Yet if the individual is not alleged to be a Communist he has no objection to him going to the courts. According to this bill, he is free to enter and remain in the Public Service, or to seek or retain union office. That is a completely illogical and absurd attitude for the Govern ment to adopt. There is no denying the fact, although the Attorney-General keeps on affirming otherwise, that this creates an offence. That is a proposition that no reasonable person will accept. Individuals will be branded publicly as a danger to the security of the the country. If that is not an allegation of treachery and treason, I do not know what is. I do not propose to develop this theme any further. The Opposition dealt with an exactly similar clause relating to organizations, and I shall not canvass again all the arguments that were advanced in connexion with that clause. The Government will realize from the stand that we have taken that we are opposed to its amendment. Subsequently, we shall move our own amendment. We think that individuals will be placed in a most invidious position under the clause as it now stands. They will simply be told that they are Communists and are a danger to the security of this country. They will then be faced with the task of proving their innocence. Where can such a person begin? He will not know what is alleged against him.
– He can go into the box and swear that he is not a Communist.
– Where will he begin with an allegation that he is prejudicial to the security of his country? Let us examine that matter for a moment since the Attorney-General has interjected and apparently wants a discussion on this point. I should like him to intimate what would be in his mind, as Attorney-General, when he declared that a person was “likely” to prejudice the security of this country.
– That will not be before the court.
– It is one of the declarations that can be made. If it is not to be before the court, why are the words in the bill? I invite the Attorney-General to answer that. The honorable gentleman leaves the words in the bill, and asks the committee to allow a Government which is not a judicial body in the ordinary sense of the word, to determine that a person is likely to be prejudicial to the security of the country. I have heard it said that the devil himself knoweth not the mind of man. I believe that to be very true. I am not intimately acquainted with the devil although I happen to share the same name - an honour that is also shared by another very distinguished person in this chamber. However, I say quite seriously, that nobody knows what is in the mind of a person until he translates his thoughts into action. Is the AttorneyGeneral working on the principle of the old song, “ There is a little bit of bad in every good little boy “ ? Does he believe that there must be some bad in everybody, and that he and his colleagues are the ones who should determine that? The Attorney-General said by interjection that nobody would be dealt with on an allegation that he was likely to prejudice the security of the country. Again I ask the honorable gentleman why he does not remove those words from the bill. If they are to remain, we can only assume that they have a purpose, and that purpose of course must negate the Attorney-General’s assurance.
– I did not give any such assurance.
– The honorable senator said that that matter would not go to a court.
– I meant that it would not go to a court because we would not accept the amendment that has just been made.
– That amendment was a decision of the committee and we must accept that decision. I take it that the words to which I have referred are to remain in the bill. That being so, will the Attorney-General tell us what he will have in mind when he and his Cabinet colleagues, behind the back of an individual, publish his name in the Gazette as being a person who is likely to be prejudicial to security?. Not only will that allegation be made, but also, again according to the Attorney-General, no court will be able to examine the truth of it. What an outrageous power for any government to seek -power to declare overnight in the Commonwealth Gazette that a member of this community is “ likely “ to be prejudicial to the security of this country! The Government that is responsible for that declaration will deny to the declared person any recourse to a court to determine the truth or falsity of the allegation. In short, the Government having spoken, the matter will be ended. Again I say that that is totalitarianism which we of the Labour party are fighting. Our view is that the ordinary democratic processes of law should be followed. Therefore, we shall oppose the insertion of the sub-clauses that the Government proposes to insert, and later, we shall move for the insertion of other sub-clauses that will place the onus of proof fairly where it belongs.
Amendment (by Senator Spicer) agreed to -
That the words proposed to be left out be left out.
Question put -
That the words proposed to be inserted (Senator Spicer’s amendment) be inserted.
The committee divided. (The Chairman -Senator T. M. Nicholls.)
AYES: 21
NOES: 29
Majority . . . .8
AYES
NOES
Question so resolved in the negative.
– In lieu of the sub-clauses that the committee has decided to omit,I move -
That, after sub-clause(3.), the following sub-clauses be inserted : - “ (4.) If, upon the hearing, the Commonweal th satisfies the court -
that the applicant is a person to whom this section applies; and
that the applicant is engaged, or is likely to engage, in activities prejudicial to the security and defence of the Commonwealth or to the execution or maintenance of the Constitution or of the laws of the Commonwealth, the court shall dismiss the application and the declaration shall, subject to this section, remain in force. “ (5.) If the Commonwealth does not so satisfy the court, the court shall set aside the declaration. “ (6.) The applicant or the Commonwealth, as the case may be, may, within twenty-one days after the decision of a court under subsection (4.) or (5.) of this section, appeal against the decision -
where the application was made to the Supreme Court of a State - to the Full Court of that Supreme Court ; or
where the application was made to the High Court or to the Supreme Court of a Territory of the Commonwealth - to the Full Court of the High Court, and the decision of the court on the appeal shall be final and conclusive. “ (6a.) Where a declaration under this section is set aside by a court (including a Full Court upon appeal from a single Justice or Judge) or the setting aside of such a declaration is confirmed by a court, the court, in its decision -
shall order the Commonwealth to pay to the applicant thecosts of the application and of any appeal; and
may order the Commonwealth to pay to the declared person such sum by way of compensation as the court thinks just in all the circumstances. “ (6b.) Where a declaration is in force under this section in respect of a person and the procedure provided by the preceding provisions of this section for the setting aside of the declaration is no longer available (whether or not that person made an application under those provisions), that person may, subject to this section, at any time apply to -
the Full Court of the Supreme Court of the State or Territory of the Commonwealth in which the applicant resides; or for leave to apply to have the declaration revoked. “ (6c. ) Where, upon such an application, the court grants leave, the court shall direct whether the application for revocation of the declaration is to be heard -
by the court constituted by a single
Justice or Judge; or “ (6d.) The court so constituted, or the Full Court, as the case may be, may hear and determine the application for revocation of the declaration and revoke the declaration or refuse the application, as it thinks just, and its decision shall not be subject to appeal. “ (6e.) A declaration which is revoked under the last preceding sub-section shall cease to have effect upon the day upon which the order of the Court revoking the declaration is made.”.
Proposed sub-clause (4.) places the onus of proof fairly where it properly belongs. I do no more than mention that fact. The second portion of proposed subclause (6.) deals with the question of appeal to the Full Court of a State, or the Full Court of the High Court. The arguments in support of that provision have already been advanced in connexion with organizations, and I shall not repeat them. New ground is broken by proposed sub-clause (6a.), which provides that the court, upon setting aside a declaration, may not only order the applicant’s costs tobe paid, but also, in appropriate cases, order the payment of compensation. I have already spoken of the consequences that will flow from the declaration of an individual. If such a declaration be made wrongfully, irreparable damage will have been done to the declared person’s reputation, and his economic future, and the Opposition considers that a court should be authorized to order compensation in cases in which it believes such action to be warranted. Proposed sub-clauses (6b.), (6c.), (6d.) and (6e.) deal with an entirely new position. It may well be that a person who is declared will not apply to a court and consequently will not appeal. He may feel that he cannot succeed, but, at some later stage, perhaps two or three years afterwards, he may feel that he has purged whatever offence he was guilty of in the eyes of the Government, and that he could properly make an application to a court to set aside his declaration. We do not propose that he should be able to make such an application as a right; we propose that he should apply to. the Full Court of a State, or the High Court for leave to appeal to have the declaration withdrawn. The High Court, or the Full Court of a State, would consider his application on its merits and determine whether leave should he granted, and if leave is granted, whether the hearing should take place before a single judge or the Full Court. There can be no disadvantage to the Government or anybody else in the acceptance of that proposal.
– There is already provision for the revocation of a declaration.
– Yes, the Governor-General may revoke it, which means in effect that the . Cabinet that made the declaration will have the right to remove it. This is very plainly purely a liberalizing provision, although it does not affect the broad purposes of the Government in seeking to crush communism, to prevent it from rearing its head in other forms, and deprive Communists and persons prejudicial to the security of the country of office in the Public Service and the trade unions.
– I do not propose to discuss this amendment at any length. The committee has discussed the principle in amendments to clause 5. I want to make a comment in relation to the extraordinary provision in this amendment that a person who is successful on an appeal may be awarded compensation. All through this debate, honorable senators have been told by the Opposition that these proceedings are analogous to criminal proceedings. That has been the whole basis upon which the Opposition has put its claim in relation to the onus of proof clause.
– The AttorneyGeneral denied that.
– I did, but the case that has been put by the Opposition is that the onus of proof should rest upon the Commonwealth, because this is the same as a man being charged with a crime. I know of no case in which a man who is charged with a crime, even the crime of murder, is entitled to get compensation from the Government because he was falsely accused. The Opposition is displaying a most extraordinary solicitude for these people. The measureis designed to deal with a man who, according to the executive government of the day, is declared to be a Communist, or whose activities are, or are likely to be, prejudicial to the defence of the country. A responsible body of men having come to that conclusion, the man is so declared. For some reason which I confess I cannot understand, the Opposition insists that although this is the same as a court prosecution, the man must be treated much better than one who is wrongly charged with a crime. A man who is charged in a court cannot recover compensation, but the Opposition proposes that some compensation should be provided when the Government is dealing with Communists.
– I agree with the AttorneyGeneral (Senator Spicer) that it is not the usual practice for costs or compensation to be paid in the case of an ordinary crime; but in this case the widest possible publicity is to be given to a declaration by the Government of the country alleging the most serious crime that can be alleged against anybody.
– That would be true in the case of murder.
– No. I suggest that murder relates to a serious crime against an individual. What is to be alleged in the case of a declaration is the most serious of all crimes against a whole nation. This is not a case of the Opposition insisting that compensation should be paid. All the Opposition proposes is that the court should be vested with authority to award compensation in a case where it deems proper. What is wrong with leaving that to the determination of the court in the case that the committee is considering ? I remind honorable senators of the irreparable harm that was done to a man in this community by the Prime Minister (Mr. Menzies), who publicly declared him in the Parliament to be a Communist. The man immediately repudiated the allegation and the Prime Minister withdrew it. This is not a case of the Opposition putting up a proposal that compensation should be paid to people who are wrongly declared. It is a matter of conferring on the court power to award compensation in a case where the court thinks proper, and from that point of view, the Opposition adheres to the amendment.
Question put -
That the words proposed to be inserted ( Senator McKenna’s amendment) be inserted.
The committee divided. (The Chairman - Senator T. M. nicholls.)
AYES: 29
NOES: 21
Majority . . . . 8
AYES
NOES
Question so resolved in the affirmative.
Clause, as amended, agreed to.
Clause 10 agreed to.
Clause 11 - (3.) If an application is made to the appropriate court to set aside the declaration, the suspension effected by sub-section (1.) of this sectionshall continue until the making of an order by the court upon the application. (4.) If the court sets aside the declaration, the suspension of the person concerned shall cease, but, if the court dismisses the application, the office held by that person shall, by force of this Act, become vacant, or that person shall cease to be so employed, as the case may be, upon the day upon which the court dismisses the application.
SenatorMcKENNA (Tasmania) [10.56]. - I move-
That sub-clauses (3.) and (4.), be left out, with a view to insert in lieu thereof the following sub-clauses: - “ (3.) If an application is made to the appropriate court to set aside the declaration, the suspension effected by sub-section (1.) of this section shall continue until the application has been decided and shall further continue until the day upon which any appeal against the decision is decided or, if no such appeal is duly instituted, until the last day on which any such appeal could have been instituted. “ (4.) On the day immediately following the day until which the suspension continues under the last preceding sub-section -
The alteration is purely consequential upon the insertion in the measure of an appeal provision, and I see no need to support it further.
Amendment agreed to.
Clause, as amended, agreed to.
Clauses 12 to 17 agreed to.
Clause 18 -
The receiver of an unlawful association may direct that any disposition of property of the association within one year before the date upon which the association was dissolved shall be void as against the receiver and the disposition shall be so void accordingly, but nothing in this section affects the rights of a purchaser payee or encumbrance in good faith and for valuable consideration.
– I move -
That the following words be added to the clause: -or the rights of a person making title in good faith and for valuable consideration through or under a person who is not a purchaser, payee or encumbrancee in good faith and for valuable consideration “.
I need only say that this clause is designed to avoid certain dispositions which may have been made by an unlawful association and this addition to the clause is for the protection of innocent persons’ who may have dealt with the association.
Amendment agreed to.
Clause, as amended, agreed to.
page 4236
– (SenatorNicholls). Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Chairman do now leave the chair and report to the Senate.
Question put. The committee divided. (The Chairman - Senator T. M. Nicholls.)
AYES: 29
NOES: 21
Majority . . 8
AYES
NOES
Question so resolved in the affirmative.
The Chairman having reported accordingly,
Senate adjourned at 11.5 p.m .
Cite as: Australia, Senate, Debates, 14 June 1950, viewed 22 October 2017, <http://historichansard.net/senate/1950/19500614_senate_19_208/>.