23rd Parliament · 2nd Session
The PRESIDENT (Senator the Hon. Sir Alister McMullin) took the chair at 2.15 p.m., and read prayers.
– I ask the Minister representing the Postmaster-General the following questions: - How many private telephone services were relinquished by subscribers during the period from 1st October, 1959, when the annual telephone rental was increased from £10 ls. 3d. to £13 17s. 6d., to 30th September, 1960? What was the total sum, as at 30th September, 1960, owed to the department by the unfortunate subscribers who were unable to retain telephonic installations because of the new extortionate rentals? Will the Postmaster-General take appropriate action to halt the Dracula-like practice of sucking blood from poor people in order that the department may live?
– I am quite certain that the facts I obtain from the PostmasterGeneral will show that comparatively few people were involved and that the number so involved does not warrant the extravagant and foolish language in which the question is couched.
– I address a question without notice to the Minister for the Navy. In view of the fact that next year the Royal Australian Navy will celebrate its 50th anniversary, have any plans been made to ensure that, subject to operational commitments, ships of the “R.A.N, will show the flag in as many Australian ports as possible so as to give the Australian people an opportunity to celebrate and to show their pride in the fine record of the Navy during its first 50 years of operation?
– The Navy has already worked out tentative plans to ensure that in the year which marks the end of the half century that has passed since it was established ships will go to as many Australian ports as is possible, and other suitable activities will be organized, so that the people of Australia may, as the honorable senator has suggested, pay some tribute to the service rendered by this arm of our defence forces.
Senator -BROWN. - I wish to ask the Minister for the Navy a few questions. During the Minister’s recent visit to Japan, did an opportunity arise to make inquiries regarding the Communist movement there and other matters of great moment? Is the Communist movement growing in Japan? What is the attitude of the Japanese people towards Russia and China and is Japan seeking increased trade with those two countries?
– The object of my visit to Japan was to take part in the ministerial conference on the Colombo Plan. The plan embraces all countries in the South-East Asian area. Political discussions do not and should not take place at such conferences, because there are various shades of political opinion in the countries which are donors and recipients under the plan. Consequently, so far as official matters are concerned, the subjects raised by -the honorable senator simply did not come up for discussion. However, I point out to him, in answer to his query, that at the elections held in Japan about a week ago, the government party led by Mr. Ikeda was returned with an increased majority. Speaking from memory, I think it gained approximately 300 seats of the total of more than 400 seats. That is the party which previously had approved of the Japan-United States Mutual Security Treaty. At that election, only three Communists were elected to the Japanese Diet. That was an increase, because previously the number elected had been one. However, when one compares the number of Communists elected with the number of representatives of other parties, one sees that, electorally at any rate, support for the Communist Party in Japan so far is insignificant.
– My question is directed to the Minister for National Development. By way of preface, I remind the Minister of a statement that has been made concerning the quantity of petroleum products imported by Australia annually, the value of which is approximately £120,000,000. I point out that the Argentine has been able to solve its oil import problem during the last two years. That country previously imported about 178,000 barrels of crude oil a year, but now, after two years, it is in a position to export oil products. In view of the fact that in Australia there are only fourteen oildrilling rigs, of which four are working, and because private companies are either unable or unwilling to extend their operations, will the Minister investigate the possibility of devising a nacional plan, with provision for the backing by the Commonwealth Government of private funds, if necessary, so that oil search in Australia may be undertaken on the same scale and as successfully as it has been undertaken in the Argentine?
– I am always receptive of proposals which may improve and enlarge the scope of the search for oil in Australia. The basic principle that we have to accept is that, because the search is a vast task, with such a great area to be covered and so much still to be found out, especially about Australia’s geology, the foundation must be a search by private companies, or by private enterprise. If we were to attempt to create the impression that oil search was a government monopoly, we should drive out not only the money that comes in to assist in the search, but also the brains, the experience and the knowledge that comes in with organizations from overseas. As I understand it, Senator O’Byrne has suggested that we should marry, in some way, governmental activities with those of private enterprise. I assure the honorable senator that we are doing that now through the Bureau of Mineral Resources and also under the subsidy arrangement. What Senator O’Byrne suggests is in effect already being done under our present policy.
– Is it true that only four rigs are at present operating in Australia?
– 1 cannot answer that offhand. That is something that merits consideration.
– I ask a question of the Minister representing the Minister for Labour and National Service. Has the Minister seen a statement made by the management of the Pope organization, which manufactures, amongst other things, electrical goods, that it will be forced to retrench 200 employees because of trading restrictions and restrictions on hire purchase, brought about by the Government’s economic policy? Will the Government give an assurance that employees retrenched by the Pope organization and other companies, because of the Government’s economic policy, will be found suitable employment in other industries?
– Yes, I have seen the statement attributed to Sir Barton Pope, who is a South Australian. As far as 1 remember the statement it did not refer to hire purchase, but it dealt with the difficulties being experienced by the Pope organization as the result of the lifting of import restrictions. All I can say to the honorable senator is that the figures published by the Department of Labour and National Service indicate that there are vacancies for employment of the persons who have been put off by this firm.
– My question is directed to the Minister representing the Minister for Trade. During the debate in this chamber yesterday on the sales tax legislation, Government supporters repeatedly said that there was a shortage of steel in Australia. Will the Minister give details of the quantity of steel that has been exported from Australia in the last three years for which figures are available? Will he also state to which countries steel has been exported?
– I am fairly sure that the information sought by the honorable senator, or similar information, was supplied comparatively recently in answer to a question asked in the Senate. However, there is no harm in supplying the information again and if the honorable senator will place his question on the notice-paper I will see that he gets an answer to it.
– I direct a question to the Minister representing the Minister for Primary Industry. The Minister will be aware that a writ has been lodged by the butchers against the levy imposed under the Cattle Slaughter Levy Collection Act. Pending the determination of court proceedings, what is the position of the proprietors of abattoirs who are bound to collect this levy?
– The Commonwealth Government has accepted service of the writ to which the honorable senator refers. An appearance has been entered by the Commonwealth. The abattoirs proprietors have been informed that provided records are kept during the time the action is being heard, and returns are furnished as required under the Cattle Slaughter Levy Collection Regulations, the Commonwealth will not take legal action to enforce the payment of any levy before a decision of the High Court in the action has been delivered.
asked the Minister representing the Minister for Primary Industry, upon notice -
– The Minister for Primary Industry has furnished the following reply: -
asked the Minister representing the Minister for the Army, upon notice -
Will the Minister give an assurance that the back pay due to members of the Citizen Military Forces will be made available to them before Christmas?
– The Minister for the Army has provided the following reply: -
Every effort will be made to have the additional amounts paid before Christmas but because of the size of the task, the short time available, and other necessary work which must be carried on it is not possible to give an assurance that all the additional payments will be made before Christmas.
Debate resumed from 29th November (vide page 1804), on motion by Senator Spooner -
That the bill be now read a second time.
– Mr. President, after all the disputation, and so on, of yesterday it is pleasing to me to be able to speak to-day about a bill which, I am quite sure, will be supported by honorable senators on both sides of the chamber. I take this opportunity to congratulate the Government on bringing down a measure to establish the National Library of Australia. Since the dawn of Federation, the ideal of a national library has been ever before this Parliament. Within a few weeks of the beginning of the first session of the Federal Parliament in 1901, it was decided to appoint a parliamentary committee to discuss the establishment of a National Library or a Commonwealth Library. The report of this committee was brought down in 1903, when a recommendation to establish a federal public library, of which a parliamentary library would be just one department, was placed before the Parliament.
Later, in 1907, further impetus was given to the establishment of a national library by the decision that such a library should be along the lines of the Library of Congress in Washington, because it was felt that this more nearly approached the ideal of a Commonwealth national library than did any other library elsewhere. Because there were great libraries in London, the British Parliamentary Library was not on the same grand scale as the Library of Congress in Washington. It was decided, because of Australia’s peculiar problems, to mould the Australian national library on the Washington model.
It was not until 1923, however, that very much more was done with regard to the establishment of a Commonwealth, parliamentary library, because, with the domiciling of the Commonwealth Parliament in Melbourne, the facilities available at the Melbourne Public Library and the Victorian Parliamentary Library were sufficient to take care of most of the special needs of members of Parliament. In 1925, the Public Works Committee of the Commonwealth Parliament recommended that with the building of Parliament House in Canberra, a separate building should be provided to house the National Library. It is rather interesting to note that the West Block of the Commonwealth buildings in Canberra was originally designed for this purpose. However, with the transfer from Melbourne to Canberra of various Public Service departments it was found that very little room was left in West Block for library purposes and it became commonplace to regard as identical the functions of the National Library and the Parliamentary Library, and they were housed in the Commonwealth Parliament building.
From the beginning of the Commonwealth, we have been very fortunate indeed in our Parliamentary Librarians. The first Parliamentary Librarian was Mr. Wadsworth, whose dream to have a real national library established is bearing fruit to-day in this bill. Secondly, we had Mr. Kenneth Binns, who was, I think, Parliamentary Librarian from about 1924 till 1947. I had the privilege of serving on the Parliamentary Library Committee with Mr. Binns for four years - from 1943 until his retirement. He was a very fine servant not only of the Parliament but also of the Commonwealth, and his zeal and enthusiasm for the library and its functions knew no bounds. Everyone in this chamber knows how much we are indebted to Mr-. White, the present holder of the office of National Librarian and Parliamentary Librarian, for his unfailing attention to his work, his great interest in it, his devotion to the cause of the National Library, and the constant willingness of himself and his staff to assist members of the Parliament in any task that they may undertake. He has always had before him as a goal of attainment the establishment of a national library.
Many people do not realize what a national library means. They fail to realize that there is a great need for a national library separate from the Parliamentary Library, as are. the libraries in each of the States. In each of the capital cities public libraries in addition to the Parliamentary Library are already established. In Sydney, there is the excellent Mitchell Library which deals mainly with the historical records of Australia. That library is doing an. excellent job. But apart altogether from State affairs, Australia is a nation and therefore a national library for the whole of Australia is definitely warranted. Of course at this time it is very unpopular to speak about the necessity for a building to house a national library. People think that because of the expense involved now is not the time to build. Now is never the time for major expenditures which do not yield revenue in actual pounds, shillings and pence. This decision to establish a national library goes back to the dawn of federation. For almost 60 years the proposal has been in the forefront of parliamentary thinking. The time has come when it can no longer be ignored.
The work carried out by the National Library is extensive. It does not consist just of the service given to members of the Parliament. That is only one very small part of its work. Its services extend to 40 countries beyond Australia. Over the last twenty years it has set up services wherever Australia has a diplomatic or trade mission. Each of those library services is manned by members of the National Library staff. I well remember, Sir, the time when the decision was made to set up an information centre in New York. One of the pioneer women in the field of parliamentary service, Miss Lilian Foley, went from Australia to establish that centre. Miss Foley was particularly qualified to do that. She had been a member of the library staff for many years and during the war years she also acted as liaison officer between the National Library and the Army authorities in Melbourne, where she was a reference officer doing a highly important job. She was the natural choice of a person when a branch of the Department of Information and a library service were established in America.
I should like to pay this tribute to the late Miss Foley: Important as her work in that field was, while she was in Canberra in the first couple of years after I was elected to this Parliament, she was always gracious and ready to assist any member of this or another place who required any assistance from the library or its archives. Miss Foley was the pioneer of all the members of the National Library staff who have gone overseas and who are doing such an excellent job at the present time not only for Ministers, trade commissioners and their staffs, but also for those members of the general public who show any interest in Australia. That is a service which comes within the ambit of the National Library and is not very well known to the majority of honorable senators. As I have said, the influence of the National Library extends far beyond this place. It extends to no fewer than 40 other countries, and in each of those countries the National Library staff is doing a great job in bringing Australia to the notice of people who are interested in it.
Since the inception of the library, first of all with a Carnegie grant which was given to us in 1936, the institution has been able greatly to extend its work. Ultimately a decision was made to set up an archives committee which was formed in 1942. Even in war-time, the Prime Minister of the day realized that that aspect of the work of the library had to be considered and extended. It was felt that the National Library should be the repository of the historical records of Australia. So many things had been dissipated between the States and other authorities that it was realized that the time would come when many of these precious relics would be lost forever if some provision were not made to house them. So now we have the archives section, which is a very important part of our National Library.
When the American Congressional Library was first designed the provision made for 750,000 books was thought to be sufficient for a century or more, but in a short time the space available became much too limited and a great deal of overcrowding occurred. Science has made it possible, by the use of microfilms, for the National Library to house as much material as the Congressional Library commenced with. A great deal of material can now be housed in a very small area. In planning a building we must take cognizance of the fact that microfilms will in many instances take the place of the voluminous books that previously had to be housed, but for these microfilms to be of any use in research work arrangements must be made in a National Library for the screening of the films. Students who make use of them must not be distracted by other users of the library and they themselves must not distract other students. Some people conceive a library as being only a place where you go to read popular novels, but that is not so. This is a serious attempt to build up something that is really worthwhile. There is nothing new about the concept of a library of this kind - a research library and a repository for the archives of the nation. These are things that go back in history a long way.
The development of library services is also a very important aspect of our educational programme. We spend a great deal of money on primary, secondary and tertiary education. We spend a lot of time and money in trying to get people to think for themselves. Unless we produce people who can think for themselves and are able to carry out research work, a great deal of the money spent on education will be wasted. This is not my opinion only. Thomas Maddison wrote -
Popular government without popular information is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.
This Jeffersonian ideal, so well expressed by Jefferson’s successor in the presidential office, involves not only a general system of formal education for the young, but provision for a continuation of the process during adult lift. Libraries are an essential part of such a process.
We in Australia are fortunate that since the days of Federation men with the necessary intellectual faculties have ensured that this ideal of a national library was not bogged down in our obsession with impedimenta and the usual bread and butter aspects of living. The Paton committee was appointed to consider the establishment of a national library and it brought down a report which dealt with the present position. The present position is unsatisfactory in as much as the Parliamentary Library Committee has had to carry out the dual responsibility of controlling the present activities of the National Library as well as those of the Parliamentary Library. The functions of the National Library far outweigh those of the Parliamentary Library. So, in accordance with the recommendation of the Paton committee, it has been decided to form a council to control the National Library. That is the purpose of the bill now before us. We are honoured in the fact that the President of the Senate, who is the chairman of the Parliamentary Library Committee, is to be a member of the council. The chairman of the council will be Dr. Grenfell Price, who is a distinguished South Australian and was formerly a member of the House of Representatives. The honorable member for Parkes (Mr. Haylen) will be a member of the council. Also included in its membership will be people outside the Parliament who are leaders in their own special fields of thought and research.
Over the years since 1903 members of successive Parliamentary Library Committees have devoted a great deal of their time to the establishment of the National Library and the work of the Parliamentary
Library. I have been associated with such committees over the past seventeen years. During that time men and women of different political opinions have forgotten their political views, have approached their tasks as members of the Parliamentary Library Committee in a non-partisan way, and have worked as a team.
At the present time, the National Library’s collections of art and literature are dispersed all over the place. In Canberra there are approximately a dozen buildings in which priceless collections are housed, but none of those buildings is of a standard that is in keeping with the value of its contents. Many collections are dispersed throughout the States. That is not a very satisfactory state of affairs. In Western Australia, the State archives, in relation to which the Commonwealth co-operates with the State authorities, are housed at Karrakatta. I doubt whether any of my colleagues from Western Australia have ever been there - I have not - to see what that section is like. But I have been on a tour of the various repositories in Canberra of collections which could not be bought to-day, and [ know the conditions in which they are housed. Honorable senators will recall that in London last week Captain Cook’s log was sold to American interests for about £50,000. Here in the Library we have Captain Cook’s journal, which is much better and which was purchased for about £5,000. Of course, to-day its value would be infinitely greater than that. The collections that are to be seen in our repositories show just how the officers of the National Library over the years have been alive to the need to purchase and to house various collections of interest, despite the limited resources at their command.
The activities of the Parliamentary Library Committee and officers of the National Library extend beyond the provision of services to members of the Parliament, the establishment of an archives centre, and the collection of items from all over the world which are of historical interest to Australia. A library service has been provided for the people of the Northern Territory, Papua and New Guinea, Nauru and Norfolk Island. The National Library’s film service is available to all members of the Parliament and to other interested bodies. It has been a great boon to those who have wished to avail themselves of it. In Canberra the National Library has not only introduced a mobile library, which takes books out to the suburbs, but also has developed a children’s library. That, of course, is not dealt with particularly in the bill, but it is one of the ancillary services of the National Library that is receiving attention and which needs to be given even greater attention in the future. At the present time the children’s library is open only on Saturday mornings, but as from February next a full-time service for children will be available at Civic Centre. I should like to see ultimately a children’s public library, established under the aegis of the National Library, housed at a ce. Ira location. Children cannot begin too early to take advantage of research and library facilities. The availability of such facilities is a natural corollary to the establishment of services of which the children may avail themselves later as research students and scientists.
There is one matter that was overlooked during the debate on this bill in another place; honorable members may not even have known about it. 1 refer to the great co-operation which the National Library has had from the women of Canberra who have assisted with the work of the children’s library. On behalf of the Parliamentary Library Committee I should like to take advantage of this opportunity to thank those women for the help they have given to the committee in making their services available voluntarily. I often wonder how many government instrumentalities would get on if there were not so many women in this community with a sense of responsibility. The voluntary work that has been done by women’s organizations for the National Library, and in many other fields, could not be bought with money.
The members of the Library staff do not come immediately under the control of the Public Service. But the Library has given a lead to the Public Service in providing equal opportunities for women. 1 am not quite certain whether that applies in the matter of remuneration. When I was first elected to Parliament only two women were employed in the Library service. One was Miss Foley. The other was Miss Hall who, although she is not still a member of the Library staff, has done us a very good service by marrying one of the other members of the staff and keeping him happy and contented in his work. We all know of the great work which has been done by Mrs. Warde, Miss Linley and the young girls who help us in our selection of books ar.d who come in contact with us in the Library. The employment of women on this staff is quite an innovation. Twelve years ago we did not see the womenfolk who worked in the Library; they were in the background. Now we see these young ladies, and perhaps they are quite an attraction to some of my colleagues.
The Library is rendering a service to Australia as a whole in the training of librarians, not only for our own Library service in Canberra but also for the libraries ir, the States. That is a phase of activity which has grown during the last fifteen years. 1 know it is rather late in the session and that some honorable senators do not wish to be bothered about discussing a bill which will be passed in any case; but I remind the Senate that the concept of a National Library is or.e in which we should all take a vital interest. Not the least important aspect of the matter is the kind of building in which the Library should be housed. I hope that when eventually a building is erected it will be able to take its place amongst the other great libraries of the world. I have not seen as many libraries as I should like to have seen, but I have seen the Bodleian Library, the libraries in London, and a very excellent library in Manchester. There are great libraries in Paris and in other cities that come to mind.
We do not want to build’ in Canberra a library which people will mistake for a Christmas cake, a chewing gum factory, or something of that kind. We do not want to have a kind of architecture that is so modernistic that people in later years will say, “ That building must have been constructed in the period of modernistic art, when the whole world was topsy-turvy “. We want a building that will always be worthy of this capital city. We want a building that will fit into the Canberra scene, not one that is so modernistic that we shall be ashamed of it when we outgrow the present adolescent stage of our architecture. We do not want the National Library to be known as a Canberra monstrosity. In this respect, I am sure that I have the full support of Senator McCallum and of others who like to see the aesthetic and the utilitarian combined in such a way that in the years to come those who follow us in this place will realize that we did our best for succeeding generations.
After all, Mr. Deputy President, a library is not built for just a day. The National Library will not be of a temporary nature, like many of the other buildings that have been erected in Canberra. We want a building that is solid1 - one that will last. We want a building to which we may point with pride and which, in the centuries to come, will be a monument not only to those whose works lie in its vaults and on its shelves but also to those who were the architects of the future, those who, in the early days of the Commonwealth, had the vision to see the need for a national library and the competence and the courage to build one.
On behalf of the Opposition, Mr. Deputy President, I support the bill. We trust that it will not be long before we all receive an invitation to the opening of the National Library.
– 1 listened with a great deal of interest to the remarks of Senator Tangney, one of my colleagues on the Library Committee. A number of things which I had intended to say have already been said by her, but I shall try to fill in the gaps, as it were. As a member of the Library Committee for some eleven years, I naturally welcome this legislation. The name of Senator Sir Alister McMullin will always come to my mind when reference is made to the National Library, because I feel that it is due to his quiet persistence over the years that the Commonwealth Government has been induced to place the Library in better perspective than that of former years and to regard it as a storehouse of knowledge for the intellectual life of our nation.
The bill before the Senate places the concept of the Library on a statutory basis. It sets out to do that by separating the National Library from the Parliamentary Library, which should, of course, provide services only for the Parliament and the heads of departments working with their Ministers. In connexion with this separation, a National Library Council is being established, under the chairmanship of Dr. Grenfell Price. Two members of the Parliament - Senator Sir Alister McMullin and the honorable member for Parkes (Mr. Haylen) - also will serve on it. The actual physical separation will, of course, be very difficult to undertake until such time as we have a building in which we are able to put those things which properly belong to the National Library and to retain in the parliamentary building those things which, equally properly, belong to the Parliament.
A great deal of ground work has been done by the various committees that have been appointed. As early as 1951, we invited Dr. Burchard, the Dean of the Faculty of Humanities and Social Studies at the Massachusetts Institute of Technology, to visit us. He spent some months with us, and eventually, under his guidance, a model was made of a building to be erected around the pathetically small building in King’s-avenue which is known as the National Library to-day. We had a joint meeting of the Public Works Committee and the Library Committee, as a result of which the construction of the building was approved tentatively, subject, of course, to approval by the Government. Unfortunately, that proposal fell through.
The next thing that happened was the appointment in 1956 of a committee under the chairmanship of Sir George Paton. The activities of that committee extended into 1957. A great deal of work was done by it and a useful report was presented. Following that, we had a visit from Dr. Metcalf. From what I know of the contents of his report, which was confidential, I should say that it was that report which really woke the Government up and brought to its notice the need for something to be done to save our national treasures from being lost. We had the Nan Kivell collection, for instance, stuck away in the basement of the Health Department, where it was open to fire, flood and burglary. We had articles all over Canberra. Our films, micro-films and film units were in danger from fire. We had to put up three Nissen huts at Scott’s Crossing in order to get the collections off the floor. The report really brought those facts home to the Government, and from that time, the Government began to take a steadily increasing interest in the matter.
There are, of course, many different kinds of libraries. We have the great national libraries, such as the Library of Congress and those others to which Senator Tangney has referred. Then we have municipal libraries, small and large, some of them specializing solely in children’s works. There are sectional libraries, such as those established by the great universities, learned societies and professional organizations. When we come to still smaller libraries, we have ships’ libraries. They, perhaps, are the most difficult libraries to stock because there is a very limited space in which to keep books on ships. A ship does not want to carry a lot of literature that will not be used. Generally speaking, in the average passenger liner the library consists of about 50 per cent, of travel books, particularly illustrated books, about the ports, countries and towns that the ship will be visiting. About 40 per cent, of the books are works of fiction, and the remaining 10 per cent, biographies, historical works and literature of that kind. Honorable senators may know of the unique library at Kew, in England. That library has been collecting botanical works for the last 200 years and to-day has some 55,000 books. It receives inquiries from all over the world, from every nation, which it is well able to meet. Then we come right down to the large and small personal libraries, such as my own tiny collection of some 2,000 books.
It is always very interesting to look back on history when we are either thinking or studying. Those of us who remember our Greek history will know that museums and libraries are not new things. The records and the histories show that for some 1,500 years Athens was the centre of the intellectual life of the world. In about 500 B.C. Alexandria, a new centre across the Mediterranean - that wonderful city which, as the name implies, was founded and built by Alexander the Great - came into prominence. Tn that city, Ptolemy had become Pharaoh, with a court which spoke Greek. He had studied and embraced the theories of Plato, Socrates and Aristotle. He became an intimate of Alexander and pledged himself to the pursuit of knowledge. He built a museum which he dedicated to the Muses. Alexander had already spent large sums of money furthering the inquiries of
Aristotle, but Ptolemy was the first person to make a permanent endowment to the science of the world. During his reign there was a blaze of knowledge and discovery such as the world had never seen before and has seldom seen since. Two generations produced such men as Euclid, of geometry fame; Eratosthenes, who measured the earth and1 arrived at a figure within 50 miles of the figure which we now know to be correct; Appolonius, who was a great mathematician and wrote a treatise on conic section; Hipparchus, who made the first charts of the stars; Hero, who was the original discoverer of some of the propensities of the steam engine, although nothing practical was built at the time - he simply developed the theory - and Herophilus, that great anatomist who was the first person to practice vivisection.
So during those two short generations many men of great calibre were produced. Ptolemy not only produced fresh knowledge but he also set up a storehouse of knowledge. With a great army of copywriters he built what could well be called a book-copying and book-selling organization in his library and museum in Alexandria.
Here then we had the beginning of the intellectual process which we continue in this modern age - the process of collecting, storing and distributing knowledge. The libraries of the world to-day are systematically collecting, storing and distributing knowledge. That is their primary function. The museum library which Ptolemy dedicated to the Muses in Alexandria was the first step towards the establishment of a library of modern history. To-day we are continuing the work so ably begun by Alexander and Ptolemy. In the legislation now before us we have the honour of laying the foundation of what some day will be one of the great national libraries of the world - the National Library of Australia. I have no doubt that this was in the mind of the first Library Committee when the Commonwealth Parliament was inaugurated in 1901, because in one of its first reports to the Parliament the committee said -
The Library Committee is keeping before it the idea of building up a great public library on the lines of the library of Congress at Washington; such a library indeed as shall be worthy of the Australian nation; the home of literature, not of a state or a period but of the world and of all time. lt is obvious that the original Library Committee had much the same ideas as I hold to-day and as various library committees have had in the past.
As Senator Tangney has said, for the first 25 years of federation not a great deal was done. The Commonwealth Parliament had been established in Melbourne and had only a small reference library, housed in the Library of the Victorian Parliament House which the Commonwealth then occupied. One of the notable events in the first 25 years was the acquisition of the Petherick collection of some 10,000 volumes and 6,500 pamphlets and maps. A few years later the Copyright Act was passed, which compelled book publishers who published a book for the first time in Australia to supply a copy of that book to the National Library. I can gloss over in a few words the events that followed because they were dealt with by Senator Tangney. In 1925 the Public Works Committee recommended that a permanent building should be erected in Canberra for the National Library before the Government moved here. West Block was built for that purpose; but unfortunately, as has happened on so many occasions where the Library has been concerned, the Government found other uses for that building. As many as possible of the books and other materials of the Library were moved to Parliament House and our present parliamentary reading room and Library were established.
At that time, the Parliamentary Library began to supply the Canberra University College with its requirements, and it has done so ever since. In 1935, the small building in King’s-avenue, which is pathetically known as the National Library, was built. As that Library had a function beyond that of the Parliamentary Library, its estimates were taken out of the control of the Parliament and placed under the Prime Minister’s Department. That was done for reasons that were better known to the Government than they are to me. The estimates for the National Library have remained under that department.
Since 1950 there has been a steady increase in the volume of material that has been coming into the National Library. We have been very fortunate in obtaining quite a number of treasures which, if lost, could never be obtained again. We have also been most fortunate in being able to complete series, such as the English Law Reports, of which we were short of numerous copies. At all times the accommodation problem has been a real hindrance to the successful functioning of the Library. We have had material scattered all over Canberra, and it is a mystery to me that the staff of the Library is ever able to find anything. Finally, three Nissen huts with concrete floors were erected near Scott’s Crossing to house Library material. To-day, we have about 600,000 books in the basement of the Administrative Building. Those books are safe there unless we have a terrific flood, which may inundate the basement. It is not good practice to store books or works of art below ground level. They should be stored above ground level. Nevertheless, we are much better off to-day than we were in the past and we are grateful for such space as is available. We also must consider the question, of housing archives and films, and other material that is coming in all the time - between 25,000 and 30,000 books a year, apart from special collections. We have obtained some wonderful collections in the past. In the last three or four years we have managed to show part of the Nan Kivell collection of pictures in the basement of Parliament House, but that is not an appropriate place for the display of such works of art. I hope that some day we will be able to exhibit some of these treasures in appropriate surroundings so that all Australians may see them. It is very interesting to take friends into the reading room of the Library and to hear their views about it. It is also interesting to hear the views of members of Parliament. Visitors to this place think that the reading room is a wonderful place, as indeed it is. It is one of the best reading rooms that I have seen. But the rest of the Parliamentary Library and the National Library are not on a par with the reading room. The latter gives visitors a completely wrong impression of the facilities provided in the Library. Occasionally, one hears remarks like this: “ What do you want another library for? You have a wonderful show here.” The people who say those things cannot see any farther ahead. Whenever I hear such comment, I point out to the people making it some of the things I have mentioned here to-day.
The function of one of the subcommittees of the Library Committee that was established was to inquire into the present position of the Library, and to consider how the separation should be effected and the work that should be given to the purely reference library in Parliament House. 1 was a member of that sub-committee, which found that we should start off with five specialists who could get ready for immediate use the series of undertakings that are required by parliamentarians and the heads of departments in connexion with their work, lt was appreciated that parliamentarians might require information to be supplied at short notice when they were preparing speeches in reply to something that had been said by some one else. So we suggested that there should be five specialists who would cover various fields. The first would cover banking, investment, public finance, and international trade in general. The second would cover primary and secondary industry, employment and industrial matters. The third would cover science and technology. The fourth would cover international affairs. The fifth would cover the Constitution and government, law and political institutions. As I have said, it was suggested that the appointment of the five specialists would be a very moderate start, and there would remain without expert cover the subjects of Territories, defence, health, housing, immigration, social services, statistics, transport and communications, and so on. Coverage in these fields could come later.
The sub-committee suggested that a start should be made on this basis and gradually, in the course of time, specialists could be appointed to cover additional fields. After the separation, the Parliamentary Library - the reference library - will always have recourse to all the materials in the National Library. The separation will not affect that arrangement.
Whenever I think of the Library I think of Senator John McCallum, because it was the select committee of the Senate that was appointed to inquire into various matters concerning Canberra, under his chairmanship, that brought about the establishment of the commission which is hurrying up the building of our Library and is doing such grand work in this town. It is all very well for some people to say that we cannot afford to spend money on this and that, but when we have a priceless collection of works I think it would be much better to construct a building to house them than to bring up a department from Melbourne where it is already housed and put it into premises in Canberra. To me, that seems to be a case of putting the cart before the horse, although I am probably prejudiced as a result of the years I have spent in trying to get something done in this connexion. At least a site has been provided on the western side of where the new Parliament House will be - on the side opposite to where the High Court will be established. That is something. 1 was very pleased to hear the Prime Minister (Mr. Menzies) say that the planning of the building was to commence straight away. 1 understand that it will take at least eighteen months for the plans to be drawn up. By that time, the present economic crisis may have disappeared and we will be able to go ahead with the building. There is an urgency about it, as I have tried to stress, because so much of our material, if lost or ruined, could never be replaced. That would indeed be a tragedy for Australia.
I notice from the Estimates that the staff of the reference library in Parliament House is to remain for this financial year at the strength of 39 as it has been for many years, but we are to try to recruit staff. Under our new scheme, with the prospects that it provides, we may be able to recruit staff. Obviously, it has been very difficult to get anybody to work in the Library because of the extraordinary difficulty of the work to be performed and the lack of prospects. Now that some form of cadetship is being talked about and there will be some prospect of it being worth while to be on the Library staff, we may be able to obtain something like 50 or 60 recruits to perform the functions of the Library after the separation takes place.
I hope that the rest of the debate will be interesting, although I understand there will not be very many speakers. I have much pleasure in supporting the bill.
.- Like Senator Dorothy Tangney and Senator Kendall, I have had an association with the Library Committee, which I have greatly valued. I have valued it all the more perhaps because I had a little more difficulty in getting on the committee than most senators have had. I have appreciated the work that has been done by former members of the Library Committee. I think they realized some years ago that there was an undesirable situation when we had a parliamentary library and a library which was intended to be a national institution combined in a way which was very unsatisfactory for both parties. We had in Canberra a building which was dignified by the name “ Library building “ which, 1 think, must have come as a great shock to anyone who visited this national capital. It was quite obvious, not only to the Library Committee but to other people, that Canberra would be incomplete until it was adorned by a national library of a kind which could do credit to our national capital. I hope that that library will come very quickly. I think that, if anything, we have not progressed as far in the direction of cultural buildings as we have in the case of other buildings. It is a great pity that Canberra does not yet have a hall of a kind which would be suitable for great functions. That, like the Library, is urgently needed.
A great deal of planning and work were put into the preparation of this particular measure. I want to pay a tribute to those who did the work because I think that they have done it extremely well. The secondreading speech of the Minister for National Development (Senator Spooner) sets out very clearly the functions which the new Library will undertake. I feel that those who have been chosen as the initial members of the new Council of the National Library of Australia, are well worthy of the honour. When we read the names of those who will comprise the interim council under a distinguished chairman we must feel that the new National Library, and the planning for it, will be in very competent hands. I know that the interim council will face many great problems, not the least of which will be the obtaining of an adequate and a satisfactory staff. In Australia there is a shortage of university lecturers - of people who are needed for all kinds of education - and of people who can contribute to our National Library. There is also a great shortage of librarians, and I hope that one day we shall have associated with the National Library a school of librarians that will train people for the States of the Commonwealth.
Great difficulties are facing the new committee in the acquisition of trained staff. Some twelve months ago, at a meeting of the committee, I referred to that fact and suggested that measures should be taken to increase the staff of the existing library and, if possible, to arrange for cadets to train for future employment in the service of the library. We had evidence from the Librarian of the difficulties of bringing staff to Canberra. First, there are difficulties in regard to accommodation, which I suppose are common to all departments at present. There are also difficulties in regard to salary. We know that many commercial undertakings are offering high salaries to competently trained librarians. This is making somewhat limited the field from which it is possible for the National Library to choose. I hope, therefore, that when the library committee makes overtures, as no doubt it must, to the Government for the provision of attractive salaries for the staff of the new National Library and for the solution of other problems, such as accommodation, the Government will be as co-operative as possible, because the library will not depend so much upon its building and its books as upon the people who are associated with its work. Unless we have highly trained people of the best quality, we will not get the best from the National Library. The only way to do that is to make attractive the conditions under which they work and to provide them with salaries which are reasonable in comparison with what is offered outside.
The new library will have a special function of a type that is commonly associated with the world’s great national libraries. I refer to the collection and preservation of national literature for current research and for the enjoyment of posterity. Any country, of course, must foster its national literature. It has been claimed that we in Australia have not a very great national literature. Efforts have been made to provide from a great number of sources the foundations upon which that literature can grow. I believe that our National Library can perform a task in the collection and preservation of our own literature. Assisted by the fact that the Commonwealth
Parliament was wise enough to arrange, under the Copyright Act of 1912, that our National Library should have the benefit of all publications produced in this country, successive library committees have devoted a great deal of attention to building up a comprehensive collection of material relating to the life and achievements of the Australian people. It is only natural, therefore, that this should have been made a special feature of the bill that we are considering.
I am glad that we have been assured that the library in the past has co-operated with State institutions and that that co-operation will continue in the future. An excellent example of co-operation between the National Library and State libraries was seen recently with the advertisement of the sale in London of the so-called Palliser logs of the first and second voyages of Captain Cook. The National Library already has the original records of those voyages, including, in Cook’s own hand, the day-to-day record of the first voyage. It was an example of much desired co-operation that the National Library decided to stay out of the field of bidding for the Palliser logs and left it open to the Public Library of New South Wales and the Alexander Turnbull Library of New Zealand. Indicative of the difficulties that governmentorganized libraries meet in bidding for treasures such as this is the fact that the price reached the extraordinary level of £53,000 sterling, which was bid by an American collector.
In spite of the fact that the National Library has been associated with the Parliamentary Library and therefore has not had an exclusive field in which to work, it has a very remarkable collection of Australian material. I am sorry that the circumstances under which much of that material is stored do not make it freely available to persons who desire to make use of it. In the Australian collection we have manuscripts, printed material, maps, historical pictures, prints and photographs, moving picture films and even sound recordings. A very happy feature of our collecting programme has been the generous donations made to the library by such persons as Mr. E. A. Petherick, Mr. Gregory Mathews. Mr. Hardy Wilson, Mr. Justice Ferguson and other devoted collectors. Conspicuous among these, of course, is Mr. Nan Kivell, who recently made available to the National Library what is, 1 suppose, one of the most magnificent pictorial collections in the world relating to Australia and the South Seas. We must thank Mr. Nan Kivell for making that collection available to the National Library on terms that represent only a tithe of its value. That collection would probably otherwise have gone to the United States and we must be everlastingly grateful that it has now become the property of the Australian people. The collection of Australian material is one of the most important tasks of the new National Library. 1 compliment the library committees of the past on the manner in which they made arrangements for such material to be collected. I hope that it will not be long before it will be available to the community in a library building that will be a credit to our national capital.
I want to conclude by a brief reference to material which is now being collected in a field in which I take a great interest. 1 refer to the history of trade unionism and of the political party, the Australian Labour Party, which is associated with the trade unions. Most people will agree that there has been a disappointingly small amount of material written about the history of the trade union movement and its political party. 1 was interested in it as a young man and I found the amount of material available disappointing. 1 have always thought it a pity that some of the men whom I would refer to as the giants of the past in the trade union and the political spheres were not able, before their passing, to write their memoirs and make them available to the Australian people. One man to whom I refer particularly is the late Mr. Charles Crofts, who was associated with the beginning of the Australian Council of Trade Unions. I know that he collected a vast quantity of material with the intention of writing, during his retirement, the history of the trade union movement in Australia; but, unfortunately, he died before he was able to commence that task, lt is regrettable that many such men are passing away and, as far as I know, no attempt has been made to place on record in book form a story which must be very fascinating.
I pay tribute to the Librarian, Mr. Harold White. I understand that he has shown a great interest in this field. On a number of occasions when prominent men in the
Labour Party and the trade union movement have passed away, he has contacted their relatives and asked that if possible their papers be made available to the National Library. We are fortunate that his initiative in that respect has been rewarded by the papers of many distinguished men in this field being made available. However, a great deal more could be done. I understand that contact has also been made with the Australian Council of Trade Unions with a view to having trade unions make valuable records available to the National Library. I hope that that contact will be continued and extended.
The secretary of the Manufacturing Grocers Employees Federation, Mr. Fred Riley, has taken a great interest in this matter for years. He has made himself a one-man supporter, as it were, of the National Library in this field. He is continually sending to the Library all kinds of documents associated with the development of trade unions and the work they are doing at present. That material is very valuable to students of political science at the Australian National University, research scholars and others. I am sorry that a great deal of other material appears to have been lost. I pay tribute to the National Library for doing what it can to rescue such records from oblivion.
Once again I want to compliment the librarians of the past and the members of the Library committees on the splendid pioneering work they did. I want to express my confidence in the new National Library Council headed by Dr. Grenfell Price, In choosing him, the Government has chosen very well. I also mention the President of the Senate who has stimulated the work of the Parliamentary Library Committee. I believe that the National Library Council is well worthy of the great task that has been committed to its hands.
– My colleagues on the Parliamentary Library Committee have explained the main purposes of the bill so well that it will not be necessary for me to say very much about it. I think I should explain the origin of the concept of the Congressional Library and where we have, departed from it. The National Library is a product of the Parliamentary
Library. It grew up naturally, and the two libraries were together. Of course, Congress is quite separate from the Executive in the United States. Therefore, for Congress to control a big library and allow it to be used for public purposes was quite in accord with American traditions. However, we found that we could not do that because the library vote came under the Prime Minister’s Department and some of it was for our purposes while some of it was for the purposes of other people.
I had the honour of being not only on the Parliamentary Library Committee from its inception, but also on the Paton committee. That was one of the most interesting committees on which 1 have sat because there was no doubt that every member of it brought something to it. The chairman was a very forceful man. Most of the conclusions that we arrived at seemed to be inescapable. There were one or two with which I agreed rather reluctantly, but they did not matter. In the main, the report was a very good one and this bill is the fruit of it. You, Mr. President, must feel very gratified and pleased because the Parliamentary Library Committee has functioned under your chairmanship for many years.
I want to make the important point that this bill will give us the services of both the National Library and our own Parliamentary Library. We will have housed here in the latter library a number of reference books and other books that we believe are essential, but if any of us wish to use a book in the National library we will have a claim to it. Some argument arose about whether our claim should come first or second, and I think that question was finally decided quite justly. A book might be in more useful hands outside the Parliamentary Library than in those of a member of Parliament.
I also wish to emphasize that there must necessarily be a library building and the cost must be measured against the greatness of the need. A library to-day is not what used to be called in the old days “ a gentleman’s library “, with many interesting books to read. It is not merely a library of history books and other literature. It is the whole basis of the community’s life. Without a library we simply could not carry on the government of the country and the economy would certainly be left to the hazards of chance. When we think of a library to-day, we think of many things which would not have been considered part of a library in the old days, lt includes not only collections of books for all purposes including literature, science and economics, but also microfilms and recordings. The types of records that go into a library seem to be increasing day by day. 1 believe that the National Library should be controlled by a body of men who are prepared to give their private services. Of course, the Librarian and his staff will do the work, but over them there should be a council, such as the one which has been set up, consisting of distinguished and able people. I was inclined to believe that there should1 be a fairly solid parliamentary representation on the council. I would have liked to have a couple of representatives, not necessarily men, from each House on the council. However, the decision was made that there should be one representative from each House. The choices which have been made are quite good ones. You, Mr. President, in your work on the Parliamentary Library Committee, have shown that you understand it; and Mr. Haylen, a member of another place, not only knows books but also has written them. He has a very sound knowledge of what is necessary.
Some things which ought to be said in this debate have not yet been said. This Library will be a great co-ordinating body. That will be one of its main functions. It will not work well if we try to build it up as an exclusive library and if we try to starve the State, university and other libraries. It will be a great central pool or reservoir. One of the most important jobs is to compile a complete catalogue. Already the Australian Bibliographical Centre, which is in the library, has published a catalogue of newspapers and has begun to compile a catalogue of books. Some books are used so rarely that it would be a waste of time and money to try to bring them all to Canberra. But, if we have this great catalogue showing that a book is in the central National Library, in the Mitchell Library in Sydney, or in a State library, people will be able to ascertain where books are and obtain them. That inter-change between libraries is one of the most important features. At present Professor Maurice Tauber, who has some money from the Fulbright people, is about to conduct a survey of the books that are available in various libraries throughout Australia.
I was one of those who gave a great deal of attention to the subject of archives. The committee heard evidence about it. There was some difference of opinion amongst the members of the committee and the decision that was finally taken was taken, I think, largely on the advice of Dr. Bean, a great Australian historian who has used archives. I had the feeling that it would be good for students if the library could make archives freely available to them. However, the manner in which the storage of archives differs from the storage of ordinary library material was gone into by the committee and possibly it was thought that, since archives are confidential records and belong to the Government, they should not be made available - at any rate, not until some time after the death of the people concerned. To-day there is a regrettable tendency amongst some people to write books in which they betray personal secrets. Some of those books, I think, are deplorable. The old rule was that you did not release archives until years and years after the events to which they referred. That may be an advantage in the proper writing of history. After all, when you live too close to events it is very difficult to take a completely unbiased or a proper historical view of those events.
It is with the greatest pleasure that I support this bill. It is something for which ordinary members of Parliament have worked for years. A lot of the planning has been done, not by Ministers nor by public servants, but by the Parliamentary Library Committee and private members of Parliament helped, of course, by the Parliamentary Librarian. It has been a great pleasure and an honour to serve on the Parliamentary Library Committee.
The new library building should be, of course, an efficient building. I was a member of the Library Committee when, some years ago, the committee looked at the plans for a building. I was bitterly disappointed because, from the outside, the proposed building looked like a barn or a factory. A library, of course, is essentially a workshop, and the proper placing of books and material is most important. However, I hope that a really fine architect will be employed to design this building. I hope that it will be the next building of any importance to be erected in Canberra. I am afraid it must take precedence over a new Parliament House. 1 trust that, because of its size and its beauty, it will be in every way an honour to this city and to this country.
.- In supporting this progressive bill 1 wish to refer very briefly to the place of the cinefilm in the modern library. To-day I think it is true that films - that is, cine-films and excluding the ordinary utilitarian use of the micro-film for manuscripts or books - constitute a unique form of record and medium of information. It does not replace print and paper, but it supplements and complements those more traditional media. It is, therefore, one of the many forms of record with which research libraries and national libraries, with their heavy commitments as the repositories of national history, very properly concern themselves. Any films which are the product of a country, whatever their subject or form, and any films which portray or interpret any aspect of a nation’s life, are as proper to the collections of that nation’s national library as are files of its newspapers or the output of its creative writers.
In a film recently preserved by the National Film Library - a film made in 1920 and entitled “ A Girl of the Bush “ - there is a detailed study of a shearing shed in 1920. This is interesting now, only 40 years later, and it is not difficult to imagine how valuable it will be to the historian 100 years from now. We could give very many instances in which films made in Australia in the early days of film-making would be invaluable as records of the important historical and political events of the time when they were made. Early in the history of documentary films Captain Frank Hurley, when a member of Mawson’s expedition in 1911-14, took some splendid films of the natural history of the area which the expedition explored. I can recall the screening in the Senate party room of a film taken during that expedition showing penguins, appearing to play football, and some of the officers of the expedition playing football on the ice. They were remarkable pictures, taken nearly 50 years ago. The same Australian, Captain Frank Hurley, made a film in the early 1920’s called “ Pearls and Savages “. It was filmed on location in New Guinea. We have a copy of it in our archives and it presents for us a very valuable record of a rapidly changing territory. New Guinea is changing rapidly, and a film showing what that place looked like in 1920 is a most valuable record.
One difficulty has been that no legislation exists providing for the deposit of films in the National Library. It is an unfortunate fact that dozens of early Australian films, which are believed still to exist, have yet to be found. We cannot be sure that they have survived. If they have, they are probably in the hands of private persons who are unaware, perhaps, of the modern facilities for copying 35 mm. nitrate films on to non-inflammable 16 mm. filmstock, as the library is able to arrange to be done.
I refer the Senate to what was said by Sir Arthur Elton, a noted British film producer, in January of this year in a foreword to one of the catalogues of the National Film Archives in London. He said -
We can still consult the orations of Cicero, the commentaries of Julius Caesar and a fair number of the books of Livy. We often have the greatest difficulty in consulting film records of even the most epoch-making events in the first decades of the twentieth century. This is not only because paper, papyrus and parchment are more durable than cellulose nitrate, which is difficult to store, perishable, inflammable, and even spontaneously explosive, but also because the moving picture has positively attracted obliteration. People used to go out of their way to get rid of film the moment it ceased to be profitable. They were contemptuous of anyone who acted otherwise, and even to-day this attitude still lingers on. What caused it is difficult to decide. It may have come because, in the early days, the established arts regarded the film as a vulgar interloper. They elbowed it into the back streets and failed to recognize it was the first brand-new art form in a couple of thousand years.
I think Sir Arthur has put his finger on an important problem for the historians and research scholars of future generations. With the separation of the two library bodies to be brought about by this bill, I hope that the great work which the library has done in preserving our early national films will be improved upon and that it will be successful in tracing some of the earlier gems. It is interesting to note that the film “ Pearls and Savages “, to which I referred, was discovered not in Australia but in the British film archives. Australia’s first motion picture - a film of the 1896 Melbourne Cup race - came to light in, of all places, the French film archives. The fact that we have been able to trace those films is, of course, an exception. The limitations of library space and of legislative provisions have considerably hampered the collection of various works.
Not only does the purchase by the Library of Australian films assist local producers directly, but the lending of them throughout the country has resulted in the sponsoring of their films and of desirable publicity for what they have done. Furthermore, the listing of local productions in the National Library’s film catalogue assists producers in placing their films in other countries which want to obtain documentaries and other descriptive films of the Australian way of life. Often the film catalogue is the only publication circulated overseas which lists Australian films. Those very brief remarks are addressed to the film aspect of the Library’s work.
I indicate my strong support of the bill. I hope that this institution, which has been of such great assistance to all members of the Parliament in the preparation of their parliamentary work, will go on from strength to strength.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
– by leave - I desire to correct an error in a press report regarding the vote which was taken in the Senate yesterday on the sales tax bills. A report in the Sydney “ Daily Telegraph “ of to-day’s date reads as follows: -
Senator J. H. Cooke (Labour, Western Australia) who is ill was paired with Senator E. B. Maher (Country Party, Queensland) who is overseas.
That report is incorrect. I desire the true position to be recorded. Accordingly I make the following statement: I was noi, and am not, ill. A pair, which was approved by both parties, was granted between Senator Maher and myself, who were required to go overseas on the business of the Parliament, namely, the conference of the Inter-Parliamentary Union. The pair was to operate until the end of the current session of the Senate. Senator E. B. Maher is en route from the conference to Australia. I honoured the pair and left the Senate when the vote was taken.
Debate resumed from 5th December (vide page 2004), on motion by Senator Paltridge -
That the bill be now read a second time.
– The purpose of this bill is to erase a futile provision from the Audit Act. Section 36 (2.), which is to be repealed, reads -
The Minister of each Department shall within thirty days after the close of the financial year prepare and transmit to the Treasurer a statement of all claims in respect of the services of his Department outstanding at the close of such yea which might by law have been paid out of the Consolidated Revenue Fund during such year.
The Senate will note that that provision requires the various departments to prepare a statement of outstanding claims at the end of each financial year, and of course the Auditor-General is required to furnish thai information to the Parliament. For two or three years the Auditor-General has been concerned about the provision. He has appreciated that the information so compiled is of no use to him and is of less use. if that is possible, to the Parliament. The Goverment has wisely decided to have the provision deleted from the act.
Nowadays it is necessary to streamline the work of the Public Service. Nothing is to be gained by any group of public servants performing work which does not serve any useful purpose. In the case in question, the work has been carried out unnecessarily for a number of years. The provision that I have quoted was copied from the New Zealand legislation, but ii is interesting to note that the original provision in the New Zealand act has been repealed. The Opposition does not oppose the measure. By agreeirg to the bill we are not subtracting anything from the provisions that we regard as being desirable to safeguard the finances of the Commonwealth. As I have indicated, we detest the duplication of work in the Public Service. If a genius or a new-fangled machine were introduced in the various departments, I suppose we would find groups of public servants that were duplicating the work of others. This matter was dealt with by the Public Accounts Committee, whose recommendation is now being acted upon.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Debate resumed from 1st December (vide page 1956), on motion by Senator Paltridge -
That the bill be now read a second time.
– I whole-heartedly support the bill, because it seeks to increase Tasmania’s representation on the Australian Apple and Pear Board.
The board has been operating for some 22 years. Shortly after it commenced its functions it experienced a number of trying years. It undoubtedly suffered from teething troubles, and in addition, it had a very difficult time during the war years. One must pay a tribute to the board for the way in which it has performed its functions, both in the early years and also during the Second World War. During the war period it had the task of disposing of 13,000,000 bushels of apples and pears. At that time, overseas markets were closed to us, mainly because of a shortage of shipping. The board purchased the apple and pear crop and was obliged to dispose of it as best it could. 1 commend the Government for its decision to increase the Tasmanian representation on the board. Under the bill, a member to represent the growers of northern Tasmania will be appointed, in addition to the two members who represent the growers of southern Tasmania. That is most desirable. The north and northwestern areas of Tasmania are important centres of apple and pear production, and, as 1 have said, it is most desirable that those parts of the State should be directly represented on the board. Tasmania has been producing considerable quantities of apples and pears for many years. This crop is essential not only to the economy of Tasmania, but also to that of Australia. Perhaps 1 will be permitted, Mr. President, to give some figures which relate to the Tasmanian apple and pear crop over a period of five years. During that time, Tasmanian exports of apples and pears have represented 61.5 per cent, of our total exports of those fruits. The significance of that percentage can be appreciated when we see that Victorian exports represented 17 per cent, of total exports; those of Western Australia, 16 per cent.; those of South Australia, 4 per cent.; and those of Queensland .2 per cent. Having regard to those figures, and in view of the fact that Tasmania produces a greater proportion of Australia’s apple and pear crop than any other State, the increased representation proposed by the bill is quite justified.
There is one clause of the bill with which 1 am not particularly happy. I refer to clause 7, which provides, amongst other things, that the board shall open and maintain an account or accounts with the Reserve Bank of Australia or with such other bank or banks as the Treasurer approves. I feel that that is not a good provision. A board which is set up under the authority of the Government, as is the Australian Apple and Pear Board, naturally should bank with the Commonwealth Banking Corporation, or with that section of it known as the Reserve Bank of Australia. I ask the Minister why the Government has seen fit to insert this provision in the bill, and I hope that he will give me an answer when he replies to the debate. 1 congratulate the Australian Apple and Pear Board on the success of its activities over the years. I believe that it has done a particularly good job in finding markets, despite the limited funds available to it, and in publicizing our apples and pears overseas. There is much more to be done in that regard. Another bill which deals with those activities of the board will come before the Senate at a later stage, and I shall defer my comments in this respect until we are discussing that measure.
I also wish to pay a tribute to the State Fruit Board of Tasmania and particularly to Mr. Windus Smith, who is most active in the interests of Tasmanian apple and pear growers. He knows the problems with which the growers are faced because he is a grower himself, i have been informed by Mr. Smith that the State Fruit Board of Tasmania fully supports the bill now before the Senate. 1 have also been in touch with the Government of Tasmania, which has informed, me that it supports the proposal to give Tasmania additional representation on the Australian Apple and Pear Board. The Opposition supports the bill, Mr. President, and I trust that speakers from the other side of the chamber will be as brief as I have been.
.- In the southern part of the lovely island of Tasmania, apples are an important crop. Pears are relatively important, too. This bill deals almost exclusively with the Tasmanian representation on the Australian Apple and Pear Board. I think that the main essential in discussing the bill is not brevity but an understanding of the purposes of the measure. I bring to the attention of the Senate the fact that Tasmania is responsible, according to figures that have been given to me, for 69 per cent, of our exports of apples and pears. It has long been the contention of Tasmania that its representation on the Australian Apple and Pear Board should be restored to the original four members. Some years ago, the representation was reduced to two members, each other State of the Commonwealth being represented by one grower member.
I am pleased that the Minister for Primary Industry (Mr. Adermann) has accepted the representations of the State Fruit Board of Tasmania that Tasmania’s representation should be increased from two members to three members. The additional representation will increase the total number of board representatives to thirteen. Even with the additional representation, it can be seen that Tasmania’s representation will not be fully proportionate to its significance in the industry. That part of the bill which proposes to increase the number of Tasmanian representatives on the board merits complete support. There is, however, a part of the bill which provides that the members representing growers in the State of Tasmania shall be growers and shall be appointed upon the nomination of the State Fruit Board of Tasmania. I point out that all other representatives of growers on the Australian Apple and Pear Board are elected by producers in the various States. I should have been happier if the federal board had been consulted about the alteration of the method of appointment or election of Tasmanian representatives.
– Do not the growers elect their representatives on the State Fruit Board of Tasmania?
– I will deal with that position later. This bill has not been referred to the federal board for consideration. There is no suggestion that it needs to be, but I should have thought that before altering the method of election or appointment to the federal board, its views would have been sought.
One reason advanced for the need to alter the method of election or appointment is that the chairman of the State Fruit Board of Tasmania is of the opinion that it is idle to have three members on the board representing one State unless their views coincide. When I point out that this method of appointment from Tasmania was approved by a majority vote of five to four on the State Fruit Board, one can see that disquiet increases with the proposal that the State board should have the right of nominate the three Tasmanian representatives to the federal board. I fear that that proposal will deprive the growers of the right of electing their representatives to the federal board. The constitution of the federal board is based on direct election of grower representatives by the apple and pear producers of the various States. I do not think it is valid to say that the three Tasmanian representatives on the board should hold unanimous views. If the three Tasmanian grower representatives hold unanimous views on any proposal that is before the federal board, well and good, but I think that they should exercise their judgment in particular matters that come before them on the federal board according to their experience in the industry. I cannot see how abandonment of election and substitution of nomination by the State Fruit Board will ensure unanimity because at present in respect of most matters the
State board is divided five to four. I cannot accept the principle that nomination by the State board should be substituted for direct election by the growers. Those remarks are directed specifically to clause 3 (b) of the bill.
The present representatives of Tasmania on the federal board are worthy men. They are Mr. W. A. Smith, chairman of the State Fruit Board of Tasmania, and Mr. Douglas Calvert, who is a very experienced, successful and efficient grower from the Huon valley. The term for which those gentlemen were elected to the federal board would ordinarily expire in June next but under clause 9 of the bill their period Of office will be deemed to have expired on 1st January next. It is a simple matter to arrange such a transitional provision, but my disquiet about this matter was increased when I learned from Mr. Calvert last night that he had not heard of the proposal to terminate prematurely the period of office for which he was elected. I know that these matters will appear to many honorable senators to affect a small locality, but they do concern an industry in which all Tasmanian senators, I am sure, have a very keen and proud interest. I speak with respect about the views held by representatives of the growers on the federal board. I speak with gratitude of the work that those representatives have done for the growers and I regret very much the discourtesy that has been shown to at least one of them in providing that, without prior consultation, his term of office shall expire on 1st January - six months earlier than expected.
I support the motion for the second reading of the bill.
– .1 want to say a few words on behalf of the Western Australian Fruit Growers Association (Incorporated). This bill is designed to increase by one the number of representatives on the Australian Apple and Pear Board, making a total of thirteen representatives. Tasmania is to have an extra growers’ representative on the board. We know that some years ago the Tasmanian growers’ representatives on the board numbered four. A few years later the number was reduced to two. Because Tasmania grows -65 per cent, of our apple and pear exports, the Government has decided to increase Tasmania’s representation on the board by one. I do not think anybody will quibble with that or oppose it. However, I have been asked by the Western Australian fruit growers association and the Western Australian Fruit Shippers Committee to voice the disapproval of those organizations with the manner in which representation on the board has been increased. The Western Australian organization claims that neither they nor the Australian Apple and Pear Growers Association were approached about this proposal. Those bodies wish to register strong disapproval of the action taken by the Government to increase representation on the board. They oppose the way that it has been done. I understand also that the other mainland States have received advice of the Government’s intention to increase the Tasmanian representation on the board. I believe that the board, as reconstituted, will consist of three Tasmanian growers, one representative from each of the other States, three representatives from the fruit exporters association, one person appointed by the Commonwealth, who will be the chairman, and a representative of the employees, making a total membership of the board of thirteen persons. We do hope that if in the future the Government again decides to alter the constitution of the board by varying the number of members, it will first approach the grower organizations of the States and obtain their approval.
Before concluding, I should like to say that the Western Australian fruit-growers association and the Western Australian Fruit Shippers Committee have no objection at all to Tasmania having an extra fruitgrower on the board; they object only to the way in which this has been done. I should like to say on behalf of those organizations that they hope that the Government will not in future vary the constitution of the board until it has obtained the approval of the State organizations.
– I should like to say a few word’s on behalf of the Tasmanians, who, I am sure, will welcome the appointment of an additional Tasmanian member to the Commonwealth Apple and Pear Board. This matter has been canvassed for a number of years; it is not a new matter. I am glad that Senator Scott has said Western Australia has no objection to the proposal. It is a government decision that has been taken, because it is solely the prerogative of the Government to determine the number of members it wants from each State to be on the board. As this matter has been so freely canvassed for many years, I do not think that the growers in any fruit district would be unaware of Tasmania’s aspirations. As 65 per cent, of the apple export industry is located in Tasmania, it was not unreasonable for that Stats to seek a representation of five members in a reconstituted board of fourteen members. 1 am glad that the Government has granted Tasmania’s wish.
Representations on the matter of appointment to the board were received by the Government, and considered. I point out that the State board was appointed by a vote of the growers. I understand that the the northern growers voted for their representatives and1 the southern growers - who grow a greater quantity of fruit than the growers in the north - voted for their representatives. The growers having appointed their representatives to the State board, it was felt that it should be that board’s function to seek to have the growers’ representatives - two from the south and one from the north - appointed to the Commonwealth board. That was the view that the State Government and the Tasmanian board held, I understand. Another viewpoint that was advanced1, and which was considered by the Government at the time, was that elections should be held by the growers themselves in the two areas I have mentioned for appointees to the Commonwealth board - two members from the south and1 one from the north. The Government came down on the side of established practice in all States, namely, that the State fruit board itself should nominate the State’s representatives on the Commonwealth fruit board.
I feel that this bill is a step forward and that it will be of great assistance to the fruit industry in Tasmania to have an additional representative on the Commonwealth board.
Senator GORTON (Victoria- Minister once more to have brought in a bill which has received the approbation of honorable senators on both sides. Senator Poke has referred to the alteration in the banking provisions. The provision in this bill merely means that the Apple and Pear Board may open an account in the Reserve Bank or such other banks as the Treasurer approves. The object of this provision is merely to bring this legislation into line with acts relating to statutory marketing board’s, which in many instances run accounts with the Commonwealth Trading Bank, as I pointed out during the consideration of the last measure of this kind of which I had charge in this chamber. It is necessary for a statutory board to be able to bank not only with the Reserve Bank but with the Commonwealth Trading Bank or, indeed, if it suits its purpose and the Treasurer approves, with some other bank.
Senator Wright has referred to alleged discourtesy to a Mr. Calvert, who is a member of the Tasmanian Fruit Board. We were informed1 by Senator Wright that when he rang Mr. Calvert last night, Mr. Calvert indicated that that was the first he had heard that his appointment was to be terminated in January instead of in June. The fact of the matter is that Mr. Calvert is a member of the State Fruit Board, having been elected to it by the growers of Tasmania, and that that board of which he is a member, knowing what was proposed in the bill which is now before the Senate, wrote to the Commonwealth Government through the Tasmanian Minister last October asking it to bring in this bill before 31st January. So if Mr. Calvert did not know about it, then he did not know of an action taken by the board of which he is a member. Further, I would point out that the terms of the bill ought to have been known without that, because the measure was introduced into the House of Representatives last Wednesday.
Senator Wright also objected to the procedure whereby the State Fruit Board nominates members from Tasmania to the Commonwealth Board. It is quite true that members from other States are not nominated by State fruit boards, but are elected by the growers. The reason for that, of course, is that no other State has a fruit board. But all State boards dealing with other primary products, whether they be eggs or wheat or other products, nominate the members that they want to be on the Commonwealth boards relevant to their particular industry. Not only is there no departure from the normal practice in these matters, but also, as Senator Poke pointed out, the members of the Commonwealth board will be elected by a State board which consists, I believe, of nine members, all of whom are elected by growers. It is a board upon which only growers’ representatives are seated. This would appear to me to be a reasonably democratic way of ensuring that Tasmanian growers are properly represented by delegates to the Commonwealth board.
The bill will bring the representation of Tasmanian growers on the Commonwealth board up to three out of eight, not to three out of fourteen. When we talk of the board as a whole we must bring in the exporting representative from Tasmania and the employees’ representative who - this is fortuitous at the moment - is also from Tasmania. I am unable to follow the suggestion, which does not appear to be founded on the bill but which was apparently communicated to Senator Wright by a Victorian member of the board, that it is necessary to have unanimity among the Tasmanian representatives.
– Not a Victorian member of the board, but the chairman of the Tasmanian board.
– That man has a perfect right to express his opinion, but there is nothing in the bill to suggest that unanimity is required. The views of both the north and the south of Tasmania, and of Tasmanian growers generally, will be represented by growers who are elected by a board which is elected by growers, as is the case with other boards of a like kind.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Debate resumed from 1st December (vide page 1957), on motion by Senator Gorton -
That the bill be now read a second time.
.- It is regrettable that this bill, which is for the purpose of increasing the levy payable by fruit-growers, should have to come before the Parliament, because fruit-growers throughout the Commonwealth are having a rather difficult time financially. The bill will permit a maximum increase of 4d. in the levy that is paid on each case of apples and pears exported. I realize that the State Fruit Board of Tasmania, which is representative of the growers, has approved of the proposal, but one can attribute this increase in costs to the failure of the Government to arrest inflation. The present levy on apples and pears exported is 2d. a case. It returns about £40,000 a year. If the maximum increase of 4d. were applied, the revenue from the levy would be. about £120,000. Thus an extra £80,000 would be paid out of the pockets of growers to the Australian Apple and Pear Board. That is a considerable sum of money to go out of any one industry.
When the charge was first imposed in 1938, it amounted to id. The levy was increased later to1d. and in 1957 to 2d. About 1,200 or 1,300 Tasmanian growers are involved, so quite a large part of the money raised will come from them. One is fortified by the knowledge that the money raised by the levy will be used for sales promotion and the finding of new markets, which are essential for Tasmania and for the Commonwealth generally.
A very pleasing feature is that research is to be conducted into pests, diseases and other problems of the industry. One thing which gives particular concern to growers in southern Tasmania is the damage done to apple and pear crops by hail storms, which have been particularly severe over the past few years. Many orchardists lose the whole of their crops because of the hail storms that sweep the fruit-growing areas from time to time. If it were not for the fact that the Tasmanian Government has made some provision for insurance against hail damage, many Tasmanian growers would have to leave their orchards, because of the losses they have sustained, and the apple and pear industry in Tasmania would be in its death throes. The Commonwealth Government should, I think, make some provision for financial assistance to growers whose crops are ruined by the elements. However, that is only a suggestion and in spite of the criticism I have expressed the Opposition does not oppose the bill.
.- The bill seeks authority from the Parliament to give the Australian Apple and Pear Board power to make regulations increasing the export levy on apples and pears to a maximum of 6d. a box. As I understand the bill, it does not impose a levy of 6d. a box, fortunately, but it gives the board the right to impose a levy up to the permissible maximum which the bill increases from 2d. a case to 6d. a case. I understand that the reason for that increase being recommended by the federal board is that it considers that a sales promotion scheme for apples is necessary.
– How many pounds are there in a box?
– I thought it was 40, so I will accept Senator Cole’s figure.
– What size case is it?
– I suppose it is an export case, is it not?
– 1 do not know.
– It is about 40 pounds without the case.
– If we look at the report of the Australian Apple and Pear Board for the year ended 30th June, 1960, we see that the number of boxes of apples exported to the United Kingdom in that year was 3,088,654. Smaller quantities were exported to Germany, Sweden and other Continental countries. I mention that figure in order to indicate that the cost of this levy will represent quite an impost on the industry. If the levy does get to the figure of 6d. a case, that will be quite a substantial impost on the industry. Senator Poke has referred to the hail scheme. In the last few years the frequency of hail storms has increased surprisingly. Although the Tasmanian Government makes a contribution, quite a substantial levy is imposed upon the growers to defray the cost of that scheme.
Costs are increasing. What is the result on the market? The report of the board shows that in 1958 the average forward selling price for Tasmanian apples was 33s. 7d. sterling a box. That price was reduced in 1959 to 31s. 6d. and in the recent season to 29s. 8d. It is quite understandable that the board is looking forward to the necessity of a sales promotion scheme because in the board’s report one reads with some anxiety of the very significant increase in the apple crops in Italy, South Africa and the Argentine. It is interesting to note that in 1958-59 the production of apples in Italy amounted to 1,601,000 tons, compared with 1,194,000 tons in 1955-56, 846,000 tons in 1953-54, and only 269,000 tons in 1934-38.
– Italy would not be a dangerous competitor, because it is in the Northern Hemisphere.
– There is an important point in regard to Italy. With the great increase in refrigeration space and gas chamber cooling, the Italians have proved that they are capable of keeping their apples for the European off-season. In the Southern Hemisphere, the South African apple crop is expected to reach 13,000,000 bushels by 1970, compared with a current production of about 5,000,000 bushels. The board, in its report, refers to new plantings in that country, which are quite striking. A similar expansion has taken place in the Argentine, where the production is now very close to 100,000 tons, compared with a negligible 4,000 tons pre-war. So, one is not surprised that the federal board is looking ahead and seeing the need to put emphasis upon promoting sales in Europe.
I share Senator Poke’s regret that in an export industry such as this, with quite small returns, further imposts become necessary. It is quite obvious that this increase is an additional load to be carried, which the proposed expansion has to take up. I know that the recommendation for this increase comes from the federal board and I believe it is supported by the fruit board of Tasmania and the representatives of other States on the federal board. I therefore support the bill.
– I rise to make a few remarks on this bill, which proposes to increase the maximum levy on exports of apples and pears from 2d. a case to a maximum of 6d. a case. The growers in Western
Australia believe that at the present time the levy should not exceed 4d., but they are in accord with the legislation which makes the maximum rate 6d., on the understanding that the regulation governing this matter, when it comes into operation, will not be any more than 4d. for the next year or two. I believe that the Government will have to look at this industry very closely if we wish it to survive. Senator Wright has cited figures from the annual report of the Australian Apple and Pear Board, which gives in sterling the prices that have been obtainable in England over the last three or four years. In those figures we notice that the price is falling year by year. I think Senator Wright mentioned that three years ago the price was about 35s. sterling a case and in 1959-60 the price fell to 29s. sterling a case.
At present the fruit growers in Western Australia are receiving an amount of 18s. Australian, free on rail, for Dunns and Cleopatras, and the central packing sheds in Western Australia charge 9s. 6d. a bushel for packing apples and putting them on the rail.
– That includes the case.
– The prices I quoted were c. and f.
– Yes, I know. The charge is roughly 9s. 6d. a bushel for packing, providing the case, paper and cardboard, and putting the case of fruit onthe rail. If that 9s. 6d. is deducted from the 18s., it leaves 8s. 6d. for the grower not only to grow the apples but also to plant his orchard and bring it into production. An orchard takes several years to come into production.
– How many years?
– Five or six years?
– You would not get much from an orchard five or six years old. It is seven or eight years before the trees really bear. Therefore you have a long wait. The 8s. 6d. has to cover the interest on capital while waiting for a crop, as well as the cost of pruning, spraying and cultivating the orchard, picking the fruit and cartirg it into the shed. At the present price of fruit, no one in Australia can make money by growing Dunns and Cleopatras.
We must be very careful about this export levy. If we were to increase the levy from lid. a case - which produces £40,000 a year - to 6d., or even only to 4d., the amount of the increase would be more than anybody is making out of apples at the present time. Other industries receive support from the Treasury. During this present Budget session, or possibly the previous Budget session, the Senate passed a bill dealing with the promotion of the sales of beef. A levy of 2s. was imposed on the carcass of every beast killed which exceeded 200 lb. in weight. The Commonwealth Government subsidized that levy on a 50-50 basis, making a total of 4s. The idea of that levy was to pay for research into the beef industry. In his second-reading speech, the Minister said that it was the intention of the board to carry out scientific research into fruit production and the control of diseases in the industry. Although the Government is subsidizing research into the beef industry on a 50-50 basis, the fruit industry - which, at the present time, is dying in Australia - is to receive no support. Increases in production overseas and increased costs of production in Australia, including an increase in freights in the coming year, will cause our fruit industry to fail unless there is some price support plan to keep it going.
Senator Wright mentioned the quantity of fruit that is grown overseas and he referred to South Africa, the Argentine and, I think Italy. Italy is very close to the European market. As a result of scientific research, apples are stored for much longer in Europe now than was the case in the past. More cool storage space is available for apples. In his second-reading speech the Minister said that 60 per cent, of the fruit grown in Australia is sold in England and that it is the intention of the board to carry out a sales promotion campaign in an endeavour to increase the quantity of Australian fruit sold in England. I hope that that campaign will be successful. I warn the Minister that if the price paid for our fruit overseas falls in the next few years as much as it fell during the last three years, and if the cost of producing a bushel of fruit increases at the same rate as it has increased in the last three years, the fruit industry of Australia is doomed to extinction. We will grow only the quantity of fruit which we can sell within Australia. If growers take the risk of planting more apple and pear trees in the hope that they will be able to sell the fruit at a reasonable profit, they are far more optimistic than I am.
I hope that the board will be successful in increasing the sales of Australian fruit overseas and that the publicity and sales promotion programme that is to be carried out will help the Australian growers to obtain better prices in England and in Europe for the fruit they are producing and hope to sell.
– in reply - I should like to reply first to Senator Poke’s suggestion that this increased levy has been brought about as the result of inflation in Australia. It has not been brought about as the result of inflation but as the result of a realization by the growers that a much more extensive sales promotion programme is necessary if the quantity of apples sold overseas, and the prices obtained for those apples, are to be increased. As was pointed out by Senators Wright and Scott, the competition which this country is facing in the markets of England, and of Europe generally, has increased and possibly will increase further.
Australia is the largest exporter of apples to the United Kingdom, yet it is spending much less on publicity and promotion than South Africa and New Zealand, its major competitors in that market. Consequently the fruit industry, through its board, has decided that a promotion campaign is necessary and that in order to finance that campaign the present levy should be increased. The Commonwealth Fruit Board asked that the levy be increased for this purpose, and it has the support of every appropriate growers’ organization in every State. The growers realize the importance of advertising and promotion.
I should like to advert to a remark made by Senator Scott. He said that the Commonwealth Government subsidizes on a £l-for-£l basis a levy imposed by the beef industry, but that is not so. In point of fact, the Commonwealth Government does not support on a £l-for-£l basis the promotion campaign of any industry, including the beef industry. It is for promotion that 4his levy is to be used.
– And research.
– My second-reading speech indicates that the board wishes to examine the possibilities of setting up a research body which will inquire into pests and diseases in apples. If the industry set up such a body, it would be in a position similar to that of the beef industry and could apply to the Commonwealth Government for assistance for that purpose. The Commonwealth Government is not subsidizing any industry for the purpose of carrying out a sales promotion campaign.
The board has recommended that, although the maximum rate of levy under the legislation should be 6d., a levy of 3id. be imposed for the year 1961. The board believes that, with a levy of 3id., it will be able to carry out the objectives which it had in mind when it asked the Government to introduce this legislation.
There is very little more that I need to say. In case any honorable senators are under a different impression, I should like to make it clear that the board, including all the Tasmanian grower representatives, wrote to the Commonwealth Government and asked that this levy should be introduced as soon as possible. I say that in case any one thinks it has been done without consultation with the board. We all regret to some extent the need to increase a levy for promotion purposes. But I am sure we all agree that the returns to the fruit-growers as a result of the increase will be many times the amount of the levy that they have agreed to impose upon themselves.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without requests or debate.
– I lay on the table a report by a Deputy Chairman of the Tariff Board on the question as to whether temporary duties should be imposed on imports of flax canvas. Mr. President, I ask for leave to make a statement in connexion with this report.
– Is there any objection? There being no objection, leave is granted.
– Honorable senators will recall that in August last legislation was introduced into the Parliament to enable temporary duties to be imposed to accord interim protection to an industry while its case for new or increased protection is being considered under the normal Tariff Board machinery. This legislation was necessary to provide relief to an industry which could demonstrate that, unless holding action were taken, it would suffer serious damage pending the normal inquiry and report by the Tariff Board.
Following representations from a panel representing the manufacturers of flax canvas, my colleague, the Minister for Trade (Mr. McEwen), referred to the Tariff Board on 2nd November, 1960, for advice by a deputy chairman, the question as to whether temporary assistance should be granted to the industry. In his report the Deputy Chairman has concluded that the industry would not suffer serious damage before the board’s report, resulting from its full inquiry, could be received and1 considered by the Government.
In committee: Consideration resumed from 5th December (vide page 2058).
Clauses 1 and 2 agreed to.
I should like to submit to the committee some proposals which are animated by the desire, first, that all the Opposition’s amendments shall be considered and, secondly, to expedite the debate without curtailing it in any way. My idea is to put the Opposition’s viewpoint briefly and, as far as I can, adequately. The third objective I have in mind is to prevent honorable senators having to cross the chamber 41 times. The amount of time and energy involved in that exhibition of pedestrianism would be very considerable.
If those proposals are acceptable to the committee, I suggest that they may lead to a saving of time without curtailing debate and that they would enable decisions to be made without the need for honorable senators frequently to cross the chamber.
The CHAIRMAN (Senator the Hon. A. D. Reid). - The committee has heard the suggestion that has been made by the Leader of the Opposition. With the concurrence of honorable senators, that procedure will be adopted for the consideration of the Crimes Bill in committee, subject, of course, to the contingencies that may arise from time to time.
Clauses 3 to 12 - by leave - taken together, and agreed to.
Clause 13 agreed to.
Proposed new clause, and clause 14 (Opposition amendments Nos. 1 and 2).
Proposed new clause.
Section proposed to be amended - 12a. - (1.) Any proceeding in respect of an offence against this Act, although declared indictable, may, with the consent of the defendant, be heard and determined by a Court of Summary Jurisdiction. (2.) A Court of Summary Jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an offence against this Act, although declared to be indictable, if the offence relates to properly the value of which does not exceed Fifty pounds.
Section twelve a of the Principal Act is amended by adding at the end thereof the following sub-section: - “ f4.) Notwithstanding the preceding provisions of this section, an offence against section twentyfour, twenty-four aa, twenty-four ab or seventyeight, or sub-section (2.) or (5.) of section seventy-nine, of this Act is punishable only on indictment.”.
– I move - (Opposition amendment No. 1.) After clause 13, insert the following new clause: - “ 13a. - Section twelve a of the Principal Act is amended by omitting sub-section (2.).”. (Opposition amendment No. 2.) In clause 14, leave out “ or seventy-eight, or sub-section (2.) or (5.) of section seventy-nine, of this Act “, insert, “thirty-two, thirty-three, thirty-seven, fiftytwo, fifty-three, fifty-four, fifty-five, fifty-six, fiftyseven, fifty-eight, fifty-nine, sixty, sixty-nine or seventy-eight, or sub-section (2.) or (5.) of section seventy-nine, or section eighty-six of this Act or an attempt to commit any offence against the foregoing sections “.
Section 80 of the Constitution provides that a prosecution on indictment shall be tried by a jury. That does not prevent an offence described in an act as indictable - that is, capable of being prosecuted on indictment - from being prosecuted summarily, from being tried before a magistrate without a jury. Section 12a of the principal act, which it is sought to amend, deals with offences punishable summarily although they have been declared by the act to be indictable.
If honorable senators will refer to section 12a they will see that it has three sub-sections. The first sub-section allows summary prosecution, if the defendant consents, although the offence concerned may be indictable. There can be no objection to that. It is entirely beneficial. That procedure is availed of, to my knowledge, quite frequently in circumstances in which a public servant has committed an offence. It may be thought that, with the limitation imposed by sub-section (3.), there would be a penalty of imprisonment for not more than one year or a fine of not more than £100, with loss of employment, superannuation, furlough and the rest, as well as the difficulty of finding other employment in the circumstances, which would be a very heavy punishment for a convicted defendant. In those circumstances it might be thought that the limit imposed by subsection (3.) would be adequate. That provision is quite beneficial.
The effect of sub-section (2.) is that if the prosecutor so requests and the court agrees, then, regardless of the wishes of an accused person or the request of his counsel, the court may proceed to hear a case summarily although the offence is declared to be indictable. The first amendment of the Opposition proposes to delete that provision. The second amendment relates to an addition that the Government has caused to be made to the Crimes Act. At the moment, I shall concentrate on the first amendment, which proposes to delete the sub-section to which I have just referred.
The original bill did not deal with section 12a at all, but in the Opposition amendment to the motion for the second reading in another place, reference was made to the fact that serious crimes, such as treason, treachery, sabotage, espionage and breach of official secrets, could be dealt with summarily if the property involved was of a value of £50 or less. In other words, crimes against society of terrific import and of a most serious character which would, if established in the courts, denigrate the accused in the eyes of his fellows for all time, could be tried summarily if the offences related to property worth £50 or less.
– That was under the original act?
– Yes. Although the Government had not, in the first place, sought to amend that provision, when attention was directed to the matter in the Opposition’s amendment to the motion for the second reading in another place, the Government looked at the question of trial by jury and brought in a provision which provides that the five serious offences I have just mentioned may not be tried summarily and may be tried only on indictment. That is very acceptable so far as those offences are concerned. That provision is now enshrined in the bill as it has come to the Senate. It appears in new clause 14, which provides that, notwithstanding the preceding provisions of section 12a of the act, an offence against the section relating to the five offences I have just mentioned shall be punishable only on indictment.
Our objection has therefore been removed in relation to those offences; but the view of the Opposition is that although that is an excellent concession, it does not go far enough and does not reach the point at which the Opposition is aiming. I refer honorable senators to sections 24c and 24n of the act, which deal with sedition. Although the penalty provided is limited to imprisonment for three years, trial by jury is assured to the defendant by section 24e. which provides, in sub-section (2.) -
If any person who is prosecuted summarily in respect of an offence against either of the last two preceding sections, elects, immediately after pleading, to be tried upon indictment, the court or magistrate shall not proceed to summarily convict that person but may commit him for trial.
So, for the trial of that offence it is unquestionable that a jury is guaranteed, just as it is in respect of the other five cases adverted to in the Government’s amendment to the bill. But there are other offences which, if they relate to property of a value of £50 or less - very serious offences attracting sentences, as I shall show, of imprisonment for from two years up to ten years - fall within the scope of sub-section (2.) of section 12a. of the existing act. The right of the accused to be tried by a jury may be denied if the offence with which he is charged relates to property of a value of £50 or less.
I wish to refer briefly to a few of the offences I have in mind. First, I mention the crime of judicial corruption which is referred to in section 32 of the principal act. I direct attention to the fact that in paragraph (a) the word “ property “ is used. The section reads in part -
Any person who -
being the holder of a judicial office, corruptly asks, receives or obtains . . . any property-
That is the word I underline - or benefit of any kind for himself . . . shall be guilty of an indictable offence.
The penalty provided for that offence is imprisonment for ten years. That provision deals with judicial corruption. Section 33 of the act deals with official corruption and again the word “ property “ is used. The section reads -
Any person who -
being a judge or a magistrate not acting, judicially . . . receives . . . any property . . shall be guilty of an indictableoffence.
The penalty is imprisonment for ten years.
– Not if he is tried’ summarily.
– That is so. i made that point clear at the outset. I referred to the penalty as indicating the seriousness with which the legislatureregards the offence. It has provided a maximum penalty of ten years’ imprisonment. Whilst the legislature was careful toensure trial by jury to a man charged with sedition - an offence which would not: involve property and perhaps does not provide a relevant argument - trial by jury can be denied in a case attracting a penalty of up to ten years’ imprisonment if the value of the property is £50 or less. That is our complaint.
Sections 51 to 62a deal with offences relating to the coinage. The penalties provided for the various offences range from two years’ imprisonment to ten years’ imprisonment. Conspiracy is dealt with in section 86 of the act. The penalty provided is three years’ imprisonment. All those offences are expressed in the act to be indictable. Under our Acts Interpretation Act, every offence for which the penalty exceeds six months’ imprisonment is an indictable offence. So all those offences to which I have referred, whether they are expressed in the Crimes Act to be indictable or not, are in fact indictable offences and therefore serious. Accordingly, the Opposition considers that individuals charged with offences of that nature should have recourse to trial by jury. Trial by jury is a great right established in our law and is not lightly to be denied. 1 point out that the holder of the highest judicial office in the land, if accused of accepting a bribe of £50 to procure an improper result in a case before him, could be dealt with by a magistrate under subsection (2.) of section 12a of the act, even though he may desire trial by jury and even though his counsel may request it. The case that I have cited is an extreme case, but it is possible under the existing act.
I pass now to amendment No. 2. The Government, by amendment in another place, provided that a jury should be available to persons charged with the five major offences to which 1 referred. The effect of our amendment No. 2 would be to add to those five offences the offences of judicial corruption, official corruption, conspiracy and the indictable offences relating to coinage. The Opposition has selected only the offences expressly declared in the act to be indictable. The other indictable offences in the act are not included in our proposal.
The Opposition also seeks trial by jury for the offences of attempting to commit treason or attempting to commit sabotage. In our view this matter is quite important.
Section 7 of the act deals with attempted offences and states -
Any person who attempts to commit any offence against any law of the Commonwealth, whether passed before or after the commencement of this Act, shall be guilty of an offence and shall be punishable as if the attempted offence had been committed.
In the view that I take an attempt to commit treason does not automatically become treason. The new offence of attempting to commit treason is constituted. Although section 7 says that the offence of attempting to commit treason shall be punishable as if it were treason, in our view an entirely new offence is created and should carry with it trial by jury.
– Order! The honorable senator’s time has expired.
– I would like to deal with the Opposition’s first amendment, because I do not think it is on all fours with amendment No. 2, although there is some relevancy. As far as I can see the Leader of the Opposition (Senator McKenna) is suggesting that summary trial should be availed of in a very restricted class of cases and then only with the consent of the defendant. I think I would be right in putting that as the effect of the Opposition’s proposition.
– In indictable cases.
– Yes. I suggest that that proposition cuts across what is fairly well accepted procedure in relation to similar offences in the States. The principle of summary trial for indictable offences - minor indictable offences - is an old and well-established principle. It is followed by all the States; the laws of each of them contain provisions as to property limits similar to that contained in the Crimes Act. It would be unique if the Commonwealth had a law different from those of the States in respect of indictable offences tried summarily. It is desirable for the States and the Commonwealth to have, as far as possible, similar procedures in regard to this aspect of the administration of justice.
The next point that I wish to make is even more important than my first point. The section of the act which the Opposition is seeking now to repeal includes a very important word. The section gives a discretion to a magistrate in respect of indictable offences tried summarily. Section 12a (2.) states -
A Court of Summary Jurisdiction may, if it thinks fit, upon the request of the prosecutor. . .
The sub-section does not say “ shall on the request of the prosecutor”; it says “may on the request of the prosecutor “. That provision is on all fours with the procedure in the States with respect to minor indictable offences, where the magistrate is given a judicial discretion. The discretion must be exercised judicially and not capriciously. Having heard the charge or having become aware of the nature of the charge, the magistrate may determine whether it should be tried summarily or whether it should go to a jury.
I think, Sir, that this rs the important consideration involved in this connexion and 1 think the principle should be retained that in this restricted class of cases - only those cases that relate to property not exceeding £50 in value - a magistrate should have a judicial discretion as to whether the case shall proceed to a jury or not. I know that in Western Australia that has been the normal procedure in cases involving less than a certain amount. The court has discretion in deciding whether a case shall or shall not, may or may not, go to the jury. So when my friend the Leader of the Opposition does quote the possible evils that flow from this provision, which, of course, has been in the Crimes Act since 1926, and refers to the matter of official corruption or judicial corruption as being a case that could, where the amount involved was under £50, be triable summarily, I point out that a magistrate has a judicial mind usually, and in a case of judicial or official corruption I think it would be most unfortunate if he exercised it in the wrong way in determining whether a case, even for a very small amount, should or should not go to a jury. If the Opposition’s proposal were accepted, we would be taking away from the court judicial discretion, and that is a most desirable thing to leave to the court.
I do not think we should be so rigid in our procedure in respect of the administration of justice as to make it completely water-tight for a court to determine these cases, either that they should be treated summarily or go to the jury, because I think it would take away from the court the discretion which is so desirable. For some centuries English-speaking countries have been trying minor criminal offences which would otherwise be indictable summarily before magistrates. It is a very well established principle that that should be so. To take that discretion from the court, I suggest, is wrong. That discretion, if judicially and properly exercised, acts just as much in favour of a defendant as it does so far as the prosecution is concerned. It does have certain advantages where the case is a minor one, and I think the decision as to whether the case is minor or not is well left in the hands of the court.
– Is Senator McKenna saying that the defendant should have the option?
– The option is already here.
– I thought it was the discretion in the court.
– No, in a certain class of case the defendant has the option already.
– What option has he got under sub-section (2.)? He has no option.
– I do not suggest that he should have the option in respect of these minor indictable offences. I suggest that Senator McKenna’s amendment would take from the court the right to exercise discretion.
– Will you say something about taking away from the accused the right of choice between summary trial and jury trial? Will you consider that aspect?
– Let us start with respect to the cases to which this provision applies. It applies in the first place to cases relating to property the value of which does not exceed £50. It cannot apply to a certain specified group of cases in pursuance of clause 14 of the present amending bill which, I think, should be referred to. Under clause 14 of the bill, section 12a of the principal act is amended by adding a new sub-section.
Sitting suspended from 5.45 to 8 p.m.
– I was discussing the first amendment of the Opposition. I want to make a final point with reference to the suggestion by the Leader of the Opposition that there should be no discretion in the court in relation to some minor offences. Perhaps I could summarize my argument by saying that the provisions of the act, taken in conjunction with the provisions proposed by the bill, leave the situation like this: There is an unqualified obligation for a trial to be held upon indictment with respect to the more serious offences, however minor they might seem, referred to in clause 14. This clause proposes the addition to section 12a of an important sub-section, reading as follows: - (4.) Notwithstanding the preceding provisions Of this section, an offence against section twentyfour, twenty-four aa, twenty-four ab or seventyeight, or sub-section (2.) or (5.) of section seventynine, of this Act is punishable only on indictment.
Those offences comprise a very large proportion, and certainly the most serious, of the possible offences under this act. They relate to such offences as treason, treachery, sabotage, espionage, and offences relating to official secrets. The legislation excludes from the possibility of a summary trial those indictable offences, however minor they might appear to be, which do not relate to property. I think that the Leader of the Opposition would agree that that is most desirable. That narrows the argument we are now having to indictable offences relating to property, where the value of the property does not exceed £50. I said before the suspension of the sitting that in all Stales offences in relation to property were very properly left to the discretion of the court. I want to correct that. I understand that this position does not apply in one or two States; it certainly applies in the larger States.
Under the clause as worded, although the prosecution may request a summary trial of charges in respect of property of a value lower than £50, it is still in the court’s discretion to decide. I suggest that that is a proper discretion for the court in the circumstances. In some States there is not even a discretion with respect to offences relating to property of a value of less than £50. Those offences are now triable and punishable in courts of summary jurisdiction. So in that respect the proposed amendment and the present act are, I think, quite fair. If I am wrong in that submission, I suggest that the Leader of the Opposition is a little wider of the mark than even I am in suggesting that no offences should be triable and punishable summarily except at the request of the defence.
– 1 should like, if I am able, to clear the ground of what I think are some misconceptions which become apparent from the speech of the Leader of the Opposition. One of his points was that under the Acts Interpretation Act any crime which attracted a punishment of more than six months’ imprisonment was to be tried upon indictment. In section 12 of the principal act before us an intention is expressed which clearly leaves no room for the application of the Acts Interpretation Act. It reads - (1.) Offences against this Act, other than offences expressed to be indictable offences, shall be punishable either on indictment or on summary conviction.
That provision having been agreed to, no room is left for the operation of the Acts Interpretation Act.
The second point with which I should like to deal is Senator McKenna’s suggestion that charges of attempting to commit major crimes, which, if committed, must be the subject of trial by judge and jury, are not to be tried by judge and jury. Quite clearly, according to section 7 of the principal act, which the Leader of the Opposition himself quoted, attempts to commit those major crimes are punishable as if the attempted offence had been committed. In this context “ punishable “ means triable and punishable, as section 12(1.) of the act, I suggest, makes perfectly clear. The offences referred to are clearly triable and punishable either on indictment or on summary conviction.
I should like to clear up another point upon which there may be some confusion in the minds of some senators. Although what the Leader of the Opposition said was factual, some confusion might still be left. A jury trial cannot be denied to a man who stands in peril of ten years’ imprisonment. If a man is tried summarily, the maximum penalty that may be inflicted upon him is one year’s imprisonment, or a fine of £100, or both. So, if a jury trial is denied by the court - not by the Governmentas it may be denied in some less serious cases, the maximum penalty which may be inflicted is a year’s imprisonment, or a fine of £100, or both. I suggest that in the case of a man who is charged with a major crime against his country for which, if found guilty, he would be liable to death, life imprisonment, or imprisonment for fifteen years, no prosecuting counsel would be able to deny a jury trial. Nor, in the case of crimes attracting penalties slightly less severe, would he seek to deny a jury trial because, by doing so, he would seriously limit the punishment which could be meted out to an offender.
I think that it would be wrong to make it mandatory - this matter depends on the court’s judgment - that all offences, however trivial, should be tried by judge and jury. These amendments taken together, if they were passed, would take away the right of a prosecutor to ask for a summary trial not only of the major crimes specified in this bill but also of crimes covered by the sections dealing with judicial corruption, suborning witnesses, coinage offences, the forging of Commonwealth documents and offences of that kind1. Taken together, the amendments, if passed, would not only deny the prosecutor the right to ask for a summary trial and deny the court the right to grant a summary trial, but also deny the offender the right to elect to have a summary trial. There could be - indeed, no doubt there would be - many instances, not where an attempt was made to bribe the Chief Justice of Australia with property with a value of less than £50, but where it could be shown that perhaps a bottle of whisky or £5 had been slipped to a juror, or an offence of that nature had been committed. I suggest it would be silly to make it mandatory that such offences be tried on indictment by judge and jury.
In conclusion, I point out that the proposition in section 12a (2.), which it is sought to eliminate, has been a part of our law for 46 years. I do not think that grave injustice as a result of it. can be shown to have occurred during that time. Nor do I think, having regard to the desire of a prosecutor to get a proper punishment for a serious crime and to the safeguard of the court itself having to agree to a sum mary prosecution, that in the future it is likely to cause injustice.
– I shall reply very briefly to the debate, and in particular to the remarks of Senator Vincent. The honorable senator was concerned primarily with the first amendment moved on behalf of the Opposition. He was concerned about taking away from the magistrate a discretion as to whether or not the magistrate conceded a jury trial to an accused regardless of the wishes of the accused in a case where the amount involved was less than £50.
– Not necessarily regardless of the wishes of the accused.
– Quite obviously, we are discussing a section which confides in the court a discretion to be exercised at the request of the prosecutor, regardless of the wishes of the accused. That is perfectly clear. The accused is given no say in the matter; he cannot determine it. The decision rests, as the honorable senator said, in the discretion of a court. That is the very point to which the Opposition takes objection. We of the Opposition are not nearly so concerned about whether or not the court is to have a discretion to say whether an accused shall have a trial by jury. We are concerned to give to the accused the right to claim a trial by jury if he wishes, regardless of the outlook of the court. That is the fundamental point of difference between the argument that I address and the one the honorable senator adopts.
– Do you suggest that section 80 of the Constitution does not cover such a provision as this?
– I do not think section 80 of the Constitution does very much at all. Through you, Mr. Chairman, may I say that my recollection of that section is that it simply provides that if a trial does take place on indictment it shall be a trial by jury; but it certainly does not go to the point of saying what offences are to be the subject of indictment. That is a matter that the Parliament itself determines. No right to a trial by jury for indictable offences is conferred by the Constitution. I do not think that section has any real relevance to the issue that we are discussing now. This is a question of who should have the right to determine that the trial of a person for an offence involving property to the value of £50 or less should be by jury or otherwise. The Opposition says that the accused should have (hat choice. On the other hand, Senator Vincent says, “ No, let the court determine his right “. That is a fundamental issue and we simply diverge very diametrically on that point.
In reply to the statement of the Minister about attempts and his confidence that attempts referred to in section 7 of the principal act are caught up with the offences of treason, treachery, sabotage, espionage and breaches of official secrets, I merely indicate to him that the Attorney-General (Sir Garfield Barwick) himself was not so definite. I refer the Minister to page 2997 of the House of Representatives “ Hansard “ of 17th November. I will read this very brief extract from the AttorneyGeneral’s speech -
The Deputy Leader of the Opposition said that attempts to commit these offences would not be caught up. It is very true that when he asked me this by interjection, I said that he may be right, being of a cautious turn of mind. However, when I had a look at the provision later I saw that what was provided was that offences against the section nominated, as provided in my first amendment, were punishable only on indictment. If honorable members turn to the attempt provisions, they will see that attempt is punishable as if the principal offence had been committed. That seems to me to make it fairly clear that attempts are caught up and will be tried only on indictment. It seemed to me that there was no need to make any separate provision.
I merely indicate that the Attorney-General himself certainly is not dogmatic about it. The Opposition’s line of thought in this matter is that if there is any modicum of doubt, Jet the Parliament resolve it. That is the proposition that I put on that point.
We of the Opposition are in a difficulty on the two amendments we are discussing. If our first amendment was accepted by the committee - that is the provision that in offences involving £50 or less the accused himself could elect to have a jury or not have a jury - we would be far less concerned with the second amendment. However, we do not know the decision on the first one. Accordingly, we have to be prepared to move on to the second amendment.
I say to the Minister that it is very hard to justify his argument, or the argument of the Government, that it is proper to provide that a serious offence such as espionage, which is punishable by imprisonment for seven years, can be tried on indictment only, but that many quite serious crimes, which are punishable by ten years’ imprisonment and are declared to be indictable too, can be dealt with otherwise than on indictment. I instance the two outstanding examples of judicial corruption and official corruption and certain only of the coinage offences. I point out to the Minister that the offences that we propose to interpolate by our second amendment do not include all the coinage offences. We have selected only those that are expressed by the Parliament to be indictable. I refer merely to the nature of those to indicate their seriousness. I think I quoted sections 52 to 60 in relation to coinage offences. Section 52 deals with gilding metal with intent to make counterfeit coins, and the penalty is ten years. For the offence of making coining instruments the penalty is seven years; for making counterfeit coins the penalty is imprisonment for ten years; for buying and selling counterfeit coins the penalty is seven years and for uttering counterfeit coins a penalty of three years is imposed. There are other offences attracting penalties of two years and three years. Taking the first offence to which I referred1, which carries a penalty of ten years, I fail to see a principle in the Government’s proposal that espionage, attracting seven years’ imprisonment, can be tried only on indictment, but a grievous offence against the coinage, attracting a penalty of ten years, may be tried on indictment or may be dealt with summarily.
.- I should like to reply to one or two of the points raised by the Leader of the Opposition. I am instructed that the Attorney-General is quite conclusively and definitely, without any reservations whatever, of the opinion that attempts to commit the serious categories of crimes are, under sections 7 and 12 of this act - as I have previously explained - punishable as if those crimes had been committed1. I leave it to honorable senators to read section 7 which provides -
Any person who attempts to commit any offence . . . shall be punishable as if the attempted offence had been committed.
I ask honorable senators to read that in conjunction with section 12 (1.), which provides that offences shall be punishable either on indictment or on summary conviction. Having read those sections, it is clear to me, and I hope to most honorable senators - certainly it is strongly held by the Attorney-General - that attempts are triable and punishable ns if the offences had been committed.
The question of principle was raised by Senator McKenna. He said that he could not see why it should be mandatory that espionage, punishable by seven years’ imprisonment, should be tried by a jury, whereas offences against the coinage laws of the Commonwealth could be tried summarily, even though the maximum penalty was ten years. I suggest that the answer is as follows: One cannot commit a little bit of espionage. One cannot enter the service of a foreign country with intent to overthrow or damage one’s own country, and just commit a little bit of that crime. Once one goes in for such a thing one is engaged in espionage. Being such a serious crime, and being a crime which cannot be partly committed, but must be wholly committed or intended, it should be tried by jury. Flagrant offences against the coinage can attract penalties up to ten years, but it would be possible to find somebody with one counterfeit coin in his possession or with ten counterfeit coins in his possession. Clearly, on a minor matter of that sort, a summary trial would be reasonable, whereas if a man were found with 1,000 or 10,000 counterfeit coins in his possession, although the prosecutor could ask for a summary trial, he would1 be most unlikely to do so, because the offence would be in a different category from that of the offence committed by the man who had only ten counterfeit coins in his possession. There are no different categories in regard to espionage.
– I have merely one comment to make upon what the Minister for the Navy has said. I regretthat I have not been able to impress him by the Opposition’s argument, but I cannot accept his proposition that under the bill that we have before us you can have a little bit of espionage. When we reach that particular section I shall show him many cases where a relatively insignificant act can be deemed to be espionage and the intent - a necessary ingredient of that offence - can be established, not from anything he has done, but from his known character as proved. In the view of the Opposition, in relation to the crime of espionage, a very minor act could certainly attract a penalty of seven years’ imprisonment.
– The Leader of the Opposition (Senator McKenna) quoted examples of indictable offences from the Crimes Act. He referred to the offences of judicial corruption and official corruption. I suggest he was not quite fair in giving those illustrations of indictable offences that may or may not be tried before a judge and jury. I suggest to the honorable senator that an offence such as judicial corruption, even if the consideration were only a bottle of whisky, would automatically be tried before a judge and jury by order of the magistrate. I cannot imagine any magistrate saying, “Well, Mr. Justice Blank has received a bottle of whisky in consideration of issuing a corrupt order or judgment. After all, a bottle of whisky is worth only 35s. Therefore I am going to treat this case summarily.” I suggest, with great respect, that is drawing the long bow, and it is also a reflection upon our bench. There are many offences to which the honorable senator has not referred that could properly be tried summarily. I am not going to refer to them, because there are hundreds of them in the Crimes Act. I suggest that in picking out two of the worst offences, the honorable senator is not doing the bench real justice.
The only other point I wish to make is this: This is not a new provision. It has been in the Crimes Act since 1926. If the Opposition now suggests this as a matter of principle, I am somewhat surprised that it should take the Opposition such a long time to come to that conclusion. After all, three distinguished Labour administrations have been in power since 1926. We have had the administrations of Mr. Scullin, Mr. Curtin and Mr. Chifley. If this provision was abhorrent in principle, I suggest that the three Prime Ministers I have mentioned should have done something about it. I suggest that the fact that those Labour administrations did not do anything about it is very strong evidence that they thoroughly agreed with the provision. I suggest that that is a fair assumption to make. Therefore, I believe that the onus is now upon the Leader of the Opposition and members of the Opposition in general to establish that those three Labour administrations which I have mentioned were quite wrong in supporting this legislation and that now the Opposition should give a good reason why Labour policy in this respect has altered.
The third and final point that I wish to make is that not only is this not new in Commonwealth law but also it is quite accepted under State law. 1 refer, first, to the law of New South Wales. Section 501 of the Crimes Act of New South Wales gives no discretion at all to a magistrate in regard to trying persons accused of offences under that section relating to property of a value of less than £50. It is mandatory that the offence shall be tried summarily. In the legislation we are considering at the moment provision is made for the giving of a discretion. Section 75 of the Crimes Act of Victoria contains a provision similar to that in the New South Wales act, but there the value of the property is £25 or less. Again there is no discretion; a magistrate is obliged to try the case. The Crimes Bill very properly seeks to give that discretion. For those reasons, I am of the opinion that the amendment moved by the Leader of the Opposition is not very strong.
I am wondering whether the solution of this situation lies in clarifying the rather unfortunate expression “ if the offence relates to property the value of which does not exceed Fifty pounds”. I should have thought that that expression was penned by a draftsman who had in mind false pretences and larceny. I should like some information on that point.
The second thing I wish to say is that any statement to the effect that there is universal provision in the criminal law of the States giving to a court a discretion to try crimes summarily contrary to the consent of the accused is erroneous. In Tasmania, the matter has recently been considered by the Attorney-General of that State, with the assistance of the Bar Association. The law in Tasmania until 1959 was that a person accused of a crime involving property of a value of less than £10 had the option to be tried summarily. In 1959 the value of the property was raised to £100. But now only if the accused so wishes can he be tried summarily; otherwise, he has to be tried upon indictment before a jury. If the Opposition adopts the view that section 12a (2.) of the Crimes Act is applicable to judicial corruption, then, notwithstanding the fact that the maximum punishment that can be meted out by a court of summary jurisdiction is twelve months’ imprisonment or a fine of £100, there is some inconsistency in the idea that the offences that have been newly introduced by this bill must be punishable on indictment and that the discretion should remain, contrary to the consent of the accused, with the court to decide that these other charges may be tried summarily.
Question put -
That the words proposed to be inserted (Opposition amendment No.1 - vide page 2085) be inserted.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 7
Question so resolved in the negative.
Question put -
That the words proposed to be left out (Opposition amendment No. 2- vide page 2085) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 7
Question so resolved in the negative.
Clause agreed to.
Proposed new clause. (Opposition amendment No. 3.)
Section proposed to be amended -
– I move - (Opposition amendment No. 3.) After clause 14, insert the following new clause:– “ 14a. Section thirteen of the Principal Act is repealed and the following section inserted in its stead: -
– (1.) Proceedings in respect of any offence under this Act shall not be instituted except by the Attorney-General or with the consent of the Attorney-General or of a person thereto authorized in writing by the Attorney-General. (2.) Notwithstanding that consent has not been obtained as provided by the last preceding subsection -
The effect of the amendment is to require the Attorney-General, or some person authorized on his behalf, to take action to institute proceedings under this act. As the section stands at present, it permits proceedings to be instituted for the committal for trial of any person in respect of indictable offences against the law of the Commonwealth, or for proceedings to be instituted for summary conviction. The view of the Opposition is that the enforcement of the law is primarily a matter for the Attorney-General and the Crown Law officers. We do not for a moment suggest that all informations and indictments should be laid by the Attorney-General himself. He has officers throughout the Commonwealth. He may see fit to leave certain prosecutions, such as those in respect of social service matters, to be initiated by the officer in charge of the department concerned. It would be quite impossible for him personally to attend to all of them. He has the power of delegation, and the amendment that we have proposed includes power to authorize others to act.
It may beobjected that if the Crown refuses to prosecute, and if it alone has the right to prosecute, somebody may be injured. The answer to that objection, of course, is that in an appropriate case the matter can be ventilated in the forum of the Parliament. It is of no use to argue to the
Opposition, in putting this proposal, that if a person :is vexatiously prosecuted, an action for malicious prosecution providing for damages may result. A person of substance might put up a man of straw to launch such a prosecution, so that an action for damages for malicious prosecution would yield exactly nothing. If a person of substance wanted to vilify somebody in that way, that is the exact method that he would choose to achieve his purpose.
It is interesting to note that there is a complete prohibition in the existing act, which is maintained by this bill, against private people prosecuting for espionage or breach of official secrecy. The provision is contained in section 85, which states - (I.) A prosecution under this Part-
That is, the Part relating to espionage and breach of official secrecy - of this Act shall be instituted only by or with the consent of the Attorney-General or of a person acting under his direction . . . In this bill, the Attorney-General, following amendments proposed by the Labour Party, has included a new section - section 24ac - denying private persons the right to prosecute for treason, treachery and sabotage. Under the bill now before us no private person is permitted to launch a prosecution for treason, treachery, sabotage, espionage or breach of official secrecy. So the legislation in some cases concedes the right to private persons to prosecute and in other cases it denies them that right. I can see no point of principle involved there. The division is not made on a point of principle, and it seems to me that we should fall down on the side of one principle or the other. Private persons should be allowed to prosecute or they should not. We should not have the present position where they are allowed to prosecute in some cases and denied the right in others. The view of the Opposition is that it is unthinkable that private persons should be able to launch prosecutions for offences such as official corruption, judicial corruption, unlawful soundings and the other serious offences that I mentioned earlier in the debate. I press the amendment.
– The Opposition has raised an interesting point. It rs a point that has always been the subject of discussion within the legal profession. The point is whether, in the field of criminal prosecutions, a private individual should have the right to institute proceedings. In respect of summary offences I think the Leader of the Opposition will agree that it is quite common for private persons to institute proceedings. Indeed, it would be unfair to prevent them from doing so. Prosecutions by private individuals are a normal everyday happening in our police courts and other courts of summary jurisdiction. But when we come to deal with indictable offences, tried before a judge and jury, an interesting problem is created. I gather that the Leader of the Opposition is, by his amendment at least, asserting that only the Attorney-General or a person authorized by him should have the right to institute proceedings on indictment. The act at present provides, with respect to those offences that have elements of treason in them, that only the authorized persons to whom I have referred shall institute proceedings. Proposed new section 24ac provides that for offences relating to treason, treachery, espionage and sabotage only the Attorney-General or his nominee may institute proceedings. Tn respect of all other indictable offences, the bill and the act give private individuals the right to institute a prosecution.
The Leader of the Opposition said that no question of principle was involved.
With all due respect to him, I suggest that a principle is involved - a very important principle. As long ago as 1860, in “Ex parte Crawshay v. Langley “, reported in volume 8 of Cox Criminal Cases at page 356, the principle was established that it was a good common law rule to say that it is the duty of the Attorney-General to institute proceedings for crimes that have a tendency to disturb the peace of the state or to endanger the government. That is the common law in relation to this matter and that law is preserved in the bill and in the act. The right to institute proceedings in respect of offences that have a tendency to disturb the peace of the state or to endanger the government is reserved to the AttorneyGeneral. There is a very good reason for that. Those offences are perhaps the most serious in the calendar and there is always a tendency for politics to intrude when those offences are alleged against any person or persons. In view of the public nature of those offences and in view of their political importance, very properly the Attorney-General, under common law and under the provisions of the bill and the act, has retained the obligation and the sole right to institute proceedings.
In respect of crimes that do not contain the same public offence element, as it were, there rs another common law ruling to which I will refer. This is again a question of principle and it differs from what the Leader of the Opposition said. In 1902, in the case of “ R. v. Kennedy “, reported in volume 86, Law Times, at page 753, the Court of King’s Bench, consisting of Lord Justice Alverstone and Justices Darling and Channell, unanimously held that a private citizen is entitled to set the law in motion with respect to crimes not having that public offence element in them. I want to refer to the judgment of one of the learned judges. This is good law; it is good British justice. His Honour said -
I leave out the irrelevant portions -
I have referred to them already - a private individual may institute criminal prosecutions . . .
I heartily agree with that statement of law by the learned judge. He referred to the danger that would exist in our society if the only person who could set the criminal law in motion was a public official. That is what the judge referred to when he made mention of the dispensing power of the Crown. That is the power which one very eminent monarch abused - and he lost his head over it. Ever since then, that particular power has been very jealously guarded by the courts and Parliament. The alteration of that power now would be a retrograde step. For that reason, I do not think Senator McKenna’s amendment merits acceptance.
Question put -
That the words proposed to be inserted (Opposition amendment No. 3 - vide page 2094) be inserted.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . 7
Question so resolved in the negative.
Clause 15 (Opposition amendment No. 4).
Section proposed to be amended -
– (1.) Where a person convicted of an indictable offence against the law of the Commonwealth has been previously convicted on at least two occasions of indictable offences against the law of the Commonwealth, or of a State, or of a Territory, the Court before which he is convicted may declare that he is a habitual criminal, and may direct, as part of his sentence, that on the expiration of the term of imprisonment then imposed upon him, he be detained during the GovernorGeneral’s pleasure in a reformatory prison.
. -I move - (Opposition amendment No. 4.) In clause 15, before paragraph (a) insert the following paragraph: - “ (aa) by inserting in sub-section (1.) after the word ‘ person ‘ the words ‘ of or above the age of twenty-five years ‘; “.
Section 17 of the principal act, which deals with habitual criminals, makes no distinction at all as to age when it provides that where a person convicted of an indictable offence against the law of the Commonwealth has been previously convicted on at least two occasions of indictable offences against the law of the Commonwealth, or of a State, he may be detained during the Governor-General’s pleasure in a reformatory prison. There is an unfortunate variation in the procedure of the various States in the matter of age. In Victoria and New South Wales, the habitual criminals provision, the indeterminate sentence, does not operate in respect of a person under the age of 25 years. In three other States it can operate at eighteen years, and in the remaining State at seventeen years. I suggest that it is quite absurd to have that kind of variation in the States. The two States that have the largest populations, that is, New South Wales and Victoria, provide a limit at 25 years of age under which no person can be declared an habitual criminal.
The view the Opposition takes is that the Commonwealth should set a standard. It should give some leadership in this matter and it should at least achieve uniformity in the matter of the operation of Commonwealth law. If the law stands as it is at the present time without any reference to the age of a criminal being convicted for his third indictable offence, the position in New South Wales and Victoria will depend on whether the offender’s third offence is against Commonwealth law or against State law. If he is under 25 years of age and his offence is against Commonwealth law, he is liable to declaration as an habitual criminal, but if he is under 25 and the third offence is against State law he is not liable to a declaration. That is the position that is created by this Commonwealth law that we are now asked to approve.
I put it to the committee that if the Opposition’s amendment is accepted there will be uniformity all over Australia in respect of liability to declaration as an habitual criminal if the third offence is against Commonwealth law. I submit, too, that that would have very great persuasive effect to induce the States to bring their law into line with that of New South Wales. It is rather strange that the operation of the Commonwealth criminal law can have different effects according to the State in which the Commonwealth law operates. It is quite unthinkable that Commonwealth law should have different consequences in different States. Let us assume that section 30j of the act operates and that the Governor-General declares the existence of a state of industrial disturbance in the Commonwealth. Let us assume, further, that a youth of seventeen years thereafter remains on strike for three successive days. He may thus commit three indictable offences and, under this law, be declared an habitual criminal. That could happen, because the offences continue from day to day. One must consider what is possible in that situation. I am not overlooking proposed new section 20c, which the Government is seeking to inject into the act. It provides - (1.) A child or young person who, in a State or Territory, is charged with or convicted of an offence against a law of the Commonwealth may be tried, punished or otherwise dealt with as if the offence were an offence against a law of the Stale or Territory.
I point out to the committee that the expressions “ child “ and “ young person “ are not defined. There is some support for the proposition that a “ young person “ referred to in that sub-section is a person under the age of eighteen years, because sub-section (2.) of the proposed new section refers to “ a person under the age of eighteen years “. It would appear, only in a broad way and by propinquity, that “ young person “ means a person under the age of eighteen years. That does not touch the difficulty that the Opposition feels in respect of a person of the age of seventeen or eighteen years, who is convicted of an indictable offence, having previously been convicted of two indictable offences - whether under Commonwealth or State law will not matter - having passed upon him under this legislation an indeterminate sentence, which, subject to the will of the Attorney-General, will mean life imprisonment. I suggest that the matter be cured simply by the amendment the Opposition proposes.
I point out that there has been some very enlightened legislation in New South Wales since 1957. There is a provision that if a person has a third conviction and a judge declares him to be an habitual criminal, it is the judge who determines the extra term that is to be served. The judge is delimited in the sentence that he may apply. An indeterminate sentence runs from five years to fourteen years. The provision we are considering deals with committal, after the third offence, during, the GovernorGeneral’s pleasure. The Attorney-General proposes the adoption of an entirely new provision, reading -
For the purposes of this section, ‘ the GovernorGeneral ‘ means the Governor-General of the Commonwealth, or the person for the time being’ administering the government of the Commonwealth, acting with the advice of the AttorneyGeneral.
Under the legislation, a person who is declared an habitual criminal, on conviction of a Commonwealth offence, that being his third conviction of an indictable offence, may be committed to prison for as long as the Governor-General wishes. We are asked to approve an amendment providing that the Governor-General shall act, not upon the advice of the Executive Council, but entirely upon the advice of the Attorney-General. So, in effect, when a person - who may be only seventeen years of age - is so convicted’ for the third time, he really gets a life sentence at the will of the Attorney-General. We are not contesting that. 1 think that notoriously that has been the case for a long period, where the Attorney-General alone advises in this matter.
Our amendment is directed at the fact that a young person of seventeen or eighteen years may be declared an habitual criminal under Commonwealth law. All that we are concerned about is to see that we fix an age which will give some hope for reformation and adequate deterrent. We do not want to deny the possibility of the reformation of a relatively young person. This is an amendment which involves no politics and which deals not with political offences, but only with broad humanity. I hope that the Government will accept it.
– I am not thoroughly competent to deal with the legal aspects of this matter. AH the bad consequences which the Leader of the Opposition hassaid might flow in the form of life imprisonment and other things have been possible under the law for nearly half a century Those bad consequences would still apply in the case of . any person of or above theage of 25 years. The seriousness of the suggestion that life imprisonment, or something of the kind, could be served at th&. will of the Attorney-General is more apparent than real. That has been possible.previously. In any event, the amendment) would make that impossible only in the.case of persons under the age of 25 years: Indeed, it would not do even that. In NewSouth Wales or Victoria a person under theage of 25 years cannot be declared aor habitual criminal.
– That seems sensible, does it not?
– Not necessarily, but that is the law. I have no information i about the position in Queensland, Tasmania’, and South Australia, but I understand that in at least one of those States a similar provision applies.
– It? is seventeen’ years and eighteen years.
– It is eighteen years in Western Australia. The AttorneyGeneral is of the view that the amendment would not in fact achieve uniformity of law throughout Australia, as 1 think the Leader of the Opposition conceded, lt would still be a matter for the States to decide at what age one should be able to declare a person an habitual criminal. It should be borne in mind that this is a matter upon which the States have some right to express a view. Some States might argue that a declaration as an habitual criminal is made not for the purpose of punishment but for the purpose of reform. I suggest it would be wrong to say to those States, “ You think that a boy of seventeen years who has committed three indictable offences and is going wrong should be liable to be sent to a reformatory and held there during the pleasure of the GovernorGeneral; but we in the Commonwealth think that you are wrong and that until that person reaches the age of 25 years he should not be sent to such a corrective institution for the purpose of reformation “.
Because the amendment would not achieve uniformity, because it would, to an. extent, interfere with State rights and. State laws* because the bad consequences suggested have not flowed in the past and because there will continue to be in the future the safeguards of the courts, the Parliament and public opinion, the Government wishes to let the clause stand as printed.
– I wish to reply briefly. First, I say to the Minister that I hope he will not continue to address to the committee the argument that a particular provision should1 stand because it has stood for 46 years or 50 years. I should like to dispose of that argument now by saying that nobody on the Opposition side is the least bit embarrassed by what our predecessors did in an emergency 50 years ago. Let us face the fact that the Government, through its AttorneyGeneral’ (Sir Garfield Barwick), acknowledges that we are living in a new world’ and that the Crimes Act should be modernized and brought up to the highest standard. In a large number of the particulars to which the Government has addressed itself in this bill that has been achieved; there is no question about that. However, it is very disappointing to see that the Government, in revising this act,, did not do its work thoroughly and1 did not look at this matter. 1 say that there is no conflict at all with State law. I believe that it is incumbent on the Commonwealth to ensure that there is uniform application of its own laws throughout Australia. It is not an infringement of State law to provide that if a third conviction arises under Commonwealth law a man is not to be declared an habitual criminal if he is under 25 years of age. The States may preserve in their laws whatever age they wish; but let the Commonwealth accept the broadest, the newest and the most humane treatment of this matter, that of New South Wales. I am disappointed that the Attorney-General has not adopted1 the New South Wales outlook entirely. Apparently the Minister in charge of the bill is not prepared to listen to that argument. I realize that he has no personal authority in the matter. Having placed on record the views of the Opposition, I suggest that the matter may now gO’ to a vote.
Question put -
That the words proposed- to be inserted (Opposition amendment No. 4 - vide page 2097) be inserted.
The committee divided. (The Chairman - Senator the Hon. A. D: Reid.)
Majority … …. 5
Question so resolved in the negative.
Clause agreed to.
Clauses 16 to 23 - by leave - taken together, and agreed to.
Clause 24. (Proposed section 24.) (Opposition amendments Nos. 5 to 10.)
Penalty: Imprisonment for life. “ (3.) On the trial of a person charged with treason on the ground that he formed an intention to do an act referred to in paragraph (a), (b), (c), (d) or (e) of sub-section (1.) of this section and manifested that intention by an overt act, evidence of the overt act shall not be admitted unless the overt act was alleged in the indictment “ (4.) A sentence of death passed by a court in pursuance of this section shall be carried into execution in accordance with the law of the State or Territory in which the offender is convicted or, if the law of that State or Territory does not provide for the execution of sentences of death, in accordance with the directions of the GovernorGeneral.”
– I move - (Opposition amendment No. 5). - Leave out paragraph (c) of sub-section (1.) of proposed section 24. (Opposition amendment No. 6). - Leave out paragraph (f) of sub-section (1.) of proposed section 24. (Opposition amendment No. 7). - Proposed section 24, sub-section (1.), leave out “ the punishment of death “, insert “ imprisonment for life “. (Opposition amendment No. 8). - Leave out paragraph (b) of sub-section (2.) of proposed section 24, insert the following paragraph: - “ (b) knowing that a person intends to commit treason, does not with all reasonable despatch use reasonable endeavours to prevent the commission of the offence,”. (Opposition amendment No. 9). - Leave out subsection (3.) of proposed section 24. (Opposition amendment No. 10). - Leave out sub-section (4.) of proposed section 24.
Mr. Chairman, the committee now proceeds to consider the offence of treason which, compared with the existing Commonwealth law on the subject, the bill proposes to expand rather appreciably. Let me say at once that the Opposition views a person who can commit treason against the community in which he lives as being beneath contempt. We regard treason as an exceedingly serious crime. For the first time in Commonwealth law, paragraphs (a) and (b) of proposed new section 24.(1.) protect the lives of the Sovereign and certain members of her family and also protect her against imprisonment or restraint. There can be no objection to that because it is essential to maintain the line of succession and to see that constitutional processes are not interrupted or delayed by imprisoning or restraining the Queen.
I come to paragraph (c) which refers to levying war. For the first time this appears in Commonwealth statutes: -
A person who-
levies war, or does any act preparatory to levying war, against the Commonwealth; shall be guilty of an indictable offence, called treason, and liable to the punishment of death.
That is an offence which was not previously set out in Commonwealth law. It has nothing whatever to do with war in the sense in which war is ordinarily understood. There does not have to be a foreign power involved; there need be no foreign enemy. In fact, that is not one of the elements of the offence at all. The offence is purely an internal matter within the Commonwealth. It is a question of levying war; the action of individuals, be they three or 3,000,000, who combine to achieve a general purpose, not a particular one, by force or violence against the exercise of some lawful power or purpose of the State. It has been held to apply to insurrections to raise wages, to compel the legislature to change a law, to prevent it from passing a particular law, to open all prisons and that type of thing. They are internal matters that come within the competence of the Crown in the Commonwealth to contain. The Opposition says that the concept expressed in that way to the people of Australia will leave them with no clear idea of the ingredients of the offences that they have to avoid. The ingredients are joining together by force or violence to achieve a general purpose contrary to the purpose of the Crown, How would anybody have that understanding of the offence by reading the words “ levying war “? I would say that the term is known to very few lawyers in Australia. I would think that nobody had heard the term - even those engaged in the law, apart from in their student days - until this bill was introduced.
It is a pity that the Government saw fit to reach back into the past, dig up a crime of that nature and make it punishable with death when it is largely a matter of internal control within this country. There are in the laws of the States many provisions to meet the situation. There are laws dealing with unlawful assemblies, with riots, with assaults and with malicious damage to a property. They are all available fdr the type of thing that is contemplated here. At the Commonwealth level we have the crime of conspiracy. That is provided for in section 86. The element of conspiracy must be present if there is a levying of war in this technical sense. Sedition is already provided for in the act. Section 24a. - (1.) provides -
Subject to sub-section (2.) of this section an intention to effect any of the following purposes, that is to say -
to excite His Majesty’s subjects to attempt to procure the alteration, otherwise than by lawful means, of any matter in the Commonwealth;
It is also an offence -
To excite dissaffection against the Government or Constitution of the Commonwealth or against either House of the Parliament of the Commonwealth.
The crime of sedition follows on in succeeding provisions.
– What is the relation between that and levying war?
– 1 would say that the relation is that it would fit the definition of sedition to levy war by unlawful means - and force and violence would undoubtedly be unlawful means.
– With a treasonable intent.
– No. At the moment I am talking about a seditious intent, and a seditious intent is defined with particularity here. Let us keep to the terms we are discussing. I indicate that there is a set of circumstances denned in the sedition provision that would fit the concept of levying war. There are State laws of the nature that I have indicated that would cover the circumstances. There is also a Commonwealth law against conspiracy and against sedition. For good measure let me throw in the new offence of treachery. Proposed new section 24aa., relating to treachery, provides that -
A person shall not -
do any act or thing with intent -
to overthrow by force or violence the established Government of the Commonwealth, or a State . . .
Levying war would fit into that proposed new section. Since we have done without this particular crime since federation, and have survived two world wars, it is a pity to reach back into antiquity, to pick it up in this day and age and make it punishable by the death penalty. I repeat that there are State and Commonwealth laws that fit the situation.
The term itself is not one that will be understood by our people. When the words “ levying war “ are read, how many people will know that there has to be a gathering of them with intent, by force or violence to achieve a general, not a particular, purpose in defiance of a lawful purpose of the Commonwealth? If we are to have the thing at all, why not define it in those terms instead of picking out a technical term? The Australian people ought to be told in plain English the ingredients of the offences they have to avoid.
– It is very plain to an ordinary person. The proposed section says that he shall not levy war.
– I will give a prize to any person outside the legal profession who ever heard the expression “ levying war “ until it was used during the course of the amendment of the Crimes Act. It is this type of thing that tends to mislead the people. I have mentioned the ingredients of the offence twice now and I do not want to repeat them. I say that it is wrong for the legislature to use a term like that instead of defining the offence in terms that the ordinary Australian could understand.
My first argument is that the provision is not necessary in this day and age. My second argument is that if it is necessary to put it in the act at all, it should be defined in common English so that the ordinary Australian can understand it.
– What words would you use to define the offence?
– I have been through the ingredients twice. I have said that this applies to persons coming together with the intention by force and violence to do certain things. I am saying that the real meaning in ordinary English ought to be given in the bril. The Government should not throw a technical term like that at the people of Australia, because they certainly will not be able to digest it.
There is one other feature of this new offence that is quite novel. It is an offence not only to levy war but to do an act preparatory to levying war. I have always understood that you could do an act preparatory to the commission of a crime without either committing the crime itself or without being liable to be charged with attempting to commit the crime. The Attorney-General in another place was pressed to disclose from where he obtained the phrase. It was argued to him that it appeared nowhere else in the British Commonwealth. After some time the AttorneyGeneral indicated that it appeared in a Canadian statute. I have not had the time to do the research necessary to locate the statute in order to see whether the term “ an act preparatory “ is used in conjunction with the term “levying war” or in relation to some other matter. Nevertheless, I think that it is a most dangerous thing to provide. I do not want to bore the Senate by quoting legal authorities, but if one reads Kenny’s work one finds cases set out in which the doing of things preparatory to the commission of a crime is not regarded as being a crime. Expressing the intention to burn a haystack, and buying a box of matches, is one of the cases given. The purchase of the matches could be an act preparatory to committing an offence, but it certainly is not an offence.
I believe that the Government has to find a very strong case to support its introduction of an element such as the doing of an act preparatory to levying war. Would not the fact that such a provision was found in the ‘law of only one country be the best possible argument for rejecting it? On the contrary, it seems to have been adopted as a reason for accepting the provision. My own view is that, having regard to the dangers that are implicit in the provision, it should never be placed on the statutebook. It is for that reason, in the first place, that we have moved the deletion of paragraph (c). We say that there are adequate State and Commonwealth laws under other headings - and we are writing some in now - to pick out the set of conditions that are envisaged in the levying of war. Making an offence of an act preparatory to levying war is something that we cannot support in any circumstances.
I pass now to amendment No. 6, which relates to what is another provision that is new to Australia. To form an intention to do any of the five acts referred to in paragraphs (a) to (e) of proposed section 24(1.) and to manifest that intention by an overt act is to be regarded as treason - an offence which .is punishable by death.
– Order! The honorable senator’s time has expired.
– I rise to answer very briefly one or two points that have been raised by the Leader of the Opposition, and to give him an opportunity to resume his remarks. I should like to reply, first, to something the Leader of the Opposition said in regard to a previous provision. On such’ occasions when I point out to the committee that parts of this law have been in operation for nearly half a century, I am not doing so with any intention to embarrass the Opposition. Any such possibility had not occurred to my mind. I am merely endeavouring to show that the test of time has revealed that the injustices which it is thought may flow from these laws have in fact not so flowed. In regard to the doing of an act preparatory to levying war, I suggest that it is reasonable to have the right to punish some one who, in a court of law, can be proved to have done that act. If, for example, a man was found to be smuggling into the country a boatload of hand grenades or of Sten guns, and if you could prove in a court of law that he was doing that with treasonable intent - with the intent of using those smuggled arms for the purpose of levying war or of committing some other treasonable act - then it appears to me to be reasonable that you should have the right to punish him.
With regard to the concept of levying war, I would say this: As the Leader of the Opposition has indicated, the forms of levying war or of what could be called levying war are covered by provisions which relate to sabotage and matters of that kind. But some forms of levying war are not so covered. An armed insurrection for the purpose of coercing the Sovereign, or an armed insurrection cordoning off the Houses of Parliament and in which members of the public are killed or during which pitched battles are fought, could well go beyond the activities that are covered by those sections of the bill which deal with treachery. If those forms of war could be shown in a court of law to have been undertaken with treasonable intent, it appears to me to be reasonable to have them in the section dealing with treason.
– I regret having taken so much time on amendment No. 5. I wish to point out to the Minister that the provision relating to an act preparatory to levying war is one that disturbs the trade union movement considerably. I have outlined the ingredients of the offence of levying war. I instance the case of a crowd of people getting together to achieve a general industrial purpose. I point out that, under the new term, an- act preparatory to. levying war could be performed by a trade union official who instigates some largescale industrial action- in the nature of a strike, which either by accident or provocation spills over into violence. Such’ an act answers to the description of an act preparatory to the levying of war. The new provision may be wide enough not only to catch the smuggler to which the Minister referred- but also a trade union official who starts off a strike with no thought of violence but who is left, as one of the agents preparatory to its execution, liable, under the proposed new section, to the death penalty. That is the kind of thing that disturbs the Opposition and which seriously disturbs the trade union movement.
I return to amendment No. 6, which seeks to omit paragraph (f) of proposed new section 24 (1.). We say that, having regard to the vagueness of the dangers which are inherent in paragraph (c), paragraph (f) is altogether too wide when it provides that the forming of an intention to do an act referred to in a preceding paragraph and to manifest that intention by an overt act is an offence, called treason, which is punishable by death. When my time expired, I was about to say that we were told that this provision relating to treason was taken from Sir Samuel Griffith’s rendering of the Queensland Criminal Code. But when I turn to the Queensland Criminal Code, I find that the element contained in paragraph (f) of proposed new section 24 (1.) applies not to the whole range of treason but only to killing the Sovereign and killing the eldest son and heir apparent. I am looking at the Queensland Criminal Code as I speak. It will be noted that, although in the Queensland Criminal Code the forming of an intention and manifesting it by an overt act were restricted to offences against the person of the Sovereign or members of her family, a complete change is made in this bill when the relevant provision is made to apply to killing the Sovereign, killing members of her family, levying war, assisting enemies and the whole range of treason.
That is a major change. We object to it on the ground that, if the common law, which is supposed to be the justification for this measure, is as set out in the
Queensland statute, as the Attorney-General claimed, then it is unjustifiable to make a broad omnibus provision of this kind applicable to all the matters within the range of treason and not restrict it to the killing of the Queen and members of her family. I believe that the Minister should reply to that point. While the paragraph relating to the levying of war and the doing of acts preparatory to levying war remains in proposed new section 24 (1.), we of the Opposition are not prepared to support paragraph (f) and we will vote against it.
Amendment No. 7 is directed to the punishment of death for which provision is made in proposed new section 24 (1.). We are opposed to that provision. I shall not develop any argument on the matter. One is either in favour of the death penalty or is against it. The Opposition’s viewpoint has been exceedingly well publicized and is well known. I merely content myself at this stage by saying that we shall vote against that provision.
I pass now to amendment No. 8. It relates, not to treason, but to misprision of treason. Sub-section (2.) of proposed new section 24 provides that -
A person who-
receives or assists another person who is, to his knowledge, guilty of treason in order to enable him to escape punishment; or
knowing that a person intends to commit treason, does not give information thereof with all reasonable despatch to a constable or use other reasonable endeavours to prevent the commission of the offence, shall be guilty of an indictable offence. Penalty: Imprisonment for life.
There again, one finds one more resort to antiquity, in the view of the Opposition. I repeat that this is a new world in which we live, and we are a new nation. In view of the lack of precision in paragraphs (c) and (f) to which I have referred, regarding the levying of war, and the omnibus power covered by the words “ forms an intention “ and “ does an overt act “, I believe that the provision is altogether too wide. We are seeking to impose upon the people of this nation a knowledge of what treason is. I have been speaking of only some aspects of treason. We call upon the people first of all to know what treason is, then to prevent it, and thirdly, to inform about it. How could any layman know the elements of levying war or of forming the intention which is manifested by an overt act? How does he recognize those things as elements of treason?
We of the Opposition say, of course, that everybody should be obliged to take reasonable steps to prevent the commission of treason if he sees it about to happen. But I repeat that each Australian should be able to identify treason when he sees it. Australians, in common with most people of the world, I think, have a horror of informers. It may well be that the only way in which treason can be prevented is for some one to convey information to persons in authority. But the bill proposes, first, a duty to inform; that is cast by proposed new section 24 (2.) (b). A person who, knowing that another person intends to commit treason, does not give information thereof with all reasonable despatch to a constable or use other reasonable endeavours to prevent the commission of the offence, shall be guilty of an indictable offence. We realize the difficulties that may exist between members of the one family.
As honorable senators will see if they look at our amendment No. 8, its purpose is to delete the paragraph proposed by the Government and to insert the following paragraph: -
The effect of the change from the Government proposal to the Opposition proposal is that it will be left clearly to a court and a judge andjury to determine whether informing on a member of a family was reasonable, having regard to all the circumstances. It may be that the court could so hold; nevertheless, the Opposition’s amendment seeks to let in an element of judgment on the part of the court or the jury - to let them decide that it was not reasonable and that other steps could have been taken. The amendment provides for a far more merciful judgment to be exercised.
I have now dealt, inadequately and rapidly, Mr. Temporary Chairman, with amendments Nos. 5, 6, 7 and 8. Amendments Nos. 9 and 10 are consequential upon acceptance of Nos. 6 and 7 respectively. Being consequential, their purport is obvious and I do not propose to address myself to them particularly. At this stage, I shall leave what I have to say with my comments in support of amendments Nos. 5 to 8.
– Senator McKenna fears that a genuine action by a trade union leader could be regarded as an act preparatory to levying war under the proposed new section that we are discussing. I suggest that such an action would be safeguarded by paragraph (f) of proposed section 24 (1.) If the action was an industrial action performed without an intent to commit treason, without an intent to levy war, and done in good faith, I suggest that the trade union leader would be entirely protected.
I believe that an overt act can manifest an intention. Indeed, I know of hardly any other way in which an intention can be manifested other than by an overt act. In this context, an overt act done which indicates the intention of a man to commit treason, must be an act carried out in pursuance of his intention to commit whatever form of treason he intends to commit. It must be an act which manifests that intention, and it must be an act that tends towards the accomplishment of the treasonable object which he has in mind. It seems to me to be reasonable to suggest that an intention which is frustrated in some way, or prevented from being carried out, may, in fact, be manifested through such an overt act.
On the subject of the death penalty, I agree with Senator McKenna that one is either for the imposition of the death penalty for treason or against it. I personally believe that in the case of the crime of treason, the death penalty should remain on the statute-book. The final point made by Senator McKenna related to misprision of treason. There is an onus not only to attempt to prevent treason, but also to refrain from helping any person to commit treason; it is necessary to give information that treason is about to be committed, so that it may thereby be prevented from being committed. That again appears to me to be perfectly reasonable. For instance, if one knew that some other person intended to kill the Sovereign, it seems to me that there would be a very real duty on one to prevent that person from doing so by giving information to prevent it. It also seems to me reasonable that a person who knows that an armed insurrection is about to break out on a certain night, and that that insurrection could lead to civil war and bloodshed, should be required to give niformation about it in order to prevent treason of that kind from being committed.
– I refer to proposed section 24 (2.) (b). I should like to know whether, under that provision, a wife or a mother would be required to give information to prevent the commission of an offence. If that is the intention of the provision, I think that the person concerned would have a terrible decision to make and that the amendment moved by the Opposition would be more acceptable to me.
– I refer to amendment No. 8, proposed by the Opposition. I do so because of the way in which proposed new section 24 has been framed, particularly in relation to a person knowing that an offence was to be committed and being required to give information regarding it. That seems to me to be leading to one set of people informing on others, perhaps in relation to vague suspicions. I do not want to repeat Senator McKenna’s comments, but it seems to me that in respect of paragraph (c) of proposed new section 24(1.), there is some difference of opinion as to the meaning of levying war and actions preparatory- to the levying of war. The onus is thrown on certain individuals of knowing that people are about to commit the most indecisive of crimes. When the position is looked at in that light, we see that a particularly heavy onus is thrown on sections of the public and even on members of a family. In relation to an industrial disturbance a son may know that his father proposes to take certain action at a union meeting.
– A treasonable act?
– An act that could be termed treasonable. The only protection afforded is that the act may be done in good faith. The person who acquires the information in the first instance must decide whether the act is going to be done in good faith. If he decides that the act is to be done in good faith and if his judgment is wrong, he may be convicted for not disclosing his knowledge. So a heavy onus is thrown not only on sections of the community but on members of a family. They are made judges of the action. That is a too-heavy onus to be placed on individuals. While I am not completely in favour of the amendment proposed by the Opposition, because it still throws a certain onus on the community, it does remove the obligation to inform a constable. The amendment dogmatically provides that if a person has this information, it must be conveyed to a constable.
– Not necessarily.
– Proposed section 24 (2.) states -
A person who -
knowing that a person intends to commit treason, does not give information thereof with all reasonable despatch to a constable or use other reasonably endeavours to prevent the commission of the offence, shall be guilty of an indictable offence.
Who is to be the judge of whether a person has used reasonable endeavours? I do not want to quote legal opinions that have been bandied around the countryside for weeks, but one that 1 saw questioned whether it would be considered reasonable if a person sat up for half the night with another person endeavouring to persuade him not to commit the offence. Would that be a reasonable endeavour to prevent the commission of the offence? Some honorable senator says that it would not. You must look at whether a reasonable attempt has been made to prevent the commission .of the offence. A person .may think that he has done everything within reason to prevent the commission of the .offence, but he .may have failed to inform a constable that he knew what was going to happen. He could still be charged. convicted and sentenced to life imprisonment if the actions .that he took were not considered reasonable and it were held that he should have given his information to a constable.
T want to say -something ‘about amendment No. 1. It is true that one rs either in favour of or against the death penalty and that little more can be said about it, but I want to quote the remarks of the Attorney-General (Sir Garfield Barwick) who, when introducing this bill on 8th September last, said -
The worth of these laws is never to be measured by the number of times a conviction is secured. Their worth is -first in the deterrent field.
It would be interesting to know whether the death penalty has ever been a deterrent, lt is interesting to note that under the act, where the death penalty is prescribed it is to be carried out in accordance with the laws of the State in which the offender is convicted. The death penalty is not carried -out in some States so under this legislation the death penalty could be imposed but, because of the laws of the State concerned, it would not be carried out. An attempt is made under this bill to get around that position by providing that the death penalty shall be carried out in another way. I am not satisfied that the death penalty will have the effect of preventing the crime of treason. I do not think that the death penalty has any greater deterrent effect than life imprisonment. If a sentence of life imprisonment is imposed on a person and subsequently a miscarriage of justice is found to have taken place, the damage may be repaired. But once the sentence of death has been put into effect it is impossible to repair any damage that may have been done.
– The principle acts in reverse to the poor old trooper who is killed because somebody commits an act of treason. The trooper has no redness.
– That may be so. I do not know that the Christian world still subscribes to the policy of an eye for an eye and a tooth for a tooth.
– Why should anybody be allowed to send me to my death if I happen to be a trooper? Why should I have no redress?
– If the honorable senator were to study -world opinion he would find : that there has been -a gradual drift away from the ‘death penalty. In -recent years .a royal commission in England inquired into the death penalty :and now many crimes tha’ formerly carried the death penalty carry lesser penalties. I remind the honorable senator that if crimes of the type we are discussing had carried the death penalty, many of the world’s distinguished statesmen would have been executed. I refer to men like De Valera of Ireland and Nehru of India. Both those distinguished gentlemen could have been put to death under provisions of this nature. I am not satisfied that we should prescribe the death penalty. I am not satisfied that it is a deterrent. I oppose the provision in its present form.
– I inform Senator Cole that the proposed section he discussed provides an alternative way of preventing the commission of the offence of treason. It provides the alternative of “ with all reasonable despatch informing aconstable “ or using “ other reasonable endeavours to prevent the commission of the offence “. The question of whether other endeavours were reasonable would be one for decision by a jury should any case of this kind come before a jury. This particular provision has been part of the law of the United Kingdom, Canada, New Zealand and all States of the Commonwealth for many years.
– I mention to the Minister that the new ingredient of treason - forming an intention, displaying that intention by an overt act, and applying that to all the other heads of treason - is undoubtedly new. Compared with Queensland, it is quite different. In that State, the term was applied only to offences against the monarchy and members of the Sovereign’s family. Will the Minister say what influenced the Government to apply that particular provision to all the heads of treason that are now set out? As I understand the comment that was made by the Attorney-General (Sir Garfield Barwick) in another place, he justified what was being done as a mere exposition of the common law, well expounded in the Queensland criminal code. There is a very big difference between applying the offence of forming the intention to do an overt act to the whole field of treason, and applying itto only a part of it. The Minister has not referred to that matter.
– I am informed that the provision is not in fact new, that it is in operation in all the States of Australia in which the common law still maintains and which do not have some statute or criminal law superseding the common law on these matters. This is the case in New South Wales, Victoria and South Australia.
– Then the AttorneyGeneral cannot justify what he has done with the submission that he has followed Queensland, where there is a statutory offence. Anyway, we oppose the provision on that ground. As the Opposition’s circulated amendments Nos. 9 and 10 are consequential on the acceptance of our amendments, Nos. 6 and 7 respectively, I indicate that I shall not move them unless those amendments are accepted.
Question put -
That the words proposed to be left out (Opposition amendment No.5 - vide page 2100) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 8
Question so resolvedin the negative.
Question put -
That the words proposed to be left out (Opposition amendment No. 6 - vide page 2100) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 8
Question so resolvedin the negative.
Question put -
That the words proposed to be left out (Opposition amendment No. 7 - vide page 2100) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 8
Question so resolved in the negative.
Question put -
That the words proposed to be left out (Opposition amendment No. 8 - vide page 2100) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . 4
Question so resolved in the negative.
Amendment negatived. (Opposition amendments Nos. 9 and 10, being consequential on the acceptance of earlier amendments already negatived, were not proceeded with.)
Clause 24. (Proposed section 24aa.) (Opposition amendments Nos. 11 to 16.)
– I move - (Opposition Amendment No. 11.) Proposed section 24aa, sub-section (1.), leave out “ or sabotage “. (Opposition Amendment No. 12.) Proposed section 24aa, sub-section (1.) leave out “, of a State or of a proclaimed country “, insert “ or of a State “. (Opposition Amendment No. 13.) Leave out paragraph (b) of sub-section (1.) of proposed section 24aa. (Opposition Amendment No. 14.) Proposed section 24aa, sub-section (2.) leave out all words after “ Commonwealth, “ to the end of the subsection, insert “ a person shall not do any act with intent to assist a country or force that the Governor-General, by proclamation, has declared is opposed to that part of the Defence Force or a force that includes that part of the Defence Force.”. (Opposition Amendment No. 15.) Leave out sub-section (4.) of proposed section 24aa. (Opposition Amendment No. 16.) Leave out sub-section (5) of proposed section 24aa.
Amendment No. 16 is consequential upon the acceptance of amendments Nos. 12 and 13. These six amendments are directed to proposed new section 24aa, which establishes the new offence of treachery. Basically, there is nothing wrong with the crime as set out, apart from one aspect. The proposed new section provides - (1.) A person shall not -
do any act or thing with intent -
The CHAIRMAN (Senator the Hon. A. D. Reid). - Order! In conformity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Chairman do now leave the chair and report to the Senate.
Question resolved in the negative.
– I quoted the provisions of sub-section (1.) of proposed new section 24aa merely to show that what is aimed at is any attempt to overthrow by force or violence the Constitution of Australia. Two queries arise in relation to that provision. Honorable senators will note that the words used are -
Another element is that the Government is not content with protecting our own Constitution and our own Government, but also wants to make provision to prohibit anybody from overthrowing by force or violence the established government of a proclaimed country, not merely our own Government. That raises the main matter in this provision about which we are concerned, namely, that proclaimed countries are now to be protected by our law and failure to protect them will amount to the crime of treachery which in turn will attract a sentence of life imprisonment. So we are dealing with a very serious crime. The Attorney-General (Sir Garfield Barwick) in another place indicated that what was in mind in dealing with the protection of the governments and constitutions of proclaimed countries was to protect those of countries in the British Commonwealth of Nations such as Canada, South Africa and our new brethren in the Commonwealth, India, Pakistan and the others. However, that throws a pretty heavy burden upon our own nationals.
The bill, as drawn, does not confine the protection to countries of the British Commonwealth of Nations. It is to be applic able to any country which the Parliament selects. We believe that the whole of’ the proceedings regarding proclaimed countries, which are set out in this provision, are exceedingly ill-advised. In our view, the full effect of assuring protection to proclaimed countries has not been properly thought out. We think that there should at least be bilateral arrangements. We should not proclaim any country that is not prepared to extend to this country a similar protection. It seems to be a reasonable proposition that we should not unilaterally declare countries and make their enemies our enemies who may not be assisted. One has to remember that if we in Australia proclaim a country as a friendly country, we proclaim its enemies as countries which are not to be assisted. The mere act or proclamation draws a most invidious distinction between the country which is proclaimed and those countries which are not proclaimed. In short, from the- stand-point of international relations, we are making this statement: “ We are friendly with these countries. We will prevent our own nationals from rendering their enemies any help. But we will not make that arrangement in favour of other countries.”
– That means that the provision does not accept neutrals.
– Is does not refer to neutrals. The point I am making at the moment is that if we in Australia proclaim a country and tell our own nationals that they are not to assist specified enemies of that country, we are drawing a very invidious distinction between a friendly country and other countries that we have not proclaimed. In other words, as somebody has said, we are dividing the world into goodies and baddies for our own purposes.
– Do you object to tin: principle of proclamation in respect of treacherous offences?
– Yes, we do. We think that it is put in a very inchoate form in this bill. We see all kinds of difficulties that may arise. We recognize that it rests with Parliament to determine the country that is to be proclaimed. We see a vast improvement in the bill as it is now compared with the bill which was originally presented in another place, under which the proclamation has to specify the particular countries which are enemies of the proclaimed country and which cannot; be assisted. There is a big improvement.
– Well, Senator-
– Let me finish this theme, please. Suppose we proclaimed both America and the United Kingdom and they went to war, as they very nearly did over the Suez Canal - they were not very far from it at that stage. If we had to draw up a list of our friendly countries, they would be at the top of the list. Assuming war broke out between them, has the Government ever considered what the position would be? The Government would immediately have to revoke the proclamation of one or the other, or both.
The view that the Opposition takes is that it is infinitely better to negotiate pacts with countries that are friendly, whereby mutual arrangements are made and no offence is given to all the countries with which pacts have not been negotiated, lt may be a matter of bilateral arrangement.
– Would you suggest that in the case of a bilateral agreement the countries should be proclaimed after negotiation?
– That would be a matter of internal law once the arrangement had been negotiated. Whether it was done by proclamation or by an act of parliament is the merest matter of detail, in our view.
I do not know how far the Foreign Enlistments Act applies. Thar act was passed in Great Britain in 1870. It was expressed to apply to the Dominions in very complete terms. It required the various Dominions by proclamation to bring the act into operation in their domains as soon as notification of it had been conveyed to them. Personally, I do not recollect the revocation of that law in Australia. 1 assume that it is still operative here. If I am wrong, that is the type of act’ which I consider should operate in this country to achieve the purpose at which the Government is aiming; It is an act which comprehensibly deals with the question’ of illegal enlistment and prohibiting nationals, the Queen’s subjects; from enlisting in the armies of nations at war with nations which ate deemed1 to be friendly to- the Queen; If any foreign state at peace with Her Majesty is deemed to be a friendly nation, enlistments are prohibited and men are forbidden to leave the Queen’s Dominions in order to go and join people who are at war with nations friendly to the Queen. There is a penalty on shippers for embarking people for such purposes and a penalty for taking an illegally enlisted person on board. Very severe penalties are provided for equipping either military or naval expeditions for anything of this nature. There is a provision for a proclamation of neutrality - it may well be that, that is what this nation wants - to provide that if two of our normal allies become embroiled amongst themselves, we in this country should abstain from any activity affecting them. That is the type of approach we think should be made.
Lam not dealing in detail with the section. I am dealing with the broad principle that runs right through it. We have no objection to our own nationals being bound not to overthrow by force or violence our own government or our own constitution, but we do think it wrong to make the approach that the Government has made - the approach of forbidding our nationals to assist people at war with friendly nations. The matter should be dealt with in an entirely different way.
I pass now to the question of a proclaimed country, which runs right through amendments Nos. 12, 13 and 15. I shall deal with these amendments together. I refer to paragraph (b) of sub-section (i) of proposed new section 24aa. Within the Commonwealth or a Territory we are forbidden to levy war or do any acts preparatory to levying war against a proclaimed country. I have already stated the Opposition’s objection to that far too wide and illdefined situation. Then sub-paragraph (ii) uses the words -
Assist by any- means whatever, with intent to assist, a proclaimed enemy of a proclaimed country.
We object to the whole of paragraph (b). We object to’ the whole scheme of proclaimed countries as outlined in this- proposed new section. Having- said that, I have disposed of amendments Nos. 11, 12, 13’ and 15, all df which provide for the deletion of’ all1 references to proclaimed countries.
There is also a conditional amendment - No. 16. We make it consequential and conditional upon the acceptance of amendments Nos. 12 and 13. We say that if the Government is going to persist with this arrangement regarding proclaimed countries, it is far better that the authorization of the proclamation should rest with the Parliament than with the Executive government. For that reason we propose that conditional amendment.
I now come back to an entirely different matter in sub-section (2.) of proposed section 24aa, dealing with the situation where our own forces are either abroad or are in process of going abroad to meet enemies, whether or not they are enemies of the type we encountered in Malaya or Korea. Sub-section (2.) forbids a person to assist by any means whatever, with intent to assist, any persons against whom our forces are likely to be opposed. The bill was improved enormously in another place by providing that those persons are to be specified. We have no objection in principle to the provision as it is now drawn. What we object to is the lack of precision in referring to “ a class of persons “ who may be specified. The Opposition’s amendment No. 14 is drawn in better form than the bill, we think, in referring to forces to which our own forces may be opposed. We prefer the prohibition to read this way -
A person shall not do any act with intent to assist a country or force that the GovernorGeneral, by proclamation, has declared is opposed to that part of the Defence Force or a force that includes that part of the Defence Force.
We think that the words “ class of persons “ as describing enemies whom we are not to assist are too vague and too indefinite.
– Order! The honorable senator’s time has expired.
– I would suggest to the Leader of the Opposition that when he rises again he inform me why amendment No. 15, standing in his name, is not a consequential amendment, just as amendment No. 16 is. I may be quite wrong, but it seems to me that if amendments Nos. 11, 12, 13 and 14 are lost, he would probably wish the sub-section which he proposed to delete by amendment No. 15 to remain in the bill.
– I would vary the proposition by saying that if Nos. 12 and 13 were lost, we would agree to the deletion of Nos. 15 and 16, but not No. 11.
– I was dealing only with amendment No. 15. I merely say in relation to the clause in the bill, and the amendments which have been moved by the Opposition, that in the first place sabotage is not as ill-defined a term as the Leader of the Opposition has suggested. In the words which were given to me by the Attorney-General for the secondreading speech of the bill in this place -
The word “ sabotage “, as appearing in this paragraph is not defined. . . . the same expression already appears in the existing sections 30a and 30c of the act. Etymological dictionaries tell us it had an industrial derivation. . . But to-day it is wider, and refers to any malicious or wanton destruction. Because in this context the word bears its ordinary and wellestablished meaning, no definition here is necessary.
I move on now to the question of proclaimed countries.
– Before you do so, could you give me an example of how the Constitution or the Government could be overthrown by sabotage? What type of thing is the Government aiming at?
– I should not like to give an example off the kerb stone of how the Constitution could be overthrown by sabotage, but sabotage, I suggest, has a reasonably well-defined meaning. If it is not possible for the Constitution to be overthrown by sabotage, then no harm is done. If it is possible for the Constitution to be overthrown by sabotage, that should be guarded against.
– That is the principle of hit or miss.
– I move on now to the objections by the Opposition to the concept of a proclaimed country. The Attorney-General pointed out that it was necessary for the Parliament to be able to proclaim a country in order to cover the new Queen’s dominions, and he also said that there might be other countries with which we would wish to establish close ties of that kind in circumstances requiring it. I think that the Parliament should have the right, in its discretion and subject to the votes of the members, to say, “ Under the circumstances now existing, this country is an ally of ours and we proclaim it as a country whose constitution should not be overthrown by force by Australians, or against whom war should not be levied by Australians”. Having made the proclamation, should war be levied against that country, the Parliament must proclaim the enemy of that country for any crime to be committed by an Australian citizen. Everything should be made clear at that stage. Nobody should be able to make a mistake about who is an ally and who is a friend. The provision in question gives the Australian Government an additional means of assisting a friendly government. I do not believe it is right to say that this provision would lead to the drawing of an invidious distinction between countries, because clearly the Parliament would not proclaim a country as one which should be assisted in this way unless that country, in the opinion of the Parliament, stood in need of such assistance. If, for the sake of argument, an attack was made upon the Government of Malaya, it would not be invidious for this Parliament to say that the Government of Malaya must not be attacked by Australians or to refrain from saying that the Government of Pakistan must not be attacked by Australians. The circumstances of the two countries would be quite different.
It seems to me that the Opposition’s amendment to proposed new section 24aa (2.) takes rather more power from the Parliament and therefore more protection from the people than does the existing provision in the bill. In the bill as it stands, the protection that is given to the defence force is to be found in the provision that Australians must not act against that force while it either is on active service or is proceeding to active service outside the Commonwealth. Moreover, it is provided that, while the defence force either is on active service or is proceeding to active service, an Australian shall not assist people against whom it is deployed or against whom it is likely to be deployed. Those provisions would give protection to an Australian defence force in transit to, say, Korea to become part of a United Nations force and would prevent assistance to Chinese Communist volunteers, let us say, even before the Australian defence force arrived to oppose them.
– Could that become the subject of a United Nations veto?
– No, it could not. The amendment moved by the Opposition would give to the Governor-General, and not the Parliament, the right to proclaim a country or a force that is opposed to the defence forces of Ausralia, and to that extent it would detract from both the power of the Parliament and the protection which it desired to extend to our defence forces.
– I wish to address myself to amendment No. 11. I cannot find in proposed new section 24aa any definition of sabotage. I know, of course, that it is defined in proposed new section 24ab. In order to obtain some idea of the meaning of the term, I looked at a dictionary. I find that it means firstly, tampering with or inflicting damage upon persons, machinery or other property of employers in connexion with trade disputes and, secondly, action other than violence intended to cause injury to a business. It will be seen that sabotage is in fact an industrial offence. I am not prepared to accept the statement of the Attorney-General (Sir Garfield Barwick) that in modern parlance it has a very much wider meaning. I repeat that sabotage is an industrial offence. It is dealt with in a proposed new section which provides for a penalty of imprisonment for life. It seems odd to me that the Government should want to take that action against unions.
It is true that if those acts are done in good faith, one has some defence. But we all know that on occasions industrial disputes get out of hand and force is used. But once force is used, the offender will come within the ambit of proposed new section 24aa. What is meant by the term “ force “? I wonder whether the mere picketing of a job to prevent people from going onto it could be regarded as being the use of force. The Attorney-General has said that it would not be so regarded unless there was an intent to commit an act of force.
We all know that provocation can occur and that, although it is not intended in the first instance that force shall be used’, it can subsequently be used. That being so, the proposed new section to which I am referring could be used against a particular trade union group.
The Attorney-General has stated - I do not accept the argument - that the prescription of a penalty acts as a deterrent, lt could act as a deterrent in the case I have in mind. The fact that certain action might bring workers within the ambit of the proposed new section could prevent them from exercising their industrial rights. Rather than the penalty acting as a deterrent, the proposed legislation could become a form of government by fear. That is not the way in which a democratic government should attempt to govern. I believe that the term “ sabotage “ should be omitted from proposed new section 24aa, particularly as it is provided for and is fairly clearly defined in proposed new section 24ab.
I ask the Minister to give me a definition of the term “ force “ and to say whether picketing or even passive resistance in the circumstances of a political dispute could be regarded as being force. Could staying away from work or refusing to perform work of a certain nature be regarded as the use of force? Under the industrial arbitration legislation of Western Australia, a person is regarded as being on strike when he refuses to accept employment in an industry in which he is usually employed. If a person holds a certain view in relation to a political or industrial issue and he decides not to go to work, and in that way perhaps holds up supplies that are going to a part of the defence forces, does he come within the ambit of the provision we are considering? We know that in the past repressive measures , such as these have been used against the trade -union movement. We know that -in outback parts of New South Wales and .Queensland gum trees form the headstones of many trade unionists. That was in the early -days, of course, when the trade union movement was enedavouring to establish itself, .b.ut such thin<><! -could happen -.again. J think that it is hari -for the Government to .attempt to coerce the trade -unions .with legislation of this nature.
I wish to .refer , to the .provision regarding proclaimed countries. The act .originally provided for protec.ti.on of the King’s dominions. We have since seen the evolution of the British Commonwealth of Nations. The position has altered somewhat, but nevertheless the legislation .-before the committee proposes to go beyond the members of the British Commonwealth and to .relate to other .countries as well. When the -bill becomes -law, countries -may he proclaimed, and it will be necessary for the people of . Australian tto find . out who their enemies are. For instance, if the United States of. America were ‘to become a proclaimed country for .the purposes of the act, how . would we find out who the enemies :of the United States were? lt would be ,an offence for Australians to commit offences against a proclaimed country for whose ;foreign policy the United States was responsible. How would we learn for which countries the United States was responsible in respect of foreign policy?
As ‘honorable senators know, at the present time there is conflict to the north of Australia between the Dutch and the Indonesians over West New Guinea. As I understand it, we are friendly with both the Indonesians and the Dutch. Recently, when an aircraft carrier belonging to the Dutch Navy was proceeding to West New Guinea, seamen at Fremantle refused to provide berthing facilities for it. In similar circumstances, would seamen come within the provisions of the proposed section?
– How could they? lust relate the incident to the words that you suggest might cover it.
– Supposing that Holland had been proclaimed a friendly country. That action by the seamen-
– What action?
– The refusal to provide berthing facilities for an aircraft carrier that was proceeding to ‘West ‘New Guinea.
– Which paragraph .do you suggest might be .applied to .that .incident? Is it the .-one .reading, “,to overthrow by force .or :violence 4he established government……. of ,a proclaimed country “?
– No. I am referring to paragraphs (i) and (ii) of proposed section 24aa(1.), which provide that a person shall not levy war, or do any act preparatory to levying war, against a proclaimed country, or assist by any means whatever, with intent to assist, a proclaimed enemy of a proclaimed country.
The seamen to whom I have referred were objecting to an aircraft carrier showing its guns - the old story - in West New Guinea. They were of the opinion, rightly or wrongly, that the carrier should not be assisted to proceed to that area. They had the erroneous idea that by refusing their assistance to bring the carrier into Fremantle harbour it would be prevented from doing so. As we know, an aircraft carrier is one of the easiest vessels to berth without the assistance of tugs, because it is only necessary for its aircraft to use their pro.pellors for the ship to be taken right to the wharf.
– If they did intend to assist a proclaimed enemy of a proclaimed country, would not that properly be a crime?
– What I want to know is whether the Minister can tell me whether action of that kind would come within the scope of the provision. The seamen at Fremantle were merely objecting to the aircraft carrier going to West New Guinea. I do not know whether their action would be considered to be assisting an enemy. As I understand the position, there is a conflict between the Indonesians and the Dutch, who are both friendly to Australia.
I think that, overall, the provision is a bad one. The idea of proclaiming countries should have been left out of the bill. We should be concerning ourselves with our internal defence and with protecting Australia. We of the Opposition are prepared to assist the Government to protect Australia and the British Commonwealth of Nations as much as we possibly can, but this legislation means that we shall be committed to protecting the .interests of any country that the -.Government declares should be protected. It is quite useless to say that the Parliament has a voice in deciding the countries which shall be proclaimed. I remind the committee that although a resolution of both -Houses of the Parliament is required, the Government has a majority in both Houses. As Senator Henty has said on many occasions, Sir, when you have the numbers you use them. If you have a majority in both Houses of the Parliament, you can carry any resolution that you wish to have carried and proclaim any country that you wish to proclaim. I object to the provisions that I have been discussing.
– I point out to Senator Cant that before action could be taken against a person under .proposed section 24aa, it would have to be proved that the offence complained of had been done with the intent to overthrow the Constitution of the Commonwealth by revolution, or to overthrow by force or violence the established government. Therefore, unless it could be shown clearly that the kind of industrial action to which he has referred - he mentioned staying away from work - had been done with intent to overthrow the Commonwealth, the action would not come within the scope of the provision. Staying away from work would not come within it, in any case. The important thing is that intent must be proved. The definition of “ force “ is left to the commonsense of a jury. The necessity to prove intent runs through the whole proposed section.
Regarding the hypothetical case mentioned by the honorable senator, I should say that if the Parliament proclaimed a particular country as a friendly country, and also proclaimed an enemy of that country as one which should not be assisted, upon proof that a person had acted with intent to assist the enemy, that act would come within the provisions of proposed section 24aa, but only then.
Question put -
That the words proposed to be left out (Oppotion amendment No. 11 - vide page 2109) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . ‘8
Question so resolved in the negative.
Question put -
That the words proposed to be left out (Opposition amendment No. 12 - vide page 2109) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 8
Question so resolved in the negative.
Question put -
That the words proposed to be left out (Opposition amendment No. 13 - vide page 2109) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 8
Question so resolved in the negative.
Question put -
That the words proposed to be left out (Opposition amendment No. 14 - vide page 2109) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 8
Question so resolved in the negative.
Amendment negatived. (Opposition amendments Nos. 15 and 16, being consequential on the acceptance of amendments already negatived, were not proceeded with.)
Clause 24. (Proposed section 24ab). (Opposition amendments Nos. 17 to 20.)
– I move - (Opposition amendment No. 17.) Proposed section 24ab, leave out “, damage or impairment”, insert “ or damage “. (Opposition amendment No. 18.) Leave out paragraph (a) of sub-section (1.) of proposed section 24ab, insert the following paragraph: - “ (a) that is used, or intended to be used, by the Defence Force or a part of the Defence Force or is used, or intended to be used by the armed forces of a country that are in the Commonwealth or a Territory not forming part of the Commonwealth with the consent of the Governor-General; “. (Opposition amendment No. 19.) Proposed section 24ab, sub-section (1.), at end of paragraph (d) add “ and that is of use in time of war “. (Opposition amendment No. 20.) Leave out sub-sections (3.), (4.) and (5.) of proposed section
Opposition amendment No. 17 leads me to ask the Minister to explain the necessity for the word “ impairment “ in relation to an act of sabotage in proposed new section 24ab (1.). Our amendment No. 18 is directed to the reference to a “proclaimed country “ in paragraph (a) of sub-section (1.) of proposed section 24ab. The amendment flows from the attitude that the Opposition took to the proclaiming of countries in preceding proposed section 24aa. I do not propose to argue that again.
Opposition amendment No. 19 proposes to add the words “ and that is of use in time of war “ to the end of paragraph (d) of proposed section 24ab (1.). The significance of that lies in the fact that paragraph (a) defines an act of sabotage as the destruction, damage or impairment for a purpose intended to be prejudicial to the safety of the Commonwealth, of arty article that is used or intended to be used by the Defence Force or by the forces of a friendly country that are here with our consent. That is a clear relation to defence. Paragraph (b) provides that an act of sabotage means - the destruction … of any article - that as used, or intended to be used, in or in connexion with the manufacture . . . of . . . apparatus of war;
Paragraph (c) is similarly worded in relation to defence, lt refers to the destruction of any article - that is used, or intended to be used, for any purpose that relates directly to the defence of the Commonwealth.
The real difficulty, in the absence of a nexus with defence, comes in paragraph (d), which relates to an article which -
As I have said, the Opposition proposess to add to that paragraph the words, “ and that is of use in time of war”.
Our problem arises from the number and variety of places that can fit into the definition of “ prohibited place “. If we refer to section 80 of the principal act, we find paragraphs (a), (aa), (b), (c) and (d) relate to “ prohibited place “ and several of them require a proclamation by the GovernorGeneral. The Opposition is particularly concerned with paragraph (b), which provides that a prohibited place shall be -
Any place not belonging to the King or the Commonwealth where any ship, arms, or materials for instruments of use in time of war, or any plans or documents relating thereto, are being made, repaired, or stored, under contract with, or with any person on behalf of, the King or the Commonwealth;
It is quite clear that materials relating to defence can be stored or can be in the course of being repaired or of being fabri cated in some way in’ a* very small portion of an industrial concern. That turns the whole establishment into a prohibited place, and whilst there may be one relatively minor activity in one corner of a great factory, the rest of it may be concerned with purely civilian matters. In certain industrial areas, one may find hundreds of factories that are concerned with some activity related to defence. It is vastly important that if the offence of sabotage may be committed in relation to articles and be visited with the penalty of some fifteen years’ imprisonment, the net ought not to be cast too widely. That is the thought of the Opposition. Under the clause as drawn, the places need not be proclaimed. There is no provision even that a sign be exhibited to show that these are prohibited places.
– Would that matter when, after all, the real gravemen of the offence is the men’s reason - treacherous or treasonable intent?
– It is more than just an intent. There are, as I understand it, three elements in the offence. First, the person must commit an act that sabotages, damages, injures or impairs an article. Secondly, the article must be one of four specified kinds. Up to now, I have been talking about the fourth kind of article that’ can be sabotaged or damaged. Thirdly,, there must be an intent to prejudice thesafety and defence of the Commonwealth. There must be an act and an intent to prejudice security, and the act must be directed to the damage of specified articles-. Our amendment is directed to the clear specification of the articles that are not to be sabotaged. We understand quite clearly the ingredients of the offence. We say that the provision as it stands is altogether too wide. Paragraph (d) of proposed section. 24ab (1.) relates to an article - that is in or forms part of a place that is aprohibited place within the meaning of sectioneighty of this Act.
The Opposition says that the offence ofsabotage is far too wide. In only a small corner of a factory there may be activity connected with defence, but the whole place and all the things in it become capable of being sabotaged. All that the Opposition asks is that the provision be narrowed torelate to matters that have some connexion. with war, and that is the purpose of amendment No. 19. in view of the scope of the definition of prohibited places and the utter lack of identification, the provision is altogether too wide.
I now come to an amendment that, quite frankly, I had hoped to avoid to-night. It relates to the evidentiary provisions. I do not know whether at this stage the Minister would like to deal with what I have said before I embark on a discussion of that amendment.
.- I should like to answer, if I can, the points raised by the honorable senator. He asked me why we had in the bill a provision relating to impairment as well as to destruction or damage. I think it is reasonably clear that a machine filling shells or any other machine that is necessary for the production of materials for the defence forces could, without being destroyed or damaged, have a vital part removed and be impaired. The object of the person doing the act would be achieved just as if destruction or damage had been done - at any rate until a new part was put into the machine.
I do not see why there is objection to proposed’ section 24ab (I.) (a). I think it is reasonable that material used by a defence force in the Commonwealth or in a territory not forming part of the Commonwealth should be protected against sabotage, even if the troops are not Australian troops but are troops of a country which the Parliament has proclaimed to be friendly. It seems to me that if the Parliament proclaims troops to be friendly troops, whether they are in the Commonwealth of Australia or not, they should be protected against acts of sabotage by Australians. The amendment proposes that the provision be eliminated and that instead there be written in .protection against damage to an article - that is used, or intended to ii used, by the Defence Force or part of the Defence Force or . . . the armed forces of a country that are in the Commonwealth or a territory not forming part of the Commonwealth with the consent of the Governor-General.
That would detract from -the power of the Parliament to proclaim a friendly country, and would enable the Executive to declare that the troops were here, in effect, as the troops of a proclaimed country would be -under the bill as it now stands.
The third point raised by the Leader of the Opposition refers to a person being in any prohibited place, near any prohibited place or damaging things which would be of assistance in time of war. That surely means almost anything, because in time of war, almost anything is of use. He would not be committing any offence unless his intent of overthrowing the Government or committing acts of sabotage could be proved to the satisfaction of a judge and jury.
– Amendment No. 20 relates to the evidentiary provisions. It opens up a very important matter that I think we would not dispose of rapidly. We could on this amendment, I believe, dispose of it in relation to the other two places where the provision is repeated. Having regard to the fact that we have to deal with an exactly similar provision in regard to espionage and official secrets, in my view the one debate would cover the three matters and, so far as the Opposition is concerned, would eliminate debate later on. I put it to the Minister that as there has been a long debate on this bill to-night, he may consider the time opportune to adjourn.
– I would prefer to continue the debate on amendment No. 20 for at least a while. I have heard some rumours to the effect that an amendment to amendment No. 20 would be sought. I have no official intimation as to that, and I would prefer to continue for a while.
– As I shall have another opportunity to deal with this matter, at this stage I shall put the position very briefly, in the hope that having floated the discussion we may continue on another day. Proposed sub-section (3.) and the subsections associated with it, stem primarily from the British Official Secrets Act of 1911. The type of provision we are about to discuss appeared in only one section - namely, section 78 (2.) - of the original Crimes Act. ‘It was taken from the British Official Secrets Act of 1911. The whole of that act was adopted by a Labour Government on the outbreak of the First World War in 1914. At that time there was only one comparable provision in a vagrancy act which was passed in about 1871, under which the maximum term of imprisonment that could be imposed was three months. But this evidentiary provision moved into the Australian Crimes Act in the context of the crime of espionage which attracted a penalty of seven years’ imprisonment. This is an indication of the danger of starting this type of thing. The provision began in a mere vagrancy act in England in respect of offences attracting a maximum penalty of three months’ imprisonment, and gravitated into the British Official Secrets Act, the Australian Crimes Act and similar acts in other dominions. Support is sought from time to time on the score of its general acceptance.
The truth of the matter is that the section we are discussing, which was written into the act in 1914, has never been used in Australia. We are fortunate in that we have had very little spy activity. Although this provision at first was applied to espionage only, under the bill it is now being extended to sabotage and breaches of official secrets, too. It does not apply to treason or treachery, but it applies to the other three major crimes.
Having mentioned the preliminaries, I ask: What does the provision do? In each of these crimes there is the element of an act and also the element of disloyal intent. This provision, if I may paraphrase it, will enable that second ingredient of intent to be proved without establishing any particular act; it will permit intent to be proved from the circumstances of the case, the accused’s conduct, or his known character as proved. In normal circumstances, in any criminal case relevant facts, such as the circumstances of the case and the conduct of the accused in relation to the particular act which constitutes the offence, are always taken into account. The provision does not add anything if those two factors are relevant to the crime. But the words “ or his known character as proved “ in the provision cut straight across the wellestablished principle that the accused’s character cannot be put in issue, with very few statutory exceptions, unless through his own act in attacking the prosecution and its witnesses or in alleging his own good character. I submit to the committee that actions that tend to establish bad character can be proved at any time, apart from this provision, as long as they are relevant to the crime constituting the offence, or if they are all part of what the law terms the res gestae, the thing that is done, and are intimately connected with it in a way that explains and makes sensible the whole of the provision.
I know that there is interest in this matter, so I will refer to a case that was decided by the High Court of Australia as recently as March last. It is the Attwood case - a murder trial in Melbourne. It deals with this very important point. It is reported at page 537 of the “ Australian Law Journal”, of 21st April, 1960. It bears on the very issue that we are now discussing. It deals with the Victorian Crimes Act. This was a case in which a man was charged with taking a woman by the throat in an hotel, throttling her and killing her. He was convicted, and the conviction was taken on appeal from the Court of Criminal Appeal of Victoria to the High Court. The High Court had under consideration a section of the ViC.torain Crimes Act which reads -
Provided that a person charged and called as a witness in pursuance of this section shall not be asked, and if asked shall not be required to answer any question tending to show that he is of bad character.
Despite that provision, the High Court held that an accused may be asked questions tending to show that he is of bad character, if they are relevant to the question whether he did or did not commit the offence charged. The report contains some very illuminating references to the common law on this subject.
I feel that this hour is altogether too late for me to read paragraphs of law reports to the committee. I confess that I am an unwilling inflicter of punishment at the moment. I would be very glad if I did not have to read this report now.
– How long do you propose to continue on this point?
– I will take a few minutes in referring to this report. I hope that the Government will not consider sitting beyond midnight.
– I asked my question with that in mind. I wondered whether what you have to say on amendment No. 20 would take you until midnight.
– Do you think you will finish your speech before midnight?
– I hope so. Would it be convenient to report progress and for the Senate to adjourn when I conclude my remarks?
– It might be convenient to take a vote on amendments Nos. 17, 18 and 19, instead of on amendments Nos. 17, 18, 19 and 20.
– I suggest to the Minister that that procedure would carry the sitting appreciably after midnight. I hope that he will not put honorable senators to that inconvenience. The Minister knows what I would like to do.
– I think the Leader of the Opposition misunderstood what Senator Gorton suggested. He suggested that a vote be taken on amendments Nos. 17, 18 and 19.
– I would be very happy to agree to that suggestion.
– Then we could take together amendment No. 20 and the other clauses to which this argument is relevant, to-morrow. I would be prepared to do that.
– I would be very happy to do that. One principle is involved in the application of this provision to the three offences of sabotage, espionage and breaches of official secrets. This is a debate which may be protracted, but it is a matter that is worthy of some debate. I would not like to rush it at a time when I am reasonably tired. As the Minister is agreeable to that course, Mr. Chairman, I would welcome the divisions being taken now on amendments Nos. 17, 18 and 19.
Question put -
That the words proposed to be left out (Opposition amendment No. 17 - vide page 2117) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 8
Question so resolved in the negative.
Question put -
That the words proposed to be left out (Opposition amendment No. 18- vide page 2117) be left out.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . 8
Question so resolved in the negative.
Question put -
That the words proposed to be added (Opposition amendment No. 19 - vide page 2117) be added.
The committee divided. (The Chairman - Senator the Hon. A. D. Reid.)
Majority . . . . 8
Question so resolved’ in the negative.
Senate adjourned at 12.1 a.m. (Wednesday).
Cite as: Australia, Senate, Debates, 6 December 1960, viewed 22 October 2017, <http://historichansard.net/senate/1960/19601206_senate_23_s18/>.