27th Parliament · 2nd Session
The PRESIDENT (Senator the Hon. Sir Alister McMuIlin) took the chair at 10 a.m., and read prayers.
– 1 present the following petition:
To the Honourable the President and Members of the Senate in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully sheweth:
That the Australian Education Council’s report on the needs of State education services has established serious deficiencies in eduction.
That these can be summarised as lack of classroom accommodation, desperate teacher shortage, oversized classes and inadequate teaching aids.
That the additional sum of one thousand million dollars is required over the next five years by the States for these needs.
That without massive additional Federal finance the State school system will disintegrate.
That the provisions of the Handicapped Children’s Assistance Act 1970 should be amended to include all the country’s physically and mentally handicapped children.
Your petitioners most humbly pray that the Senate in Parliament assembled will take immediate steps to
Ensure that emergency finance from the Commonwealth will be given to the States for their public education services which provide schooling for seventy-eight per cent of Australia’s children. And your petitioners, as in duty bound, will ever pray.
Petition received and read.
– My question is directed to the Leader of the Government in the Senate in his capacity as the representative in this chamber of the Treasurer. Is it correct that considerable advantage would flow to Australia by becoming a member of the Organisation for Economic Co-operation and Development? Has Australia made a formal application for membership? What progress has been made towards Australia becoming a member of that body?
Senator Sir KENNETH ANDERSONThe Leader of the Opposition has asked me to make a comment about Australia’s possible entry into the OEDC. I feel that I should take the question on notice because any pronouncements or any decisions in relation to this matter, which is a matter of policy, naturally would stem from the Treasurer, as he mentioned, or the Prime Minister. 1 recognise the interest that the Leader of the Opposition has displayed in this subject and I recognise the merit of some of the points he has raised. I think the Leader of the Opposition should put his question on the notice paper in order that the appropriate Minister can comment on it.
– My question is directed to the Minister for Works. The Minister will recall a previous question that was asked concerning the metric system of weights and measures and the progress being made by the Department of Works in setting a timetable for its introduction into the Department’s activities. I also refer to the liaison between the Department of Works and private construction industry generally. Can the Minister inform the Senate as to what are the actual arrangements between the Department of Works and the private construction industry in the implementation of the metric system?
– The actual liaison between other sections of the industry is carried on by reason of the fact that the Metric Conversion Board has appointed 10 advisory committees, one of which deals with the Building and Construction Advisory Committee. That Building and Construction Advisory Committee has established 4 standing sub-committees. In the government construction sector Mr Milton, the Director, Metric Conversion, in the Department of Works, is the Chairman. That sub-committee of the government construction sector includes representatives of the Commonwealth Scientific and Industrial Research Organisation, the Public Works Departments of the States, the Department of Housing, the Department of the Interior, and the Council of Local Government Associations. So the whole thing has been co-ordinated through the Metric Conversion Board, but the Department of Works, through Mr Milton, as Chairman of the government construction sector, is responsible for bringing together that sector of the construction industry and it, in association with the other 3 sub-committees, wi)l have liaison with the Board’s 10 committees on this one committee of the Building and Construction Advisory Committee. That is the situation so far as the Metric Conversion Board is concerned. But then under the auspices of the Standards Association of Australia there is a series of committees, and there again Mr Milton will operate to liaise with those committees and integrate the work with the Metric Conversion Board.
– My question which is directed to the Minister for Civil Aviation refers to the recent answers given by the Minister relating to charter flights generally and the application made to the Minister by World Airways Inc. in connection with charter nights between the United States of America and Australia. I ask the Minister: Is it a fact that the application of World Airways, Inc. is based on the proposal for IS charter flights into Australia, which would not detrimentally affect existing services of Qantas Airways Limited to the United States of America? Would the acceptance of the proposal entitle Qantas to a reciprocal 15 charter services, and would these charter services be profitable for Qantas? Has the Minister approved of this proposal? What is the current position in respect of his consideration of the proposal for Qantas to enter the charter business generally on a full time basis?
– I, like the honourable senator, have had the advantage of reading this morning’s newspaper in which there is said to be a statement around the place produced by a consultant to the Australian Federation of Air Pilots, said to be 8,000 words in length and said to be made available to parliamentarians. I cannot find anyone who has it. I would like to get it in order to have a look at it because I would be interested to know what it had to say. Some of the questions that Senator Bishop asks have an obvious relation to this, and I have the same interest in them as he has. The position of World Airways Inc. is that it made an application for 15 charter flights. I received a cable from the President of World Airways about a week ago to say that he was quite prepared to defer the application for consideration until 15th June. So he is in no urgency about it. I have been considering it very carefully, as has the Department. As I understood the application, it contained . a guarantee that the people who would be brought in the 15 charter flights would be a captive market of World Airways. The company would bring them here and’ would take them away. If it did not bring them here and take them away nobody else could or would. If that is the case, as the company stated it to be, obviously there would be no opportunity for Qantas so I would want to investigate that a little more carefully; Secondly, what Qantas does about charter flights is essentially a matter for the Qantas board and management: They are charged with running the company, not the Minister. I have great interest in what they are trying to do and I encourage and help them, and so does the Department, but’ I do not give them directions.
– 1 direct my question to the Minister representing the Minister for Primary Industry. In view of the fact acknowledged by the Government that many rural holdings which constituted an economic unit some 10 or 15 years ago are no longer so because of inadequacy of area, has a determination yet been made in response to the representations of the Upper Murray Ex-Servicemen’s Land Settlement Association at Loxton; South Australia, for permission for block holders to purchase at departmental reserve prices neighbouring land settlement blocks, the leases of which have been surrendered?
– At the present time I do not have any details of the matter referred to. I will approach the Minister for Primary Industry and see what information I can obtain. Perhaps it would be best if the honourable member put the question on notice and I will obtain the information for him in that way.
– I address my question to the Minister representing the Minister for Immigration. Why is it necessary for the Department of Immigration to bring migrants to this country by ship at a dearer rate than that for which they can be brought here by air - naturally using Qantas Airways Ltd? My reason for asking this question is that one reads of the large number of air pilots who seemingly have received notice from Qantas, no doubt because there is no work. It puzzles me why the nation pays more per head, I understand, for sea travel for migrants than it would if they were brought to this country by air.
– The honourable senator’s question involves 2 matters which I think should be investigated before an adequate answer can be given to him. First there is need for verification of the assumption upon which the question is based, namely, that it does cost more to bring a migrant to Australia by ship than by air.. The second point is the substance of the question he asked- as to why the change cannot be effected if the assumption is correct. I will convey the question to the Minister for Immigration and endeavour to get a reply for the honourable senator.
– My - question is directed to the Leader of the, Government in the Senate. In view of world Press speculation about pressures on the United States dollar, will the Minister comment on the likely effect on Australian overseas trade if there is any devaluation of the United States dollar in the future?
That is an interesting hypothetical question which I do not think should attact an answer at question time.
– My question is directed to the Minister for Civil Aviation. In reply to a question by me on 16th February the Minister stated in a written reply that the only applications for specific traffic routes which were pending were from the Netherlands and Germany. I also asked what applications had been made for regular landing rights in Australia by overseas scheduled airlines in the last 2 years, what applications were pending and what was the status of each application. The Minister made no reference to any application by Aeroflot or the Soviet Union. Will the Minister tell us whether any application has been pending? Was there at the time I asked this question? Is it a fact that the Soviet Union and Aeroflot have been pressing heavily over the last 2 years for regular landing rights in Australia?
– It is not a fact that Aeroflot has been pressing heavily for landing rights in Australia. What is a fact is that the Soviet Union, in the normal process, would have had some discussions with the Australian Government on a foreign affairs level. I think that last year,’ in about August, the new Soviet Ambassador made a courtesy call on me, which was very kind of him, and he discussed the general question of Australia-Soviet Union flying relationships. He undertook to come back and discuss the matter further before’ the end of last year, if there was anything more that he wanted to talk about. I have not seen him since then, nor have I personally received any application. Australia always is looking at opportunities for profitably extending its air traffic network: No opportunity exists which we . do npt take if it is one which can be successfully and sensibly taken. To the best of my knowledge at this time my Department has no firm application from the Union of Soviet Socialist Republics or its carrier Aeroflot.
– Has the Minister representing the Minister for Shipping and Transport seen a report that the recent ship stewards’ strike has cost shipowners some $20m? Would not this big cost have an adverse effect on freight rates, encouraging further increases? Also, would not the full cost of this strike be far greater than the $20m and would it not include added cost and considerable inconvenience in Tasmania and Kangaroo Island in South Australia, which have no alternative means of transport? As this type of costly and unnecessary strike has been encouraged by the militant attitudes of some union leaders, will the Government do all in its power to discourage and check this type of industrial action which is so costly?
– It would be true, without doubt, that the stewards strike cost a. lot of money. It cost a lot of money to the shipowners, the Australian public and the people involved. I cannot say how much it cost; as the honourable senator said, one report states that it cost $20m. It would certainly have an adverse effect on Tasmania. It is equally true that the Government deplores strikes and hopes not to have them at all, but it will take an active part in resolving them once they have begun.
– Is the Minister for Health aware that pest strips containing the chemical dichlorvos have been reported to be dangerous to the health of humans? Will the Minister,, as a matter of urgency, arrange for his Department to conduct appropriate tests and if such tests disclose any danger to humans or domestic animals cause the strips to be withdrawn from the market?
– I am unable to verify the basis upon which the honourable senator has asked his question. However I have noted the query he has made and I certainly will have inquiries undertaken. If tests are necessitated, they will bc undertaken.
– By way of preface to my question addressed to the Minister representing . the Minister for Immigration, I refer to the need for more effective liaison between him and the Minister in the other place. I seek an explanation as to why the Minister for Immigration gave an answer to a question identical to one asked by me yesterday to which I could not receive an answer. The question related to methods to be used in relation to our immigration cutback from various countries and I had alerted the Minister in this place several hours before the Senate convened. Secondly, I refer to the prolonged delay in giving me an analysis of the share handled by Qantas Airways Limited and the other airlines in the 60 per cent of migrants transported by air to Australia.
– Two specific questions are asked by Senator Mulvihill and they raise a number of connected matters. The first question he asked was why I was not able to give him an answer to a question which he asked yesterday when the Minister for Immigration who, of course, is in another place, was able to give an answer to a similar question when it was asked in the other place. The simple reason is that I did not have the information before me adequately to answer the honourable senator’s question. I inform him, however, that the major part of the reduction in the immigration programme for 1971-72 will be in the field of assisted migration. This has been reduced by some 23,500 from the programme for which the funds were initially appropriated in the 1970-71 financial year.
The reduction in this programme has been spread over most or all of the countries from which assisted migrants come. Precise details of the reduction in individual programmes have not yet been determined. I regret that the honourable senator was not able to have the information supplied to him yesterday notwithstanding that he had given me some indication of the nature of the question he was proposing to ask. I trust that he appreciates that at this time of the session we are all working under pressures and that is the reason why the information was not available. With respect to the other matters which the honourable senator raised. I suggest that he either ask me a question on notice or a question without notice.
– I direct this question to the Minister representing the Minister for Shipping and Transport. Is it not a fact that Adelaide and the South Australian economy generally are suffering a series of continuing handicaps through lack of connection with the transcontinental standard gauge railway complex? As the disability can only be overcome by the provision of the Port Pirie-Adelaide link, can the Minister tell us when work will commence on this inordinately delayed project? Will the Government do all within its power to expedite this vital work?
– I think it will be agreed that I have answered quite a number of questions about this vital matter to South Australia on behalf of the Minister for Shipping and Transport both to the best of my ability without information and with information when I had it. At the present time all I can say positively is yes, the Commonwealth Government will do all it possibly can to expedite this essential link. We know how important it is to South Australia. We are not the only party involved in this project but we have some consciousness of its importance as has any other honourable senator from South Australia particularly the honourable senator who asked the question.
– In view of the fact that the Minister for Health was apparently not joking on Tuesday when he supported the voluntary code of ethics for cigarette advertising on television will he answer the following question: Is not the prime object of the Department of Health the prevention of disease? What has the Department of Health done about the prevention of disease caused by smoking? What is the estimated total expenditure of the Department for this financial year? What is the total expenditure on advertising for prevention of disease? What is the total expenditure on advertising for prevention of disease from smoking? Finally, as the Minister failed to answer this question on Tuesday I ask him again: Will the Government advertise on television during the hours of 4.30 p.m. to 7.30 p.m. the ill effects of smoking?
– I say immediately in response to the last question the honourable senator asks that the answer is no. However, I think it is unwise to attempt to categorise the activities of the Department of Health in the rather narrow way with which the honourable senator concerned himself. The Department has many functions which do include preventive health measures but primarily it administers the various pieces of legislation which are approved by the Parliament. Additionally, the Department has taken part in considerations of the National Health and Medical Research Council on questions of smoking and health generally. The Department has certain health education functions in the Australian Capital Territory and the Northern Territory and involved in this health education programme is the giving of information, particularly to school children, on the hazards involved to health in cigarette smoking.
As the honourable senator is aware, the Department has taken part in the negotiations with the tobacco manufacturers and le commercial radio and television stations with regard to the voluntary code of which an announcement was made this week. The honourable senator has also requested certain details about the expenditure of the Department He would be aware that the amount voted for expenditure by the Department of Health in the past year was $477m. There is no specific allocation for advertising in respect of disease, but the Department does issue many publications which stress those aspects. As to the expenditure of a specific sum on advertising the ill effects of smoking, no part of the expenditure can be regarded as directly allocated to that function.
– Can the
Minister representing the Minister for Repatriation advise the Senate whether his colleague has received the 1971 request to the Government by the Returned Services League for increases in repatriation benefits in the forthcoming Budget? Will Cabinet discuss the request before bringing down the Budget? I remind the Minister that the Senate on 7th April - 4 weeks ago - carried an amendment by 25 votes to 20, as follows:
But the Senate is of opinion that -
The pension rate for the T. and P. I. exservicemen, the general rate pensioners and war widows should not have been allowed to decline notwithstanding the proposed increases, in relation to average weekly earnings.
Will the Minister assure the Senate that these matters will be thoroughly considered by the Government before the Budget is produced in this Parliament next August?
Minister for Repatriation did receive representations from ex-servicemen’s associations including the Returned Services League. I know that he has received the papers presented by the RSL. I am also aware of the resolution of the Senate to which he referred. I can assure the honourable senator that at all times the Department of Repatriation keeps under thorough examination the needs of exservicemen and does its best within the limits of its finances. I will draw the Minister’s attention to the question asked by the honourable senator. If any further information is available, I will let him have it.
– Has the attention of the Minister for Health been drawn to an announcement of a strong probability of a breakthrough in the treatment of Parkinson’s disease by doctors and authorities at the Royal Brisbane Hospital? If the Minister is aware of the details of this important matter,will he make a statement to the Senate?
– I personally am not aware of the matter mentioned by the honourable senator, but I am quite sure that if there have been any breakthroughs, they will certainly be Known to officers of my Department. I will take up the matter with my Department and I will let the senator have any information which comes to me.
– I ask the Minis ter for Works: ls his Department; planning sections 3, 4 and5 of the Commonwealth Centre in Melbourne? If so, will he ensure that underground parking will be provided in the new buildings, as unfortunately it was not providedin sections 1 and 2 although the City of Melbourne building regulations make it compulsory for private builders to provide a certain amount of parking space?
– It is a fact that the Department has been designing sections of the Commonwealth Centre in Melbourne. The designs are at an advanced stage of preparation. I am unable to say whether the plans include underground parking, but I will bear in mind what the honourable senator has said. I will have the matter referred to the Department and I will give the honourable senator fuller information in a day or two.
– Can the Minister for Immigration now supply me with details of the air carriers who participated in the transport of 60 per cent of Australia’s migrant intake?
– The honourable senator’s question covers a very wide field and much of the information he seeks is of a detailed character. I suggest that, if he wants the detailed information, he approach me or the Minister for Immigra tion or put the question on the notice paper. However, I can give him some broad information which may be of assistance to him. In the first place, no statistics are maintained of the individual airlines which bring to Australia migrants who make their own travel arrangements, but there are some statistics of those airlines which bring to Australia migrants who come as assisted migrants either on charter flights or on commercial flights. Summarised, the information which has been supplied to me indicates that, where the bookings have been made by the Commonwealth Department of Immigration, roughly 56,500 in 1970-71 were booked through Qantas Airways Ltd and approximately 1,000 were booked through other airlines. With regard to those bookings that are made by the Inter-governmental Committee for European Migration, about 12,000 in that year were booked through’ Qantas and approximately 3,000 were booked through the other airlines.
-I address my question to the Minister representing the Treasurer, although it is a social services matter. Is he aware of the very severe financial shortage which besets homes and hospitals for the aged and infirm throughout Australia? Is he aware, for instance, that one large home for the aged in Victoria - the Greenvale Village for the Aged has at least 1,300 people listed as waiting for admission, but at the same time, due to a financial shortage, is unable to staff and run 2 wards of 36 beds? Is the Minister aware that it is virtually impossible to increase fees in such homes as more than 90 per cent of the patients are age pensioners and the amount payable by them is limited to two-thirds of their pension? Will the Minister seek to secure more Commonwealth funds to assist such worthy institutions, upon requests for such funds from the several State governments?
– The honourable senator asks me a question that is linked to budgetary considerations. So I think it is proper to put it to the Treasurer rather than to the Minister for Social Services. I am aware of the circumstances of some homes for aged people, and I am aware of certain financial contributions that are made through Government agencies to assist such homes. This is a budgetary matter and quite obviously the Government, in the preparation of its budgetary proposals which will come forward in August, will be looking at all these matters as it normally does, and any decisions on policy that are made will be reflected in the Budget.
– Idirect my ques tion to the Minister representing the Minister for Education and Science. Has the Minister seen reports of the forum organised by the Australian Postgraduate Federation in Medicine on the subject of Australia and the Asian Student’, in which Dr Bill McCarthy, who is the world health authority consultant on medical education, described medical courses pursued by Asian students in Australia as ‘inappropriate, inefficient and wasteful both of Asian talent and Australian money’? Will the Government urgently examine the claim in order to prevent this waste?
– Yes, I have had the matter to which the honourable senator refers brought to my attention. The opinion of the contributor to the seminar has been noted. Of course, the figures of students unable to obtain places in New South Wales universities do not allow for the fact that many students submit multiple applications and are successful in obtaining entry to one of the universities to which applications have been submitted. On 27th April, in reply to a question, the Minister for Foreign Affairs stated that private overseas students enrolled in bachelor degree courses at Australian universities represented only 5.9 per cent of the total full time enrolment and had little effect on the admission of qualified Australian students. This fact was brought to the attention of the forum by representatives of the Department. While some of the developing countries have succeeded in meeting their requirements for medical training, others continue to need assistance at both undergraduate and post graduate levels. Until more effective forms of training become available it is hoped that places will be found in the quotas established by the medical faculties of Australian universities for appropriate candidates from developing countries.
– My question is directed to the Minister for Works. It refers to the Minister’s answers in the past about the Commonwealth Centre in Adelaide and to his interest in that project. Recently he stated that the matter was still under consideration. Is the Minister able to inform the Senate whether the possibility of building a Commonwealth Centre in Adelaide has since been determined?
– That matter is being given energetic and continuing attention, but a decision is not yet able to be made. I assure the honourable senator, whose interest in the matter I know, that he will be informed as soon as any effective steps have been taken.
Senator DOUGLAS McCLELLANDI. direct a question to the Minister representing the. Minister for Labour and . National Service. Late last month - about a week ago -I received an answer to a question on notice as to what progress had been made by the Government towards the establishment of child care centres. In a written reply I was told that the matters referred to in the question were being considered by an interdepartmental committee, that the evolving of guidelines- and standards to ensure the effective conduct of child care centres needed considerable investigation and that a full exploration of the possible approaches was being made. However, the day before yesterday, in another place, the Minister stated that, because of austerity reasons, the Government had decided not to proceed with the establishment of child care centres? Can the Minister explain why one answer is given to me in the Senate and a different answer is given to a member of the other place?
– I too can become starchy in answers if starchiness is used in questions. It is permissible for me to remind the honourable senator that there was a time interval between the 2 answers and that this afforded time for further consideration of the matter. The result of that further consideration was announced by the Minister for Labour and National Service in another place 2 days ago.
– My question is directed to the Minister representing the Minister for Immigration. I do not know whether he can answer it, but I ask him to obtain the information. In view of the fact that the Government stated recently that selected Asiatics are admitted as migrants to Australia, what was the reason for admission of an average of 1,500 uhselected Mauritians - that is Indians - each year for the last 5 years?
– I am sure that the honourable senator will appreciate that I merely represent the Minister for Immigration in this place. To give an answer to the question he asked is beyond my capabilities in the light of my knowledge at present. I respectfully suggest that the honourable senator should put his question on notice.
– Is the Minister representing the Minister for Primary Industry aware of the seriousness of the difficulties confronting industry and the residents of central western Queensland? Is he aware that the Premier of Queensland has acknowledged the parlous position of these people and has said publicly that this area is a disaster area? The Premier claimed that the State Government had not the financial resources to be able to assist and that it would appeal to the Commonwealth Government. Has the Premier of Queensland made such an appeal and, if so, with what result?
-I think all of us would be aware of the situation prevailing in this area and most of us would be aware that the Premier of Queensland has made a number of representations to the Federal Government. I can recall that in 2 instances the Federal Government has given assistance to this area. I do not have any detail other than that but if further information should be available I shall let the honourable senator have it.
(Question No. 1110)
asked the Minister for
Civil Aviation, upon notice:
Are the landing and servicing facilities at Townsville Airport capable of taking 747 jumbo jets? If not, will the Minister take immediate steps to examine the possibility of establishing such facilities?
– The answer to the honourable senator’s question is as follows:
No. There was a preliminary investigation and it would cost to the order of $15m, to accomodate regular Boeing 747 services. There is no known requirement which would justify Boeing 747’s regularly calling at Townsville.
Senator Sir KENNETH ANDERSONOn 30th April 1971 Senator Mulvihill asked me the following question without notice:
Can the abnormally protracted negotiations between the Commonwealth and New South Wales Governments on the release of land on the foreshores of Sydney Harbour for park purposes be attributed to either the failure of the NewSouth Wales Premier to reply promptly to a request from the former Prime Minister or the high selling price of the land that has been determined by the Commonwealth, which is in contrast with the practice followed by the Government of the United States of America in its relations with the various Stales in that country?
The Prime Minister has informed me that neither of the reasons given by the honourable senator has caused any undue delay in the conduct of the negotiations for the release to the State Commonwealth land around the Sydney Harbour foreshores. The proposed transfer relates to a number of areas located at North Head, South Head, Middle Head and Dobroyd Point and detailed Commonwealth proposals concerning these areas were submitted by the then Prime Minister to Mr Askin in July last year. The Premier replied in October and indicated that the proposals were generally acceptable to the State, though at the same time submitting some further proposals concerning boundaries, conditions of tenure, access and the use of certain buildings now used for Commonwealth purposes. These proposals required further close study and the Prime Minister replied to Mr Askin in mid-April, and suggested that some of the proposals would be better resolved by early meetings of Commonwealth and State officials.
It is not correct as the honourable senator suggested that the prices required for Commonwealth land released to the State authorities have delayed the negotiations and I have nothing further to add in this regard to the advice given to the senator by the then Prime Minister in his letter of 7th September 1970. Once the outstanding matters have been satisfactorily resolved it is hoped that the overall agreement can be finalised quickly between the Commonwealth and State authorities so that the foreshore land to be released can be made available to the people of Sydney for recreation purposes at the earliest practicable date.
– On 25th March 1971 Senator McClelland asked me the following question:
Is the Minister representing the PostmasterGeneral aware that new episodes of the Australian programmes ‘Homicide’ and ‘Division 4’ are being stockpiled by commercial television stations until September next so that the stations concerned can get credits for such programmes when the new Australian drama quotas come into effect and that old repeats of these productions are now being forced by the stations onto the Australian viewers? Does the Minister agree that if the allegation is correct the commercial licensees, who as late as last week illustrated their influence on the ranks of the present Government, are seriously violating the aim of the quotas, which is to secure increased local productions, and that while Australian artists do not receive residual payments for repeat programmes their skills, abilities and talents are being exploited by commercial licensees? Will the Minister refer this matter as one of urgency to the Australian Broadcasting Control Board and insist in the public interest and on behalf of those engaged in the television industry that action be taken by the Board to stop any stockpiling that is being indulged in while repeat programmes become the order of the day?
The Postmaster-General has now furnished me with the following information in reply:
I have received representations from several quarters on behalf of an organisation called the T.V. Make It Australian Committee, which has alleged that stockpiling of Australian drama programmes is taking place.
The Australian Broadcasting Control Board has informed me that the ‘Homicide’ and ‘Division 4’ programmes are televised in two series each week by the Melbourne stations originating these programmes. One presentation comprises, designedly, repeated episodes only; the intention to do this was made clear in publicity when the presentation commenced. I presume the question refers to the other presentation. The Australian Broadcasting Control Board informs me that it has been the regular practice since the inception of the programmes in question to include some repeat episodes. The programmes are thus available to a much wider audience than would be the case if they were presented only on a single occasion and accords with overseas practices. The Board’s inquiries indicate that for the time being approximately one in every four episodes of ‘Division 4’ is a repeat of an episode first televised at least 12 months beforehand. A similar porportion of episodes of ‘Homicide’ televised so far this year have been repeats.
It is to be noted that it is the common practice, all over the world, for repeats to be included in what might be described as ‘first run’ series, since it has nowhere been found possible to produce such programmes on a 52-week basis. Production of new episodes of ‘Homicide’ and Division 4’ is proceeding at the same rate as in past years.
The present practice does not amount to any violation of the aims of the Board’s requirements in regard to Australian drama programmes.
– On 6th April 1971 Senator Willesee asked me the following question:
In directing my question to the Minister representing the Postmaster-General I refer him to Hansard of 15th March in which appears a question on television asked by Senator McClelland. In that question the honourable senator indicated that some Australian made , television films, mainly Homicide’ and ‘Division 4’, were being stockpiled. The suggestion was made that that procedure will be followed until September in order to obtain credits for Australian produced shows. I have been contacted today by the Chairman of the T.V. Make it Australian Committee, who suggested to me that our television industry is in a desperate position. I ask the Minister to treat this matter as urgent and to determine whether the suggestions made by Senator McClelland are factual before we decide in this Parliament on any further action to be taken. The Minister could thus help us to make up bur minds. I am asking merely that the matter .be treated as urgent because September is fast approaching and this is a serious matter for the television industry.
The Postmaster-General has now furnished me with the following information in reply.
The honourable senator refers to a question by Senator McClelland, without notice, on 15th March 1971, concerning repeats of the television series ‘Homicide’ and ‘Division 4’. I have today furnished a reply, supplied by the PostmasterGeneral, to Senator McClelland and I direct the attention of the honourable senator to the information contained therein.
– Pursuant to section 14 of the Defence Forces Retirement Benefits Act 1948-1970, I present the twenty-second annual report of the Defence Forces Retirement Benefits Board on the operation of the Act for the year ended 30th June 1970, together with financial accounts and the report of the Auditor-General on those accounts.
– For the information of honourable senators I present a report produced by the Atomic Weapons Tests Safety Committee entitled ‘Fallout Over Australia From Nuclear Weapons Tested By France In Polynesia From May To August 1970’.
– Pursuant to section -5 of the States Grants ^Secondary Schools Libraries) Act 196$, I present a statement describing the arrangements in accordance with which payments under this Act have been authorised te 1976.
– Pursuant to section 26 of the Tobacco Marketing Act 1965-1966, I present the fifth Annual report of the Australian Tobacco Board regarding the operation of the Act for the year ended 31st December 1970, together with financial statements and the AuditorGeneral’s report ob those statements.
– Pursuant to section 12 of the Marginal Dairy Farms Agreements Act 1970, I present a copy of an agreement made between the Commonwealth and the State of Victoria in relation to the marginal dairy farms reconstruction scheme
– For the information of honourable senators I present the fifth interim report of the Company Law Advisory Committee. The report is dated 12th October 1970 and it deals with the control of fund raising, share capital and debentures. The first, third and fourth interim reports of the committee were presented to the Senate on 19th March 1970 and the second interim report was presented on 21st May 1969.
– I present the report of the Senate Select Committee on Drug Trafficking and Drug Abuse, together with a supplement in the form of a bibliography and a transcript of the evidence taken by the Committee.
Ordered that the report be printed.
- Mr Deputy President, 1 seek leave to make a statement and to propose a motion in connection with the report.
The DEPUTY PRESIDENT (Senator Bull) - Is leave granted? There being no objection, leave is granted.
– Mr President, the report just presented to the Seriate should, if the aims and desires of the Committee are fulfilled, be a valuable social document for the serious consideration and subsequent action of- governments and the people of Australia. Since it was set up on 25th November 1969 the Committee has worked assiduously on a task it realised was of great magnitude and social importance. We held 64 meetings and heard 213 witnesses. As a result of their submissions and our questioning, the transcript of evidence amounts to over 6,400 pages. We sought and received many up to date and valued research documents and, through the co-operation of the Parliamentary Library, we will make available to research scholars and other interested people, as a supplement to our report, a comprehensive bibliography of 456 references.
We commenced our task with little real knowledge of drugs or the problems they pose; but we approached our inquiry with open minds concerning the answers that were required to the broad terms of reference. As a result of the evidence received we have set out our conclusions and have made 26 specific recommendations. I believe these recommendations, and the reasons given throughout the report for making them, should be carefully studied as a matter of urgency by those in authority. It is true that 2 members of the Committee found it necessary to make reservations on 3 of our recommendations but I would .stress that all of the remainder of the report has the unanimous support of the Committee.
I believe our report is comprehensive and that our conclusions and recommendations are a true assessment of the evidence and knowledge placed before the Committee. Not only do I stand firmly in favour of them all; I believe also that they are reasonable and can be put into operation with good and lasting effect. I am convinced, consequent on numerous conversations with many people during the last 15 months and from the evidence and much reading that I have done on the subject - one which has never been out of my thoughts since I was honoured to be appointed Chairman - that many people have been awakened to the problem. Perhaps what is more important is that many of those dependent on drugs, their families and friends have been helped to realise that relief. or recovery from this illness is possible and is very rewarding.
The very fact that this Committee was established has, I believe, already proved of benefit to the community. Due to the excellent publicity given to the proceedings of our inquiry we were I believe acting as a catalyst in making the people and Governments more aware of the problem of drug abuse in Australia and making available valuable information on what could immediately be done to start the long hard drive to stem the rising tide of abuse of drugs among all age groups of our society. Many sectors of the community were at least partly informed of actions they could take to help people suffering or on the threshold of the illness of drug dependency and perhaps they could save others from becoming drug dependent.
To many up till, now, mention of the drug problem conjured up thoughts of heroin, LSD, cannabis and the other illicit drugs. Without trying to diminish the serious situation these drugs pose in our society, it became very evident early in the inquiry that currently in Australia the major drug problem, so far as the health and welfare of the mass of the people are concerned, revolves round the abuse of the socially acceptable and legal drugs - alco hol and tobacco and the therapeutic substances - which in the majority of cases are either legally prescribed or purchased through legal sales outlets. This factor has led the Committee to be explicit in its recommendations both for the short and long term action it advises for dealing with this widespread and serious problem.
The Report is neither an attacking nor condemning document. It seeks to assess the present position in Australia in respect to all forms of drug abuse. It sets out our belief of the causes and effects of this abuse and makes recommendations for the treatment of those suffering from drug dependency. Importantly it stresses that the long term solution lies in education. Our Report suggests a revolutionary recasting of the present approach to education in schools and if those concerned are strong enough and big enough to accept it I believe Australia will become a far happier place, not only in terms of defeating drug abuse but in the contribution education can make to what I call ‘living in the community’. And equally important we must by education, through the minds of our people, give them the reasons and the motivation not to provide a sales market for those drugs which break through our barriers.
We recommend the strongest measures against those parasites in our community who commit, in my mind, the heinous offence of trafficking in drugs. AH the relevant evidence clearly indicates, that just as this rich and developing, affluent country is the new frontier for tourism, so is it the possible new lucrative area for the narcotic drug traffickers to attack. Therefore our own preventive measures must be expanded. We as a nation must accept the challenge that the traffickers will offer to us. A serious ill effect of drug dependency, particularly where the illicit drugs are concerned, is the turning to crime by the victims who are forced to procure the rottenly high price charged on the black market to provide themselves with the drugs, which they feel they cannot do without. In these circumstances crime and drugs become partners.
Statistical information concerning all aspects of drug use and abuse in Australia is extremely weak and unreliable. Your Committee believes this factor to be an important missing link in the chain of knowledge required to deal with drug abuse. Stress is made in the Report on the neccessity for joint Commonwealth and State action to ensure the availability in the future of all relevant statistical knowledge, so that the growth or, more hopefully, the decrease in drug abuse may be known with greater precision to all those concerned in dealing with the problem.
Our report does not minimise the misuse of drugs currently in Australia and it acknowledges the great dangers besetting this country if we do not forthwith take remedial action.. We do remommend a plan for treatment, and in both the short and longterm we set out what we believe are realistic ideas for a combined and continuing drive aimed at decreasing the causes and limiting as far as is possible in respect to illicit drugs, the sources of supply. In regard to the legally and socially acceptable drugs, and the admittedly greatly needed and beneficial therapeutic substances, we advocate the means of decreasing promotion of their sales and earnestly hope the unwise prescribing, which is apparently doing great harm in the community, will be eliminated as far as is practicable.
Of all our conclusions and recommendations we believe that those referring to education and we make admittedly far reaching pleas in this regard, are the foundations on which must be built the entire Australian structure to save this country from being engulfed in the rising tide of drug availability, which we know has swept, and is sweeping, through other countries. It is my firm belief the Senate has timed its action on the drug phenomenon just in time, if the national spirit is willing to save this and future generations from the ravages of drug misuse
I want here to record the Committee’s appreciation of the voluntary action of some 100 young people who came to talk with us but not necessarily to give evidence. Some were users of drugs, in various stages of or approaching dependency, while others were experimenters. We learned some of the basic causes which led them to turn to drugs. These included alcoholic and drug taking parents, broken homes, the problems and stresses of the society into which they have grown and, their own personality defects for which society - our system of living - has not provided the necessary help and motivation for them to overcome. Add to these the deficiencies of our school education system; they all play some part in causing the drug habit.
I pay a sincere tribute of thanks to my Committee colleagues, our staff and advisers. They have been worked hard; they have responded generously with dedication. Careful reading . of the report will indicate a theme or thread running through its fabric enlisting from all who take any part in the cause of careful and prescribed drug use, and the prevention of drug abuse, an attitude of help and compassion for those suffering the illness of drug dependency but a firm and unremitting fight against the careless prescriber, the trafficker and the infecters. What could be a grim picture faces us, but Australia is forewarned. With great sincerity, I believe our report provides helpful and practical answers to some of the problems posed. My colleagues and I have done our best. I hope Australia will . judge our effort as being worthwhile and worthy of the Senate from which our report has emanated.
I move: That the Senate take note of the report.
– First of all, I would like to thank the members of the Opposition and of the Australian Democratic Labor Party whom I believe have agreed that 1 should speak at this stage. There is a good reason for it in that I will not be here when the report is to be debated. It would be right at this stage that I should pay a personal tribute to Senator Marriott for the dedicated and impartial way in which he conducted this inquiry. I think we all realise that this was a controversial subject but he managed to weld together a team of people, despite our differences when we started, which produced what is almost a unaminous report. I respect my 2 colleagues who saw fit to make certain observations. I would remind the Senate that they are observations and not dissenting reports. As I have said it is a controversial subject and I think that Senator Marriott did a remark- able job in welding us together as a team. Before leaving that side of the matter I want to pay a personal tribute to Mr Arthur Higgins who in the last 15 months just lived with the task of producing a report of which the Senate would be proud.
– Lived on drugs?
– 1 take the interjection from my friend Senator Cavanagh but 1 would not want it to be taken the wrong way. Mr Higgins would never need drugs to do the sort of job he did. 1 found this a fascinating and absorbing inquiry because it dealt with people. They were troubled people; that is the point. As we went along we found that these people were at odds with society. They apparently could not fit, as I believe all of us ought to try to fit into what I say is the accepted way of life. We were dealing with people who just did not fit into it. They needed some help - a crutch - and their crutch was drugs. Those drugs varied from simple analgesics - for the benefit of people who do not know, an analgesic is simply an aspirin, Bex powder or APC taken to make one feel well - right through the whole gamut to heroin. This was the crutch they sought in order to fit into a society that they found difficulty in living with.
One witness who impressed me greatly said that there was no such thing as addictive drugs, only addictive people. I ask honourable senators to think of that statement again: There is no such thing as addictive drugs, there are only addictive people. That remark impressed me so much that from then on I pursued the line of asking witnesses whether they agreed with it. A number of men eminent in their professions did agree with it. I think the remark was exaggerated to make a point but nevertheless I believe that the pressures of our present day society do create addictive people. I am convinced that one of the factors causing this is the overcrowding in big cities. One of the biggest single causes of drug abuse is the fact that we tend to live in an affluent society where there is overcrowding, pressure and tension as a result of centralising people in big cities. This has been proved. Anybody who gets around to reading the transcript of evidence will find that the greatest incidence of drug abuse is in the big cities. We did not find much drug addiction in small country centres, but we found it in the bigger country centres. When you crowd people together, under the pressure of modern day living they will escape in some way and they escape to drugs in some form. The people who will be in the Senate when I leave it will have to look into what should be done about planning.
There is another factor. I do not know whether my fellow Committee members agree with me but I felt that some addiction was due to pressure by parents on their children to succeed academically. In the affluent 1970s in which we live there seems to be pressure by parents on their children to conform to the idea of. having their own home and a 2-car garage. A lot of young people revolt over this. They protest against our perhaps square belief that the thing we ought to be trying to achieve is financial security. Their form of revolt is pretty drastic. They say: ‘No, we do not want this. You may want it. You may like it. But we do not want it.’ They have a slap at Dad and Mum. They revolt and turn to drugs perhaps as an experiment. Fortunately in most cases we found that after these young people reached the age of 25 years because of responsibilities they may have accepted such as marriage or perhaps promotion in a job they gave away the more spectacular type of drugs. I believe and I say with deep sincerity to my colleagues, that the tragedy of affluence is that it breeds boredom. By far the greatest number of people who resort to drugs of some sort are people who are bored with their lot. The great majority of people who are resorting to drugs in some form are over the age of 35.
I believe - I speak from experience - that in times gone by when one was battling to make a crust and rear a family I never heard of drugs other than the legally accepted drugs, alcohol and tobacco. We were all far too busy trying, as I said, to rear a family and make a living. At the end of a hard day’s work we were probably all far too tired to be bored. Society has created this problem and society has to cure it. But society cannot do that in any other way because it is a people’s problem not a drug problem. I think that as legislators we have a direct responsibility in this matter. This is a serious problem and anybody who is going to read this report should look at page 85.
It contains 6 simple lines under the heading: Causes of Drug Abuse’. I shall read those 6 lines but I am going to emphasise 3 of them out. They state: lack of awareness of the dangers of drugs-
I am convinced that people are not aware of the dangers of drugs - the affluent society; the stresses of modern life; the personality factor; the living environment; and advertising and the news media.
The 3 aspects which one must look at in the future in an affluent society are (1) the stresses of modern life which I believe are a big factor as to why people try to escape; (2) boredom; and (3) the living environment. I believe they are the 3 real factors which cause drug abuse. If honourable senators look at the Committee’s recommendations I think they must turn to No. 8. It is a simple, short recommendation and it states:
I do not think I can stress that recommendation enough. I have already said that I subscribe to the fact that there are not addictive drugs but there are addictive people. What makes addictive people? I have canvassed that point enough. I want to pay personal thanks to Senator Cavanagh who was most conscientious in his attendance at meetings. Whenever I found myself with a problem of what I shall call conscience’, in respect to the inquiry, I discussed it with the Chairman first. I would then turn to my friend Jim Cavanagh and he would always suggest a realistic solution to the particular problem. He showed a capacity to ask himself how he would deal with the problem if he were confronted with it. I found that approach to be of great assistance and I publicly place on record that he greatly assisted me.
I personally hope that this report will not be placed in a pigeon-hole. I do not think it will, but even if that does happen, the Committee has achieved something by making people aware of the drug problem. I spent about 4 months in the United States of America and I would not like to have reared 4 sons to live in a community such as I saw there. The Committee has justified its appointment because people have become aware of the problem. Journalists who for a long time have been writing about drug abuse may have been given a little hope from our public meetings that the Australian people will be made aware of the extent of the problem. I do not think that the problem is out of hand at present, but it could get that way if we did not take steps to remedy the situation. I believe that members of this Parliament will be very grateful to Senator Marriott and his Committee for the wide coverage and examination of what has become a terribly important matter in Australia.
– I do not wish to take the time of the Senate now to discuss the report of the Committee but I would be remiss if I did not acknowledge Senator Branson’s appreciation of my membership of the Committee. I did not know that I was of assistance to Senator Branson on the Committee. Perhas I was able to take a more humane view of every day affairs and personalities because since I was born I have mixed with all sections of the community. When the report is discussed in detail Senator Branson will not be here. In his presence now I place on record that the Committee had no more loyal or conscientious member than Senator Branson. He was the only member of the Committee who did not miss a meeting. His questions were probing and I think his desire for information did him credit.
This is the second Senate select committee on which I have served with Senator Branson. Each of those committees seemed to avoid political differences that sometimes arise. The purpose of the Senate Select Committee on Drug Trafficking and Drug Abuse was to seek a solution to the drug problem in Australia. All the members of the Committee had a common aim and it was pursued in a spirit of co-operation and friendship that at times is lacking in the Parliament. I think that the Senate and the people of Australia owe a debt of gratitude to the work Senator Branson has done as a committee member over the years. This report and previous reports have been much richer because of his participation. Now that he is to retire I wish him well in the future. I regret that I will not be seeing him any more on committees. I ask for leave to continue my remarks at a later date.
Leave granted; debate adjourned.
– by leave - At the request of Senator Wheeldon, who is present in the chamber,I move:
That Senator Wheeldon be discharged from the Privileges Committee and Senator O’Byrne be appointed in his place.
Question resolved in the affirmative.
Bill receivedfrom the House of Representatives.
Standing Orders suspended.
Bill (on motionby Senator Sir Kenneth Anderson) read afirst time.
(11.17) - I move:
That the Bill bc bow lead a second time.
The main purpose of the Bill is to amend the Loan (Farmers* Debt Adjustment) Act 1935-1950 to enable funds available to the States arising from that Act to be used for the same purpose as the funds to be provided by the Commonwealth under the Slates Grants (Rural Reconstruction) Bill. The Loan (Farmers’ Debt Adjustment) Act 1935 authorised the making of grants to the States for the purpose of discharging in whole or in part, the debts of farmers by means of compositions or schemes of arrangement between farmers and their creditors. The States were empowered to use the funds to make either grants or loans to farmers. One condition laid down in the Act was that repayments to the States by farmers were to be used for the same purposes as the initial Commonwealth grants, so that such repayments constituted a revolving fund for the purposes specified in the Act. At 30th June 1970 the States had cash balances totalling $7. 6m, and loans outstanding to farmers totalling $4.6m, arising from the operation of the Act.
During the recent discussions with the States on the rural reconstruction scheme, it was agreed that the States would use the balances available to them under the Act for the purposes of the new scheme, which are wider than those laid down in the Act. The Bill will enable the States to proceed accordingly. It provides that repayments to the States by farmers of loans made from these balances for the purposes of the new scheme may be used again for the same purposes. A further provision in the Bill is intended to fulfil the undertaking given to the Tasmanian Government, arising out of the 1968 drought in Tasmania, that the Commonwealth would take action to enable the State to use the funds available to it under the Act for the relief of farmers affected by that drought. Finally, as a consequence of recent bankruptcy legislation, the Bill provides for the repeal of section 9 and an amendment of section 10 of the Act.
I should also like to take this opportunity of announcing that, as a further means of facilitating desirable structural adjustment in rural industries, the Board of the Commonwealth Banking Corporation has agreed to widen the lending activities of the Commonwealth Development Bank. At the present time, the Bank does not normally approve loan applications for property purchases not involving substantial developmental features. It has now been decided that the Bank will consider loan applications for the purpose of assisting farmers to acquire additional land to build up the size and operational efficiency of their farms. Those eligible for assistance will be working farmers whose properties may be too small to constitute an enterprise viable in the long run, or farmers who by acquiring additional land will assist the adjustment process through enabling uneconomic farms to be purchased. Loan applications will normally be considered only from persons whose main source of income will be the farming enterprise concerned.
The terms and conditions attaching to such loans will be the same as those currently applied by the Development Bank. In particular:
To increase the capacity of the Development Bank to operate in this new field of lending, the Government has decided to provide in the 1971-72 Budget an amount of $10m by way of an advance to the Development Bank. The advance will carry a concessional interest rate of 4 per cent in order to allow the Development Bank a margin to cover the costs of making and administering such loans. I commend the Bill to honourable senators.
Debate (on motion by Senator Wilkinson) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator DrakeBrockman) read a first time.
– I move:
That the Bill be now read a second time.
This is a short Bill of only 4 clauses. Its purpose is to provide parliamentary approval for the execution on behalf of the Commonwealth of an agreement between the Commonwealth and the States for a rural reconstruction scheme and to appropriate funds for grants to the States for carrying out the scheme. The details of the scheme are set out in the agreement which is contained in a schedule to the Bill and in a schedule to the agreement. The agreement provides for the expenditure of $100m over 4 years. This scheme is one of a series of measures designed to help meet a crisis situation in the rural industries and particularly the sheep and sheep-wheat industries. However, no agricultural industry is excluded from the scheme except for farm build up cases eligible under the marginal dairy farms reconstruction scheme. It is recognised that in respect of farm build up the particular circumstances of some industries such as the horticultural industries may need additional consideration of their special problems. These will be looked at separately.
At the present time the price of wool is averaging about 30c per pound greasy. This is the lowest level wool prices have reached for 23 years. Receipts by the wool industry fell by nearly$100m between 1968-69 and 1969-70, giving rise to the necessity for the emergency financial assistance scheme for wool growers introduced late in 1970. This was intended as a short term measure which it was recognised would help only a proportion of the cases of financial hardship caused by the fall in prices. Returns for 1970-71 could be down a further $170m. They would have been lower still if it had not been for the operation of the Wool Commission. A Bureau of Agricultural Economics survey in 1966- 67- a reasonably good year for the wool industry - indicated that some 20 per cent’ of wool growers in Australia had net farm incomes of less than $2,000 per annum to cover servicing of their debts and living expenses. Today that percentage has doubled. The decline in actual receipts by the industry over the last 2 years is the major element of the economic problem of the industry. A further important fact has been the decline in expectations about the industry’s future profitability. The immediate capital loss that this has involved in revaluation of wool producing assets, including sheep, could well amount to over $2,000m. In this situation the servicing of existing debt and the raising of new credit for continued operation have for a substantial part of the industry become problems of considerable gravity.
The industry’s outstanding debt has increased from $980m in 1966-67 to about $ 1,200m today. Net income calculations for the wool industry can only be approximate but with the fall in wool prices, drought in some areas, and a decline in wheat incomes not offset by improved beef returns, the industry’s net farm income in total has probably fallen from some $760m in 1966-67 to about $450m in 1969-70 and to $290m in the current year. The debt position has moved in consequence from one where debt represented something like 11/3 times net farm income in the industry in 1966-67 to 2i times in 1969-70 and about 4 times in 1970-71. In the current year about one-third of the industry’s average net farm income of some $3,000 per property is required simply to meet interest payments on existing debt.
With the combination of a substantial loss of income in each of 2 successive years, a substantial decline in capital values, and .little expectation that with likely price and cost trends profitability will recover to earlier levels, the industry is in a critical position and a particularly critical situation in the immediate short term. I am talking, Mr Acting Deputy President, about Australia’s largest rural export industry, lt is an industry on which this country has depended very greatly for foreign exchange. The export of wool will earn in the current year almost S600m. Even though this is some $400m less than in 1963-64, the peak year since 1950-51, wool remains the single largest export commodity and accounts for about 15 per cent of the total export income. Australia may no longer wholly ride on the sheep’s back, but the wool industry continues to be of major importance to our economy.
It is also of major social importance to the Australian community. There are some 89,000 wool growers running flocks of 200 sheep or more. It is a major contributor to the well-being and way of life of the majority of our country districts. Whole communities depend on it. We cannot contemplate a situation in which the forces against which we bave been working but which seem to encourage a continual movement of people from country areas to the already overcrowded cities are accelerated by a mass exodus of wool growers because their properties have become unprofitable and they have reached the end of their credit resources. This has arisen in part because of drought; in part because of rising costs; in part because of a disatrous and unexpected fall in wool prices; and in part because of loss of confidence in the industry by some lenders.
There seems no escape from the unpalatable fact that there will have to be a substantial restructuring of our rural industries. There is reason for hope that wool prices will recover from the present drastically low levels. It would be unwise to assume that the extent of the recovery will be sufficient to permit the servicing of all debts contracted when property values and investment in property improvement reflected the profitability which did exist in the industry before the effects of the cost price squeeze began to produce the difficulties which are only too apparent today.
The wool industry is a very large industry. The solution to its problems put forward by some people is the apparently easy way of providing price support. In round terms each lc per pound in price support would cost the taxpayer $20m per annum. There are some producers whose costs and debt structure is such that they would need price support in excess of 20c per pound above present price levels in order to meet their commitments. The burden on the Budget of a price support scheme of the magnitude required would be enormous. Apart from this it is essential for the health of the industry that it should not be fully insulated from the effects of changes in demand as reflected in price. The approach that has been adopted after an expert examination by the Bureau of Agricultural Economics and after extensive discussions between the Commonwealth and State Minister most directly concerned is represented by the agreement set out in this Bill.
The rural reconstruction scheme provides for assistance by way of debt reconstruction, farm build-up, and rehabilitation of those obliged to leave the industry where this is necessary to alleviate conditions of personal hardship. A complementary scheme to provide retaining assistance to farmers obligated to leave the industry is being formulated by the Department of Labour and National Service and the Department of Primary Industry in consultation with State authorities. Details of this scheme will be announced as soon as practicable.
To obtain debt reconstruction assistance an applicant must be unable to obtain finance to carry on and thus be in danger of losing his property or other assets if he is not provided with assistance. Debt reconstruction assistance may involve a rearrangement or a composition of debts to allow more time for payment. The authority may advance money for repayment of a proportion of the debts and for carry on expenses, livestock and further property development. Such advances may be for up to 20 years and the authority is required to ensure that the interest rate on
Commonwealth money advanced under the scheme will average 4 per cent per annum.
The farm build-up provisions are intended to encourage amalgamation of properties which are too small to be economic under today’s conditions. Finance may be provided either to the owner of an uneconomic property to buy adjoining land to build up his property or to an adjoining owner to enable him to purchase an uneconomic farm. Grants may be made at the discretion of the authority to cover, in whole or in part, losses sustained in the disposal of assets included in the purchase price of the property which are not useful for the built-up property. Advances may be made for carry on expenses, plant, livestock and property development in respect of the additional land where finance is not available from other sources. The interest rate for farm build-up advances on Commonwealth money is 6i per cent per annum.
In considering interest rates it is as well to keep in mind that the aim of. the scheme is. to assist people who have prospects of becoming commercially viable. There must be an expectation that the farmer will in due course be able to service credit provided to him. on normal commercial terms. It is not realistic to admit to the scheme cases which require the bridging of too large a gap between the terms provided under the scheme and normal commercial terms. In order to ensure that the scheme has the widest possible effect in encouraging sound permanent restructuring of the industry, the general objective is that half of the funds will be applied to farm build-up. This will supplement funds available for farm build-up from other sources. In this connection I am pleased that the Government has arranged with the Development Bank to extend its operations to include lending for property purchase for build-up purposes and advances will be made by the Government to the Bank for this purpose.
Mr Acting Deputy President, such is the condition of the rural industries at present that there are many cases where producers are in financial difficulty and will not be able to satisfy the requirement that they have prospects of commercial viability. It is the natural wish of many people to continue in a way of life which they know and like and may have followed for many years. But while recognising the contribution these producers make in earning export income the Government must attempt to balance the real cost of resources used in gaining those earnings in devising measures of assistance to export industries. Carry on finance may alleviate immediate financial pressure for a limited period but if the result is a lot of additional hard work and worry and a still larger debt around the producer’s neck, it may not be worthwhile.. This is not a policy of ‘get big or get out’; It is not a policy Of forcing people off the land. It is a policy of concentrating the assistance that is available on those cases which have the best hope of weathering, the present adverse, circumstances and recovering to a sound financial position in the longer term.
In the application of the funds that are available the aim is to help producers. The aim is not to displace private credit and it is not- to relieve creditors of the consequences of commercial judgments which they have made. The Government is conscious that the present times are difficult, not only for producers but also for institutional and other lenders. It asks that creditors will be forebearing and co-operate with the reconstruction, authorities and the producers in a combined effort to retain in the industry as many producers as can possibly be placed on a sound basis and to avoid precipitate or disruptive action in the difficult times which the rural industries are facing. For those who are obliged to leave the land because they do not qualify for rural reconstruction and who need retraining, this will be available under the scheme to which I have referred. For those who are obliged to leave and who face financial hardship, modest assistance for rehabilitation in the form of an advance of up to $1,000 may be provided by the reconstruction authority.
The course of wool prices in the future is of course uncertain. There are, however, grounds for believing that present price levels are unduly low and that there will be some recovery in the coming months. There is the case of the producer falling in between on the one hand those who on the present market outlook for wool do not need assistance or would be eligible to receive assistance under the debt reconstruction or farm build-up provisions of the scheme, and on the other hand those who, even with a significant improvement in wool prices, are beyond prospects of recovery because their costs are too high or their debts too large. These are people who, if their cases are judged on the present market outlook, would have to leave the industry. If wool prices, subsequently recover they may have left unnecessarily - they may have been able to return to profitability, if they had. been assisted to remain. With this in mind, the States have suggested that perhaps this . proposed reconstruction scheme needs to be supplemented in some way, or even radically, reviewed to accommodate- these cases. However, the States have accepted that at least this scheme should be implemented in its present form in order . that . this new. financial assistance may be provided immediately and without delay. Future needs can then be assessed in the light of experience and the further knowledge gained.
As I have said, this rural reconstruction scheme - has bees formulated in consultation with the State Governments. The’ problems with which it seeks to deal are regarded as the joint responsibility of the Commonwealth and the States. The Commonwealth will provide funds to the States to carry out the scheme. The States have agreed to administer the scheme and bear their own administration costs. The Commonwealth offered the States the sum of $l00m over 4 years for the scheme as a loan at an interest rate of 3 per cent per annum. At the request of the States an alternative offer was made and this was that $75m should be provided as a loan bearing interest at 6 per cent per annum with the remaining $25m being a nonrepayable grant.
There is a margin between the amounts the States would receive if they lent half of the money for debt reconstruction assistance at 4 per cent per annum and the other half for farm build-up at 6£ per cent per annum and the amount the States will be obliged to repay the Commonwealth. The margin is intended to cover normal losses in lending under the scheme and write-offs under the farm build-up provisions. If the States incur losses from circumstances beyond their control the agreement provides that the Commonwealth will review the position with a view to adjusting the States’ repayment obligations to the extent of such losses. Importantly the agreement provides for the operation of the scheme to be reviewed from time to time and for the review to include the funds to be provided for the scheme, the allocation of the funds between the States, the provisions for losses and writeoffs, the interest rates to be charged to borrowers,’ and the proportion of financial assistance’, applied to farm build-up.
There will be regular exchanges ofinformation between the States and the Commonwealth on the operation and effectiveness of the scheme. Perhaps there are. sortie who will criticise the provision of special assistance to the rural industries oil the grounds that comparable assistance is not provided to other industries outside the primary sector. If so, let me say that it’ is an undeniable fact that wool growers have provided over many decades benefits to the country as the mainstay of export income without any form of price support or stabilisation plan. There will no doubt be a majority who will feel that wool growers should now, when costs and prices have turned against them, be assisted purpose-, fully to meet the difficulties which face them.
The Government has had to make its own judgment, after consultation with the States, on what is feasible having regard to the many other demands made upon its resources and having regard to the unavoidable necessity for adjustments in the industry to meet the changes in its circumstances that have occurred. I believe that the measures provided for in this Bill are sound in their conception and practical in their application. I trust that the Senate will take note of the very difficult financial problems which face rural industry and in particular the wool industry at the present time and will support assistance to these industries as provided for in the Bill.
Debate (on motion by Senator Wilkinson) adjourned.
Consideration resumed from 5th May (vide page 1447).
Clause 8. (l.)…
– When the debate on this clause was adjourned last night I had practically completed the submissions that I wished to make on what we on this side of the chamber regard as the objectionable features of this clause. I had drawn attention to our objections to the subjective test of ‘reasonable apprehension’. Also I had referred to the dangers inherent in allowing a person to act as a law enforcement officer, with all the risks that we believe exist in this formulation, which in our submission amounts in some circumstances to an invitation to riot. I instanced the case of competing groups of people at an assembly at which tempers became inflamed, in which case one group might take it upon itself, in the light of this provision, to act as a law enforcement agency, and a riot could result.
The only other point to which I wish to advert in relation to clause 8 is in connection with sub-section (3.) in which the penalty for an offence under this clause is spelt out. The relevant words are: each of those persons who has, without reasonable excuse, failed to comply with the direction -
That is a direction given by a sergeant of police, when certain other circumstances have been satisfied - is guilty of an offence, punishable on conviction by a fine not exceeding Five hundred dollars or imprisonment for a term not exceeding six months, or both.
We regard this provision as such a serious curtailment of the liberty of the subject that we believe that if there is to be such an offence it should be an indictable offence because, in our view, the safeguard of a jury trial is required in these circumstances. Therefore I move:
In sub-clause (3.) (b) after ‘an’ insert ‘indictable’.
– Two substantial points were raised by Senator James McClelland. The first point related to the expression which is used in sub-clauses (3.) and (4.) of clause 8 of the Bill. Apparently he takes objection to the fact that it would be lawful for a person to use such force as he believes, on reasonable grounds, to be necesary and is reasonably proportioned to the danger which he believes, on reasonable grounds, is to be apprehended from the continuance of the assembly in respect of which a dispersal order has been given in accordance with the earlier provisions of the clause. The Government believes that this provision is a desirable one in the light of what has always been the common law provision and the fact that, under clause 25 of the Bill in effect the Common law provision is abolished. In short, the clause does not introduce anything which is new. It has always been the responsibility of the citizen to assist in dispersing a riot or an unlawful assembly and it is desirable that that position should be as always it has been. In fact, it is an offence for a person to refuse to assist to suppress a riot. This point was emphasised last night by Senator Rae.
– Is it not the position that a person can use force even though he is not called upon by the police or anyone in authority?
– I think that would be a fair statement to make. Nevertheless, there is the precaution, as I would see it, that, if the action taken by this person is subsequently challenged, he knows that he can only justify whatever action he takes only if he can establish that what he did was not only done on reasonable grounds but also that it was a fact reasonably proportioned to the danger which he believed, again on reasonable grounds, to be apprehended from the continuance of the asembly.
– It is a very dangerous provision in that he could do this even though there was. no request. It appears that he might be able to do it if the police said: ‘We do not need your help’.
– I know the impact of what Senator Murphy has said and the way in which the argument can be developed, but I think we must recognise the sort of situation in which the need may arise. If there is an assembly which appears, on reasonable grounds, to be likely to engage in violence and damage to property - to go on the rampage - and a senior policeman says that this assembly should be dispersed and acts in accordance with the clause, I believe that it ought to be the obligation of those citizens who are willing and able to do so to render assistance to preserve the order which is so important. To deny to the individual, for fear that he might suffer some consequences, the right to assist the police when the police want assistance is not the sort of situation which we should consciously put into our law.
– What about if they are policing a bad law or an unacceptable law?
– I do not want to move into the area which Senator Cavanagh invites me to move into. It has been an area of discussion in this country for a while. I regret that it has ever arisen because when the concept of a bad law is introduced - for example, a very prominent member of the Australian Labor Party has said that the citizen has the right to determine in a sense what laws are objectionable and he does not have to obey an objectionable law - it is the beginning of the end of any form of law in a society.
– What about if thousands of people will not obey those laws?
– If I may, Mr Temporary Chairman, I will revert to the issue which is before the Senate, which is the question of whether the povisions contained in sub-clauses (4.) and (5.) of clause 8 are desirabe. The Queensland and Western Australian criminal codes that superseded the common law in those States have similar provisions to those contained here. Sub-clause (4.) has been inserted because clause 25 abolishes the common law and it is believed to be necessary to preserve a provision comparable to the common law provision. But we have circumscribed it. I think that it is reasonably necessary to retain this provision in the circumscribed form in which we have cast it for use in the extreme case where the assistance of citizens is needed. Society must have the means to protect itself from the damage and the violence of rioters. I know that much of this discussion is centred upon the fact that these assemblies will be assemblies of demonstrators for some political purposes. I accept that that is one area which this legislation covers. But it should not be forgotten that this is the basic type of legislation which enables police to restrain riots. If, arising out of an assembly that has no political function or purposes whatever, a situation dangerous to the public peace occurs, I think it is incumbent upon people who have the protection which his law gives them to come to the assistance of the police, to take action to quell the disturbance and not be subject to accusations and allegations simply for taking action designed to preserve order and peace. The provision authorises action to be taken only when the action is reasonable conduct. That, of course, may be tested against the standards of the ordinary man and that, as I have said already, is the standard which the court applies. I hope that answers the first point raised by Senator James McClelland. That is my reaction to what he said.
The second point which Senator James McClelland raised was in the form of an amendment to sub-clause (3.) of clause 8 to allow to be regarded as an indictable offence an offence which, at the present time, is capable of being tried summarily. In short, what is being sought is for anybody charged with this offence to be tried by a judge and jury instead of being charged before a magistrate or in a lower court. There is always a problem as to what is the appropriate court in which offences should be tried. Various considerations determine that issue. One issue is the character of the matter which is in dispute. If the issue is one which is a fairly clear cut issue as to whether one discernible fact was or was not committed one might suppose that there is no need to put that before a jury, which is a body designed to make an assessment on common ground standards of what is or is not the appropriate decision. On the other hand, it has always been accepted that the nature of the penalty to which a person is to be subjected is also a relevant criterion in determining whether a person should have a jury trial. In this particular case the offence is an offence punishable on conviction by a fine not exceeding $500 or imprisonment for a term not exceeding 6 months or both. In the light of the experience of statutes in this Parliament and in other parliaments of the Commonwealth that isnot the type of penalty which normally attracts a jury trial. The Government opposes the amendment.
That the word proposed to be inserted (Senator James McClelland’s amendment) be inserted.
The Committee divided.
Ayes … … … 23
Noes . . . . . 26
Majority . . 3
Question resolved in the negative.
– Now that the Committee has taken that vote, it is apparent that clause 8 is going to be administered in the context where the citizen who comes under the scope of the provision will not be able to appeal to the commonsense, the wisdom and reasonable standards of his fellows in a jury trial. If the Committee had agreed that this should be an indictable offence it would have mitigated any possible abuses of this clause because the police sergeant or the authorities would know that the way in which this clause was being used would be subject to the scrutiny of a jury drawn from the citizenry. As has been shown over hundreds of years in England, the jury system has brough about the respect for law which we all want, because the jury has always been there to say: ‘If there are bad laws we will not convict’. That is the answer to a lot of the questions that have been raised during the course of this debate and elsewhere in the community. That is how it works.
We know that juries in England and here have never accepted the proposition that they were bound by the law as stated to them by the judiciary. That they are bound is in the law books but it is not the standard that prevails under the Anglo Saxon system because that is where the people in the community are involved in the administration of justice. Bringing a sample of the citizens into the court room to see whether in the ultimate they will apply the criminal laws has meant that there has been a means whereby bad criminal laws are in fact not executed in this community. That is why many laws on the statute book are a dead letter. That is why laws which provided that it was a capital offence to steal goods to the value of 40s could not be enforced in England. That is why juries over a long period consistently refused to find men quilty of it and eventually, with the approbation of the judiciary and the whole community, they point blank refused to enforce the law because it was a bad law.
If there was a jury trial in relation to this clause it would mean that there could not be abuse of this provision. Neither the authorities at the top nor the members of the police force who would be administering this provision could let their heads go and start to prevent reasonable assemblies, peaceable assemblies and proper protests in expressions of dissent in this community. But now that that safeguard does not exist, look what we have. We have a right of peaceable assembly subjected to a provision where not a magistrate, as is the case under the ancient Riot Act, but a member of the police force is able to make a statement that he reasonably apprehends that there is going to be some kind of violence or damage, and then the right of assembly is gone. There was sense in having a magistrate because the magistrate was one who was supposed to be somewhere between the authorities and the citizens. He may not always have been but he was not under the direct control of the authorities as is the police sergeant. So the balance has again been shifted there. The right .of peaceable assembly is put at the discretion
– At the whim.
– Or, as Senator Douglas McClelland says, almost at the whim of a person who is under the direct control of the Government. A member of a disciplined force, the police sergeant, does not. have an independent right. He is a member of a disciplined force and must do what he is told. The rights of the. citizen which have been taken away and put in the hands of a magistrate under the Riot Act now depend on the discretion of a member of the police force. We do not think that that is a proper balance in this community. We do not think it is proper that once the dispersal order has been given any person can use force. Senator Greenwood, the Minister representing the Attorney-General (Mr N. H. Bowen), has conceded that any person can do it with-: out any request, even by the police. The Nazis who like to go along to demonstrations and oppose them and try to provoke some kind of a disturbance will immediately be able to go in under clause 4 - honourable senators can imagine some of the thugs who go along to break up peaceful assemblies - and start to use such force as they believe, on reasonable grounds, to be necessary for the purpose of breaking up the assembly in reasonable proportion to the danger which they believe, on reasonable grounds, to be apprehended from the continuance of the assembly. Should the rights of citizens be dependent upon the belief of such persons? There is no provision even that there must be a request from the police either to that person or a general request at the time that the direction is given by the police sergeant about the dispersal of the assembly. One would think that if one was try ing to draw up a reasonable provision, at least one would put in it something about the police sergeant calling upon anybody to assist. Notwithstanding that there may be plenty of police there to handle any situation they think might develop, those thugs will be entitled under clause 4 of this Bill to move in. I do not think that was a wise provision to include even with the philosophy that the Government has adopted in approaching these matters. I think it is a most unwise provision. It is an open invitation to thugs to go along and start interfering with assemblies. There are peaceful assemblies. We know, and the Government concedes, that there is a right of people to assembly peaceably in the community and to use public places for the purposes of dissent and protest. This is a right. What is the Government doing to that right by this clause? It is. making nothing of that right. This is one of the worst clauses in the Bill and the Opposition will vote against it.
– Once again we have heard from Senator Murphy a catalogue of inaccuracies and misrepresentations which an examination pf the record does not sustain. Before one embarks on that, however, . I . think one should take note of the way in which Senator Murphy, has developed his attack on this clause. As I understand, apart from indicating that we should vote on the amendment which has just been decided, he had not previously spoken to this clause, and when he rose on this occasion he instanced as one of the dreadful things to be said against this clause that the citizen will not have a right to go to a jury. One would suppose that if he felt that strongly there would have been something said in support of the amendment which his Party moved, because all that Senator James McClelland said when he moved the amendment was that the word ‘indictable’ should be put in before the word ‘offence’. There was no elaboration of the merits of jury trial by Senator James McClelland. There was no elaboration of the merits of jury trial by Senator Murphy. There was no elaboration by any member of the Opposition of any argument in favour of what is now said to be such a desirable thing in this area.
I know why there was no elaboration of the need for a jury trial in this area. The reason lies in the fact that the penalty, being $300 or 6 months imprisonment, is one which does not attract jury trial. The records of the Senate are replete with references made - by senators on the other side of the House to that fact. I think it is incumbent upon them, therefore, if they are to urge the need for a jury trial or to take advantage of the fact that this is not an offence where a jury is required to elaborate why there should be a. jury trial for this type of offence when they have previously indicated that for an offence with this type of penalty no jury trial is customary or required.
– You say that the records of the Senate are replete with such statements by members of the Opposition. Are you able to produce one to us where we have ever said that a jury trial is not necessary?
– It is there. If Senator Wheeldon casts his mind back not only to the records of the Senate debates but also to his own participation in them, he will . remember - not that I suggest I have in front of me something which was said by Senator Wheeldon - that certainly Senator Murphy as Leader of the Opposition had expressed this view when he spoke on the Wireless Telegraphy Bill. In the course of that debate he said:
Senator Anderson referred to many instances in which matters can be dealt with summarily before magistrates. We are not questioning that. There are many trivia) matters in respect of which it is said that there shall be only a summary trial before a magistrate. In all sorts of trifling matters a magistrate may impose a term of imprisonment of 1 month, 3 months or 6 months. But those are small or trivial matters.
– Do you call this a trivial matter?
– All I am saying is that if one takes the criterion of the penalty which is imposed it is less than what the Opposition on other occasions has regarded as a trivial matter.
– What would it matter if it were 1 month?
– All I say is that if members of the Opposition were concerned to assert the need for a jury trial in these matters one would have expected that on the amendment which they moved they would have adduced at least one argument in favour of it. But they chose not to and at the request of Senator Murphy, as soon as the motion had been moved and I had spoken against it, the question was put. If he now comes along and laments the absence of a jury trial it is only because he wants to use it in a particular way when, on the occasion when the actual amendment was before the Senate, he chose not to address any argument to try to pursuade the Senate on that very fact. Now we come to the other point which was raised by Senator Murphy. It is a plain misrepresentation to suggest that in any way there is a denial of the right of peaceable assembly by this provision.
Clause 8 provides that an order may ba given by a sergeant of police or a person of higher rank in the police force requiring an assembly to disperse, but if one looks at clause 8 (1.) one finds the circumstances in which that order can be given. In the first place, there must be an assembly of not less than 12 persons, and secondly, the persons taking part in the assembly must have conducted themselves in a way that has caused this senior member of the police force reasonably to apprehend that the assembly will be carried on in a manner involving unlawful physical violence to persons or unlawful damage to property or, in fact, if the assembly is being carried on in a manner involving such unlawful violence or damage. Do we understand the Opposition to say that if a riot is taking place or if there is a crowd of 12 persons or more who are bent on damaging prop;erty and are, in fact, damaging property and are, in fact, violently assaulting citizens, they should not be required to disperse?
– Where does it say that in the clause?
– Senator Murphy can interject as vigorously as he pleases, but he knows as well as I do that this clause gives power to a police sergeant or any person in the police force of higher rank to order a group in excess of 12 people who are doing that to disperse, and yet he is opposing that very provision. I will wait with interest to hear how members of the Opposition dispute what I have said. It also gives power to a police sergeant.
– Or a member of the Nazi Party.
– Or a member of the Labor Parry.
– In the light of the interjections 1 will read clause 8 (1.). It states:
Where there is an assembly consisting of not less than twelve persons in a Territory and -
The clause gives to a member of the police force of the rank of sergeant or above the right to make the direction.
– But you could not relate that to clause 8 (4.) which gives the power to use force.
– After the order has been given. There is no justification
– Whether or not a direction has been given. Clause 8 (4.) (b) uses the words ‘whether or not a direction has been given’.
– Sub-clause (4.) states:
For the purpose of -
I appreciate the point made by Senator Wheeldon. However, if one examines the clause in full it gives a power to a person to take such force as is reasonably necessary to prevent a riot from damaging property. As I understand it, though the cir cumstances in which a person other than a policeman would take this action would be such that he would have to be very careful as to what he did, he could do it in the circumstances I mentioned and he should be prepared to do it in those circumstances. As I see it, this provision derives from the Riot Act. In fact it is a repeal of the Riot Act which currently is the law in the Australian Capital Territory. If one looks at the Riot Act which is the existing law - I imagine it is the law which the Oppostion would be seeking to retain in force if it repealed this provision - one finds these words in section 1 of 1 George I, chapter 5, 1714:
If any persons to the number of twelve or more, being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the public peace, at any time afterthe last day of July in the year of our Lord one thousand seven hundred and fifteen, and being required or commanded by any one or more justice or justices of the peace, or by the sheriff of thecounty, or his under-sheriff, or by the mayor, bailiff or bailiffs, or other head-officer, or justice of the peace of any city or town corporate, where- such assembly shall be, by. proclamation to be made in the King’s name, in the form hereinafter directed, to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, shall, to the number of twelve or more (notwithstanding such proclamation made) unlawfully, riotously and tumultuously remain or continue together by the space of one hour after such command or request made by proclamation, . . . shall be adjudged felony. …
Of course, it always is the obligation of any citizen to assist in putting down felony. That is precisely the provision we are dealing with at present except that it is limited in respects in which the Riot Act is not limited. I have sensed that there is a degree of dispute within the Committee about matters which I have stated. I have indicated quite clearly that if points are raised on a basis that one can argue reasonably, I am quite prepared to respond. That offer which I made before applies equally in discussion on this clause.
– The Minister for Health (Senator Greenwood) has complained, as I understand it, that we of the Opposition did not speak long enough about the amendment moved by Senator James McClelland. I thought we were trying to get through this Bill reasonably expeditiously. That was the request made to us and we have been trying to do that in a convenient manner. It seemed to me to be convenient to dispose of that amendment so that we would know one way or the other - we had a pretty fair idea of what would happen to it - what the final shape of the clause would be. Then we could discuss the clause in its context. Once the amendment was disposed of we were able to do that and discuss the clause on the basis that the word ‘indictable’ was not. to be included. That is the basis upon which I put the matter. It does not become the Minister to complain of the way is which the arguments were being put, especially if they were put briefly, by the Opposition. ;
Every honourable senator in this place may have cause to remember, if the Government in the next few days tries to gag business bete, that in respect of this major matter the Minister complained that we were not putting our arguments fully enough i» respect of the clause. He complained in particular’ that I did not rise to address arguments at large in respect of the amendment moved. I have never heard so much nonsense expressed in this place. Let the Minister attend to his own affairs in defending this matter and we will attend to the way in which we on this side put our arguments- and the order in which we put them.
– 1 am concerned only with accuracy in the statement about what is alleged to be the consequences of this Bill.
– The Minister is not dealing with the clause in the way in which it should be considered. The Minister keeps saying that if a riot and a tumult were going on this clause could be used to prevent them. I have no doubt that it could. We on this side have not said that there ought not to be laws against great tumults and riots, or that if there were a danger of persons being killed or injured, or serious damage being done to property, there should not be provisions to deal with that situation. We are not suggesting that. lt is idle for (he Minister to say that this clause could be used against such great occasions of civil commotion and riot. What we are concerned about is the fact that it can be used on occasions other than that and it can be used unduly to circumscribe the right of peaceful assembly and freedom of speech. It has been drawn deliberately in such a way that it can be used to prevent peaceful occasions. There is no suggestion in the Bill that this clause is to be used on occasions of tumult and riot. Those words do not appear in the clause. If they did there would be more to be said for the Government’s point of view. It is to be used where a member of the police force reasonably apprehends, in relation to a gathering of 12 people, that the assembly will be carried on, not that it is being carried on. But in what way does he apprehend that it will be carried on? Not in a tumultuous and riotous fashion, but in a manner involving -unlawful physical violence to persons or unlawful damage to property. That can mean in the minimum degree. Because of the way in which these matters are interpreted - ‘persons’ can; mean the singular. It could be any kind of. unlawful physical violence to one person or some minimal damage to property. The Committee will recall the words the Minister read from the Riot Act about tumult and riot, and the other expressions used by him which are redolent of some great civil commotion. They are deliberately out of; this. The words used in clause 8(l.)(b) are:
The assembly is being carried on in a manner involving such unlawful violence or damage.
Under paragraph (b) let alone paragraph (a) it will be easy to stop any demon: stratton. It might be a demonstration in which 50,000 people want to go peaceably through the streets of Sydney. It only wants some agent provocateur to put a brick through a window and the police sergeant can say: ‘Not only do I apprehend that the assembly will be carried on in a manner involving unlawful damage but, under paragraph (b) it actually has been carried on.’ One brick through a window satisfies this part of the section. From then on the whole assembly can be dispersed. No attempt will be made to say that this is a situation of tumult, riot or some really serious matter. The expressions used are the minimal ones. When the Minister for Health was speaking, Senator Wheeldon interjected that the Minister did not understand the operation of clause 8 (4). It does not depend upon a direction being given. Even without a direction being given - I think the Minister will now concede this point - a person, meaning or including one of those thugs about whom we spoke earlier, could use such force as he believes on reasonable ground to be necessary to disperse or suppress an assembly and is reasonably proportioned to the danger which he believes, on reasonable grounds, is to be apprehended from the continuance of the assembly.
– That is only where actual violence or actual damage is occurring, and only in that circumstance.
– That is correct, but we know the situation does not have to be one of tumult or riot. As I have said it can be a situation where somebody puts a brick through a window. At a large and peaceful assembly if a brick is put through a window by some agent provocateur those thugs can move in and say: ‘We are satisfied that this assembly is being carried on in a manner involving unlawful violence and damage,’ and they will move in under subclause (4). One knows what will occur then. It is an open invitation for thugs to move in on the peaceful assemblies which we have seen in the capital cities on recent occasions. I do not think this is a fair clause. It is not a reasonable clause. I do not think it has been written in such a way that it will do what the Government has said it intended to do. If the Government wants to stop real damage occurring during some great civil commotion, tumult or riot and stop the development of something which we would say was dangerous to the community - there need to be laws to prevent occasions of great riot or tumult - why does it not write a clause saying that where this kind of thing happens action could be taken? But the Government has written this clause in this subtle and clever way to enable the authorities to prevent peaceful assemblies and to encourage thugs to break them up.
It is difficult to believe that the Leader of the Opposition (Senator Murphy) is serious in what he says. If there were any complaint that a clause was unnecessary in the Australian Labor Party’s opposition to this Bill, it might be argued that a case could be made out for this subclause. I concede that a case could possibly be made which applies to sub-clause (4) because it. is probable that existing laws would enable any person to take such action as this clause is legally emboldening him to take. When Senator Murphy was serious last night I went along with him but I cannot follow this sort of argument at all. He rather gives the impression that the community is composed entirely of agents provocateur who go around heaving bricks through windows. That is so far fetched and unreal as to be difficult to understand. But the Opposition wilfully - I draw attention to the word wilfully’ - refuses to observe the distinction between sub-clause (4) (a) and sub-clause (4) (b). In one case we are dealing with a reasonable apprehension. Something has not yet happened. A direction must be given before those powers in the rest of the clause are. conferred. In the case of sub-clause (4) (b) we are dealing with the situation where violence has actually broken out. If I can become as imaginative as Senator Murphy-maybe heads are being broken, people hurled into the streets and enormous damage being done to property. Presumably Senator Murphy wants us to stand idly by, wait and until the catastrophe is over and bring civil proceedings.
– That is the opposite to what Senator Murphy said
– I am afraid that is not so. The distinction should be obvious to anyone who is prepared to apply his mind to the difference between something which is about or may be going to happen and something which is in fact happening. For obvious reasons in the second case it would be nonsense to wait for a direction of the same sort to be given as is mentioned in sub-clause (4) (a.).
– So far, I have deliberately refrained from entering this debate either on the motion for the second reading or during the Committee stage. At this stage I enter into the debate because of the remarks which were made earlier by the Minister for Health (Senator Greenwood) who in this chamber represents the Attorney-General (Mr N. H. Bowen) when replying to Senator Murphy after a vote had been taken on an amendment which had been moved by my colleague Senator James McClelland. I gather from the remarks of the Minister that he was reprimanding the Labor movement for not having spoken up at an earlier age. He was adopting the attitude: Speak up or shut up. Because I gained this impression from the Minister’s remarks I come into the debate at this stage. Having read clause 8 of the Bill I am concerned at the effect it will have on decent citizens of this community, who make a personal decision - it is a personal decision - to take part in a demonstration, be it against some government policy or for the purpose of trying to get the Government to adopt a certain policy. Last night my friend Senator Kennelly spoke a lot about the Georges River byelection. I can tell the Minister and. honourable senators on the Government side something about that by-election because I played quite a prominent part in helping Mr Walker the new member for Georges River in the New South Wales Legislative Assembly secure a victory in a seat which had been held by the Liberal Party for some 15 years.
On the day before the Georges River by-election was held there was a Moratorium demonstration in Sydney. It was designed to be a peaceful demonstration. Many thousands of young people who object to this Government’s policy on Vietnam took part in the demonstration. They made a personal decision to take part in the demonstration because they objected to this Government’s policy. Then something happened. The balloon went up. There was quite unnecessary and violent behaviour, probably on both sides. But because of the manner in which that disturbance took place hundreds of young people who, apart from their interest in Vietnam had never been interested in politics before, came into the Georges River by-election. They were concerned at the manner in which their civil liberties were being impinged upon. I can see great difficulties involved for the future civil liberties of young people who make personal decisions to try to influence the Government’s policy by peaceful demonstrations. Sub-clause (2) of clause 8 provides
A direction under this section shall be given orally-
That is by a policeman of the rank of sergeant or above - - and in such a manner as to be likely to be audible to the persons constituting the assembly, or to as many of them as practicable . . .
If the Minister has seen any of these demonstrations he will know that they are as long as a mile or 2 miles. Violence or fear of violence can occur at the head of the column. Two miles further back - 4 blocks away - are people who for the purposes of this sub-clause could be assumed to have been informed that they are taking part in an unlawful assembly. When they get around the corner and. see that there has been violence, and they do not disperse, all the thuggery to which Senator Murphy has alluded can take place.
– That is the situation that the Government is concerned to avoid - thuggery taking place.
– I think that the Government is deliberately encouraging it by clause 8 (4.) (b), which provides:
For the purpose of -
dispersing an assembly in respect of which a direction has been given under this section; or
dispersing or suppressing an assembly to which paragraph (b) of sub-section (1.) of this section applies (whether or not a direction has been given under this section in respect of the assembly), it is lawful for a person to use such force as he believes, on reasonable grounds, to be necessary for that purpose and is reasonable proportioned to the danger which he believes …
There is complete discretion on the part of a person who wants to break up a mob to get in and belt and use as much force as he likes. A great demonstration took place in Sydney in 1968 when members of the Australian Journalists Association were knocked around and belted by people who were supposed to be preserving the law. The New South Wales District Committee of the Association carried this resolution:
This committee is disgusted at the deliberate violence and provocation on the part of police involved in suppressing the Martin Place demonstration. It is alarmed at the fact that police signalled a deliberate intent towards violence by removing the numbers from their tunics. It is angered by the deliberate assaults on newsmen and the deliberate damage done to radio and television equipment by police, and the attempts by police to suppress coverage of the clash.
Will any honourable senator tell me that newsmen attend demonstrations for the purpose of demonstrating against the Establishment. They are there to report details of a demonstration through the mass media for the benefit of the public. On the occasion I have mentioned they were caught up in the row. If the Government proceeds with this sort of legislation I dare say that it will be the responsibility of a journalist to attend a demonstration at his own risk or not to attend at all. When journalists complained to the management of John Fairfax and Sons Ltd, Mr Lou Leek agreed that the police were over the fence in their behaviour. He said when he received a report from one of the journalists on the staff of the ‘Sydney Morning Herald’ who had been belted around and put into hospital, that through the Chief of Staff he would let the AJA know what action, if any, would be taken.
Members of the police force had removed their numbers. By this legislation the Government is encouraging that sort of attitude and is encouraging other members of the community to get in and use force and bash. This measure is against the interests of ordinary decent members of the community, of young children and students who decide for a personal and private reason, because they are opposed to this Government’s policy and want to influence a change of that policy, to take part in demonstrations. In the interests of the Australian community and civil liberties this clause should be rejected by the Senate.
– I wish to direct a question to the Minister. He indicated earlier that if reasonable propositions were put to him he would be prepared to consider them. At this stage I am prepared to concede that the Government has the numbers to pass this Bill, but I did detect on the part of the Minister a certain puzzlement when he read the Riot Act and discovered the extent to which clause 8 (4.)(b) differs from that Act. I do not ask him to confirm or to deny that impression. I appreciate that the Minister is not personally responsible for the drafting of the Bill. It was drafted for him by somebody else and given to him. From a reply that the Minister gave to my interjections I understood that he was under the impression that a person would have the right to take forceful action in the dispersal of a demonstration or assembly only if a direction had already been given by a police officer. I think he would have to concede on reading clause 8 (4.)(b) that without being extravagant and saying that all sorts of alarming things will take place, there is the possibility that people will think, if they are aware of the provisions of this Bill, that they will be able to engage in acts of violence with some impunity when taking part in an assembly.
One can imagine an assembly being conducted in the terms of clause 8(l.)(b), ‘in a manner involving such unlawful violence or damage’. It may occur while the assembly is being carried on and may be in no way the responsibility of persons who have organised the assembly - the persons who, in the ordinary sense of the words, are conducting the assembly. Nonetheless, during the course of the assembly unlawful violence or damage may take place. It could then follow that another person or group of persons who oppose the purpose for which the assembly was called, without any direction having been given either by a magistrate or a police officer, believing that there was a danger of further violence taking place, use force to disperse the assembly. In any event, they need only to have seen that unlawful damage or violence was taking place and they might use force to disperse the assembly. I put it to the Minister that this is a distinct possibility and is not extravagant. Without specifying political ideologies, people who wish to disperse an assembly could take advantage of this clause. If a group during the conduct of the assembly say that unlawful violence or damage was taking place within the framework of clause 8 (4.)(b), that group would be able to use force to disperse the assembly without a police officer ever having given a direction that they should do so.
I appreciate that remedies could be available to people who felt agrieved by the actions of those persons who had used force to disperse the assembly, but in proceedings taken against the persons who had used force it would be necessary to show that there had not been unlawful violence or damage to property in order to succeed in the proceedings. I would imagine that it would be virtually impossible to succeed if any unlawful violence or damage had taken place and that the persons who forcefully dispersed the assembly would have a perfect defence to any subsequent proceedings taken against them with regard to the use of force. 1 hope I have put the proposition reasonably to the Minister and have not been extravagant. I think, as he himself observed when he read the Riot Act, that the force could be used only after a direction had been given. I will not labour the point about whether it is a magistrate or a police officer, but under the Riot Act a direction had to be given by somebody in authority. Under clause 8 (4.) (b)- I think the Minister himself was surprised to realise this - this action to forcibly disperse the assembly may be taken by some private person, whatever his motives may be, who is not acting under the direction of any police officer. In fact, it is even conceivable that he may be acting contrary to the wishes of a police officer or a lawful authority. I ask Senator Greenwood whether he has considered this point.
– It is a pleasure to respond to reasonable responses. I must say that the way in which Senator Wheeldon put his case does raise the possibility of a situation occurring in which a person who was bent on causing trouble could endeavour to misuse these provisions. I think it is the same as what Senator Murphy said, namely, that if there is a demonstration and one person - whom Senator Murphy called an agent provocateur - throws a brick through a window and that window is damaged unlawful damage is occurring, and in the circumstances of clause 8 (4.) it would be permissible for a person, even though an order had not been given for that demonstration to disperse, to believe that he was justified in taking action of a violent character to disperse that demonstration.
The fact that that person would not be entitled, on an examination of this provision, to do that may appear to him to be a factor of no consequence because, as I have said, the proposition one must predicate is that a person is determined to cause trouble. I do not think that any criticism of that situation is reason for regarding this provision in clause 8 as unnecessary. It is a situation which exists under the present law, just as it would exist under the law as proposed here. But the point is that after this Bill has come into force what will become quite clear is what a person is entitled to do and what he is not entitled to do. I believe that that is more advantageous than for a person to proceed on an assumption that there are some things he can do and some things he cannot do but he can never find out what they are because he has not recourse to an old and ancient Riot Act.
This provision was designed to codify the common law, to extract the law which applies at the present time, to put it into language which is clear and to say: ‘This is what the position is’. It is not new, and it is not something which brings in concepts hitherto unknown to the law. Senator Wheeldon referred to the Rio* Act and provisions under that Act. I quoted section 1 of the Riot Act 1714. It is clear from that section that if a person persists in riotous behaviour - in the context of this Bill, in being a member of an assembly where the assembly is causing unlawful physical violence or unlawful damage to property - there is an obligation upon the citizen where a felony is occurring to take action to prevent that felony occurring. That is the obligation of every citizen.
– Section 1 of the Riot Act surely places this obligation on the citizen after a direction has been given. The provision in this clause does not codify the existing statutory or common law. but creates a new right; and that is of the citizen to disperse the assembly without any direction having been given.
– I agree that in its express terms that is what the Riot Act does, but the way the Riot Act does it is to say that anybody who does not disperse in those circumstances is to be adjudged guilty of a felony. It is the fact that a person is adjudged guilty of a felony which calls in aid the assistance of the citizen. If there is a felony, whether it be committed as part of riotous behaviour in an assembly or whether a person is committing the felony quite apart from being part of an assembly, there is an obligation on the citizen to take action to prevent that felony from occurring. Let me illustrate the point by referring to what is said in Kenny’s Outlines of Criminal Law’, which is a basic textbook that all students read. It states:
The alarm with which the common law viewed unlawful assemblies naturally led to the establishment of the rule that they may be dispersed forcibly; the particular degree of force which persons will be lawfully justified in using must be determined by the necessities of each individual case. Unlawful assembly and riot are only misdemeanours at common law, and although blows with fists or with sticks may be struck when necessary to suppress the persons involved it will be unlawful to kill any of the rioters or to employ deadly weapons. However, if the rioters go beyond their misdemeanour and proceed to the length of some felonious violence, then even the infliction of death will be permissible in resisting such violence or in dispersing or arresting the rioters. However, it is an indictable misdemeanour at common law to refuse to aid or .assist a constable in the exercise of his duty in order to preserve the peace.
Looking at the provisions in Australia, section 261 of the Queensland Criminal Code provides that it is lawful for any person to use such force as is necessary to suppress a riot and is reasonably proportioned to the danger to be apprehended from its continuance. One sees in that the derivation of part of what appears in clause 8 of this Bill. Section 262 of the Queensland Criminal Code provides that it is lawful for a police officer to use such force as he believes on reasonable grounds to be necessary in order to suppress a riot and as is reasonably proportioned to the danger which he believes on reasonable grounds is to be apprehended from its continuance.
– What is the definition of ‘riot’? Does a riot become a riot only after it has been ordered to disperse? I do not know the definition of ‘riot’ under the Queensland Criminal Code.
-(Senator Lawrie) - Order!
– The honourable senator is asking about the definition of ‘riot’ under the Queensland Criminal Code. I take notice of his question.
– That surely is an important point.
Order! The honourable senator made his speech a moment ago, and he should let the Minister make his now.
– The same provision applies in section 237 of the Western Australian Criminal Code. Indeed, section 202 of the Queensland Criminal
Code makes it an offence for a person required to assist a police officer in suppressing a riot to omit to do so without reasonable excuse. We have in clause 8 a provision which can operate only if, first of all. there is an assembly of 12 or more people. There has to be a large group. There has to be a reasonable apprehension in the mind of a police sergeant or someone of higher rank that there will be, having regard to the conduct which is taking place, unlawful physical violence or damage to property, or actual damage to property has to be occurring. In those circumstances, an order may be made by a police officer of the rank of sergeant or above that that assembly is to disperse; and, if that assembly does not disperse, then persons using reasonable force may assist in its dispersal. There is a provision which says that even if no order has been given by a police officer requiring the assembly to disperse but physical violence or damage to property is actually occurring, then it will be lawful for any person, provided that he conducts himself reasonably and does not use force which is greater than that which is reasonably proportioned to the circumstances in which he finds himself, to take action to disperse that riot.
I believe that the requirements of public order are such that there should be provisions of that character to ensure that the peace is preserved. Unless we have provisions of that character there is a virtual licence for a mob to go on a rampage. One of the fundamental requirements of government is that order should be preserved in the society for which that government is appointed. If one goes to origins there can be no other justification for government. I believe that to object to a provision such as this, which is couched in language which requires reasonable conduct from persons and to know that any offence under this clause is triable in the courts by a magistrate, independent of government, surely is a safeguard that is consistent with all the traditions that we hold valuable in Australia. I think the provision is an eminently reasonable and sensible provision.
– I am rather disappointed that the Minister had to add his peroration to his reply to my question which, 1 thought, had tended to avoid raising that type of issue. I wish to put a proposition to the Minister. I feel that, having put this proposition, there is not much more that 1 at any rate could say on the matter. Would he not concede that there could be a situation where an assembly is taking place, where there has been unlawful violence or damage caused by some persons present at the assembly, where there are police officers present and the police officers believe that it is unreasonable in all the circumstances to call upon the assembly to disperse, but despite the fact that the responsible police officers present have decided that in all the circumstances they would not be warranted in calling on the assembly to disperse, because there has been violence or unlawful damage to property, a private citizen would be acting lawfully in using force to disperse that assembly although a police inspector, a police superintendent or a police commissioner present on this occasion may have felt that in all the circumstances it would have been unreasonable to disperse the assembly? Despite the opinion of the police, in those circumstances would it not be permissible for these private people, whoever they are, to use force to disperse the assembly? Would it not be lawful for them so to do?
– I doubt very much whether it would be lawful. One could argue these things academically. They provide very interesting arguments. To take the point that Senator Wheeldon raised, if there is a riotous group, and if the police sergeant does not believe that that group should be dispersed because of the situation which has been reached and if an individual, in the presence of that police officer, uses violence, I would be very surprised if the police officer did not haul that person away immediately. I think that is the practical side of the situation that the honourable senator has put.
That the clause stand as printed.
The Committee divided. (The Chairman - Senator Bull)
Majority . . . . 3
Question so resolved in the affirmative.
Clause agreed to.
Sitting suspended from 1.8 to 2.15 p.m.
Debate resumed from 4 May (vide page 1319), on motion by Senator Cotton:
That the Bill be now read a second time.
The Opposition does not oppose this Bill which is a fairly simple measure. Its purpose is to ratify the protocal which was agreed to in New York on 12th March at the assembly of the International Civil Aviation Organisation. It simply provides for an increase in the number of seats on the council of the organisation, which is the governing body of ICAO. This having been brought about by an increase in the number of members of the organisation. I propose to comment very briefly on the Australian delegation’s support for the increase as outlined by the Minister for Civil Aviation (Senator Cotton) in his second reading speech. I hope that these increases will not be accepted automatically. The Minister mentioned three reasons for our support of the increase in membership. He said:
First, it was the wish of the majority of member States for an increase of three members. Secondly an increase of three could not be considered unreasonable in the light of the fact that
Che tocal membership of ICAO had grown. . . . Thirdly, proportionate increases have been made over the years in the size of the executive bodies of other specialised agencies of the United Nations.
I wonder whether these are real justifications for increasing the number of persons in United Nations agencies. I hope that the Australian delegation will give this matter serious consideration because there are many complaints about United Nations agencies increasing their numbers without proper consideration being given to the need for an increase.
I need to make only one other point concerning the Bill. I refer to Article 44 of the International Civil Aviation Agreement and particularly to sub-sections (d) and (e). The article states:
The aims and objectives of the Organisation are to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport so as to:
Meet the needs of the peoples of the world for safe, regular, efficient and economical air transport;
Prevent economic waste caused by unreasonable competition.
As most of us are aware, the great bulk of international civil aviation is under the control of the International Air Transport Association. There has been much criticism in the last year or two concerning the price structures agreed to by IATA. As the article from which 1 have just read relates directly to more efficient and economic air transport throughout the world, there is a direct relationship between the work of these 2 organisations. I should like to read very quickly an extract from a statement on the international air transportation policy of the United States which was approved by the President on 22nd June 1970. It states:
The United States should continue to accept . IATA as the machinery for pricing scheduled services, subject to continuing safeguards, but supplemented by increased direct informal exchanges between governments. Continued support should also be given to the establishment of IATA and non-IATA charter rates on a free competitive basis.
The important message there concerns the direct informal exchanges between governments. I consider that ICAO is just the organisation to do this. I suggest to the Minister that he might discuss this with his Department and our Australian represen tatives who will attend these meetings because we cannot accept a situation in which some international organisation such as IATA has complete and absolute control over what is done with policy. Governments are directly involved. Australia is especially involved because our overseas airline is Government owned. We should ensure that through ICAO we can express the policies of this Government and ensure that notice is taken of trends of thinking in world international aviation. The Opposition supports the legislation.
– in reply - I thank Senator Wriedt and the Opposition for their support, but also 1 thank the honourable senator for his comments about the International Civil Aviation Organisation and particularly about Article 44 of the International Civil Aviation Agreement which refers to the objectives of ICAO. Whilst it nowhere mentions the International Air Transport Association, nonetheless 1 take his point. IATA is recognised by ICAO as a body formed by international airline operators who tried to get some regularity in the business. Undoubtedly it is completely independent of ICAO, but at the same time it works in the same area of general aviation interest. I shall take the honourable senator’s comments to the Department of Civil Aviation with the suggestion that they be borne in mind.
I do not think there is any point in my incorporating in Hansard Article 44; 1 merely mention that it deals with the safe and orderly growth of international civil aviation; the encouragement of the arts of aircraft design and operation for peaceful purposes’, the encouragement of the development of airways and airports; meeting the needs of people for safe air transport; preventing economic waste; ensuring that the rights of contracting States are respected; avoiding discrimination; promoting air safety; and promoting generally the development of all aspects of international civil aviation. The honourable senator commented on IATA’s ability and general pattern of setting world fare structures and world flying conditions for domestic and international carriers. In that respect I make the point that the comment made by the United States President is more valid for a country like the United States, which has a huge aircraft manufacturing industry - I think an over capacity - and an airline industry which is in substantial over capacity. We would have to approach this problem from a slightly different angle. I am sure that the honourable senator would appreciate that.
However. I take his comments which were intended to be of serious impact and they will be communicated to the people who will go to ICAO. The honourable senator mentioned the cost of international agencies. I have asked the Department previously to inform me of the general costs of our membership of ICAO because I think this is something that the Senate is entitled to know. The expenditure of ICAO. which is authorised by the ICAO assembly, is provided for by miscellenous income and cash surpluses from earlier years, but it is financed mainly by annual assessment of contracting States in accordance with their scale of assessment for each year as agreed by the assembly. Over the past 10 years the total amount contributed by the States towards the expenses of the Organisation has been of the order of $US4m to $US7m. During this period Australia’s assessed annual share of the expenditure has ranged from 2.46 per cent in 1961 to 2.02 per cent in 1971. Australia’s contribution for the calendar year 1971 will be SUS141.825. Senator Wriedt said that because the number of members of the Council is being increased from 27 to 30 it might add to our costs. My information is that the Department of Civil Aviation believes that there will be practically no addition to the cost of running ICAO when the membership of the Council is increased from 27 to 30. I again thank honourable senators for the speedy passage of this legislation through the Senate.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without amendment or debate.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Wright) read a first time.
– I move:
This Bill is inter-related with the Stevedoring Industry Charge Assessment Bill which will shortly be before the Senate and it may meet the convenience of honourable senators if the measures are dealt with together. In these second reading speeches I will explain the background and reason for each of the Bills.
The Stevedoring Industry Charge Assessment Act 1947-1967 provides for the assessment and collection of the stevedoring industry charge at rates prescribed by regulation under the Stevedoring Industry Charge Act. Different rates are payable in respect of the classes of waterside workers. Class ‘A’ waterside workers are registered regular waterside workers employed on weekly hiring at permanent or continuous ports who are eligible to join the Stevedoring Industry Employees Retirement Fund. Class ‘B’ waterside workers are employed at continuous non-permanent ports and are eligible to participate in the retirement fund. Class ‘C waterside workers are those employed at non-continuous ports and include irregular waterside workers on Part B of the register at all ports.
The Stevedoring Industry Charge Act 1947-1967 limits the rate of the charge payable in respect of employment of these three classes of waterside workers as defined in the Stevedoring Industry Charge Assessment Act. The maximum permitted rates of charge under the charge Act are $17.55 per man-week, 80c per man-hour, and 55c per man-hour for ‘A*, ‘B’ and ‘C classes respectively and regulations under that Act at present prescribe for the charge to be levied at these maximum rates. Up until 1967 the Australian stevedoring industry had been organised almost entirely on a casual employment basis The Aus tralian Stevedoring Industry Authority administered the labour force of waterside workers engaged in stevedoring operations through the registration system under the provisions of the Stevedoring Industry Act 1956-1966. The role of the Authority included such important functions as labour allocation, payment of annual leave, tick leave, long service leave and holiday pay as well as attendance money, transfer costs and subsidy of amenities such as waterfront cafeteria services. These commitments were met from revenue raised through the stevedoring industry charge.
In 1967 the National Stevedoring Industry Conference which was set up by the Government in 1965, recommended major changes in the industry including inter alia: A scheme for permanent employment of waterside workers in major ports; a pension scheme to apply to regular waterside workers in all permanent and continuous ports; and arrangements to cope with anticipated redundancy in the industry. In particular the conference report called for major changes in the role of the Australian Stevedoring Industry Authority. The Authority’s labour allocation functions were to disappear in permanent employment ports but it was to retain all its then existing functions in non-permanent ports. When the parties to the National Conference - the Australian Council of Trade Unions, the Waterside Workers Federation, the Association of Employers of Waterside Labour and the Australian Stevedoring Industry Authority - endorsed the report, the Government agreed to provide legislative authority to cover these and other matters. The enabling legislation was the Stevedoring Industry (Temporary Provisions) Act 1967, which was subsequently extended in operation upon its expiry in June 1970 until 30th June 1972.
Immediately before the introduction of the permanent employment scheme there was a uniform charge of 48c levied on each man-hour worked by waterside workers in the industry. It was not practical to continue with a uniform charge when the new scheme came into operation as, for example, employers of weekly hire employees now had to carry at their own expense costs such as annual leave, sick leave and public holidays as well as administer their own labour allocation. In addition it was decided that the employers contributions to the new pension scheme and the redundancy fund should be financed through the charge. Before the implementation of the national conference scheme waterside workers who were available for work but not required to work received attendance money paid by the Authority from the proceeds of the charge. On the introduction of permanent employment it was recognised that waterside workers on weekly hiring under the conference arrangements would be in a similar situation insofar as being available for work but on occasions not required to work. The men concerned do not lose by this because they are on a weekly wage. Insofar as the employer was concerned it was decided, where in previous circumstances attendance money would have been paid, the employer should be reimbursed from the charge for full shifts paid for when there is no work for the men. Attendance money payments continued as before for waterside workers who are not engaged on weekly hire and who are defined as classes B and C waterside workers.
Prior to the changes in 1967 the basis for financing the stevedoring industry long service leave scheme through the charge was to provide funds only to meet payments on account of leave taken on a year to year cash basis. In 1967 when the components of the new charges were calculated it was decided to convert the previous financing arrangements from a cash outgoing basis to one where a fund would be built up to enable sufficient money to be available to pay all long service leave as and when it became due. The Authority continued to administer the long service leave scheme. The conclusion reached in 1967 was that the major permanent employment ports should continue as in the past to contribute something to the costs in the remaining ports. The maximum rate set for class A waterside workers was therefore fixed at $17.55 per man-week under the 1967 legislation and regulations made under the Charge Act at that time fixed the actual rate at $16.85 per man-week. The notional hourly rate was calculated at 48c being the same as the pre-existing charge in the industry.
The maximum charge in respect of class C waterside workers was fixed at 55c per man-hour, only 7c higher than the pre- 1967 level and this amount was determined on the basis of the additional amount needed to finance the long service leave fund. At the continuous ports for class B waterside workers the maximum rate of 80c was 32c higher - 22c of this representing the pension, redundancy and long service leave items. The balance of 10c over and above the pre- 1967 charge represents a further contribution towards the cost in those ports. The regulations made in 1967 set the charges for both B and C class waterside workers at the maximum provided under the legislation. However, since the introduction of permanent employment in 1967 - when the original charges were determined and expected to cover the situation until June 1971 - costs have increased as follows:
I should point out that whilst the total waterside worker labour force has decreased from 20,140 in 1967 to 17,178 at the end of February 1971, the demand for labour over the past year or so has fluctuated quite markedly. The result has been that on occasions there have been large surpluses of labour available but not required to work. There are two basic reasons for this. One is the need to retain a labour force which is adequate to cope with the peak demands created by trade factors and shipping movements. The second is that the change from conventional to container and unit load vessels has not proceeded at a uniformly consistent rate. Accordingly the incidence of paid but unworked shifts has become the major item of expenditure from the charge revenue and as such is under close scrutiny by the Government. Every effort is being made to keep this factor within reasonable bounds but of course the fluctuations in trade and shipping movements have and always will be a determining influence on the actual level of the labour force required to service the industry.
Because of the progressively increasing costs the Australian Stevedoring Industry Authority has found itself unable to meet its financial commitments from the charge revenue. As an interim measure in mid 1969 the Authority reduced the amount paid to the long service leave fund by 2c per man-hour from that portion of the charge relating to the long term funding of the Long Service Leave Reserve in order to meet day to day expenditure. In October 1970, the Authority was forced into the position of suspending payments to the Long Service Leave Reserve Fund altogether and in addition some interest bearing deposits falling due from that fund reserve have not been reinvested but utilised to meet current expenditure. The cash reserves of the Authority were entirely exhausted in November 1970 and since the 16th October 1970 the Treasury has had to make advance payments of S800.000 each month to overcome the current deficits.
As a further interim measure pending consideration of legislative changes the charge for class A waterside workers was increased by regulation to the maximum provided by the legislation of SI 7.55 per man-week, a notional equivalent of 50c per man-hour, as from the 15th February 1971. It is regretted that further increases in the charge are necessary particularly at a time when the Commonwealth is concerned to contain price increases throughout industry. They are needed to restore the financial position of the Authority in order to meet its commitments from the charge revenue and recoup the short-fall in the Long Service Leave Fund which has been eroded since mid-1969 in the ways in which I have just outlined. However, it needs to borne in mind that the charge rates fixed in 1967 have been held at those levels for 3 years during a period of rapidly rising costs in the industry. The increases now needed have come about because of the accumulation of arbitrated decisions of the Conciliation and Arbitration Commission, other changes in wage rates and conditions of employment awarded with the consent of the stevedoring industry employers and the increased incidence of occasions when there is no work for the men.
In fact an increase in charge rates has been specifically requested by the employers and they have indicated that it would be intolerable in their view to continue to allow the Authority to engage in the deficit financing of the financial commitments of the industry. In this respect it needs to be pointed out that the Australian Stevedoring Industry Authority is primarily acting as an agent for the industry’s employers in channelling the funds from the charge back to them for pensions, redundancy and paid but unworked shifts. It might also be said that the Authority plays an agency role for the employers in its administration of the industry long service leave scheme. The employers, as they did in 1967, have again accepted that the financial arrangements for classes B and C waterside workers should be subject to some minor subsidy from the charge levied on the work performed by class A waterside workers. The increases in the charges proposed reflect approximately the same degree of subsidy as that fixed in 1967. To have done otherwise would have placed a disproportionate cost burden on employers in the non-permanent employment ports.
The main purpose of the Stevedoring Industry Charge Assessment Bill 1971 is to amend the Stevedoring Charge Assessment Act 1947-1967 to provide for a conversion of the charge for class A waterside workers from a man-week basis to a manhour basis. When the 1967 legislation was introduced the employers specifically requested that the stevedoring industry charge for class A waterside worker should be expressed as a weekly amount as all their records were being kept on this basis in respect of weekly hire employees. The then weekly rate of $16.85 was calculated on an assumed average working week, over a full year, of 37.4 hours. After allowance was made for authorised award absences in a year for annual leave, sick leave and public holidays, the notional hourly rate determined was 48c. At the present weekly rate of SI 7.55 the notional hourly rate would be 50c. Experience has demonstrated that the effective hourly rate of charge paid by individual employers varies according to the degree of labour utilisation and the weekly rate, therefore, has operated unfairly against those employers unable to obtain maximum utilisation of labour.
Put another way, if an employer because of stevedoring contract commitments worked his men on average in excess of 37.4 hours per week the effective hourly rate of charge from the weekly levy of $17.55 would be less than 50c per manhour. Therefore the busier larger employer would be able to get all hours worked at a cheaper hourly rate and enter into contracts to the disadvantage of other employers. The proposed change in the class A charge from a man-week to a man-hour basis has been recommended by the Association of Employers of Waterside Labour.
Because of the proposed conversion of the class A charge to a man-hour basis the Stevedoring Industry Charge Assessment Bill also provides for consequential amendments to the principal Act to exclude the levying of the charge on specified manhours paid for by the employer but not actually worked by his waterside workers. These paid hours are almost entirely in respect of awarded annual and sick leave entitlements and shifts where waterside workers were available for work but not required to work.
The purpose of the Stevedoring Industry Charge Bill 1971 is to amend the Stevedoring Industry Charge Act 1947-1967 to permit the charge to be imposed at rates up to $1 per man-hour for class A waterside workers, $1.75 per man-hour for class B waterside workers and $1.20 per man-hour in respect of class C waterside workers. In 1967, the principal Act was amended to permit the respective charge rates to be fixed by regulation at a level not exceeding the maximum rates authorised by the Act. It is the Government’s intention to declare as soon as possible by regulation that the new rates of charge be 65c, $1.20 and 82c per man-hour for classes A, B and C waterside workers respectively.
These rates in the proposed regulation should be adequate to meet costs to the 30th June 1972 and recoup the deficit in this financial year. Leaving aside the prospect of further increases in wage rates it can be expected there will be scope for some significant reduction when the past services benefits section of the pensions fund and the long service leave reserve have been fully funded and the labour force has been stabilised at an appropriate level following completion of the transition to containerisation and other forms of unit loading.
In summary, since November 1967 the 33.5 per cent increase in the award rate of pay for waterside workers and other progressively increasing costs which I detailed earlier in my speech make it necessary for changes to be made in the charge rates. I commend the Bill to honourable senators.
– I do not know whether the Minister for Works (Senator Wright) will be disappointed but I indicate now the Opposition offers no bar to the passage of the
Bill and, therefore, we will not take the adjournment of the debate. I say that I do not know whether he will be disappointed because he read for so long that it appeared he was trying to convince us that this was the right method to adopt.
– It is a pot of gold. Why should you object?
– Now, Senator Sir Magnus Cormack, I am trying to be co-operative with the Government.
– I am not trying to be provocative.
– Please do not tempt me to be otherwise. I believe that the second reading speech of Senator Wright in effect pays tribute to those within the industry. There has been a tremendous transformation in this industry. It has passed from what may be regarded as a casual basis industry to one of permanency. Not so long ago the members of the Waterside Workers Federation were regarded always as the bad boys of industry. I personally have never subscribed to that view knowing of the work they have had to do, but I wonder now on reflection whether people were justified in saying the unkind things they said about the members of the Waterside Workers Federation in view of the fewer industrial disturbances that have taken place since the industry was organised on a permanent basis. I question whether on reflection people may not feel a little guilty in their conscience about so many barbs having been thrust at the waterside workers in the past. I repeat that I believe it is a fine tribute to those within the industry that they have been able to accommodate to the extent that they have such a transformation within the industry in working conditions, wages and industrial regulations. The partners to this legislation have accepted the proposition. I believe it would be wrong, therefore, for us to do anything but accept it because it was done in the complete spirit of conciliation.
There are one or two observations I wish to make about the Minister’s second reading speech. Quite rightly, he pointed out that the work force in the Waterside Workers Federation has been decreasing. The work force has decreased, over a 4- year period, from 20,140 in 1967 to 17,000 at the end of February 1971. Membership of the Federation has been reduced by about 3,000. That is a substantial reduction in any work force and it would indicate to everybody the influence of mechanisation or changed circumstances within an industry. These things substantially reduce a work force and we should bear this in mind when industries are affected by changed circumstances.
– That represents a reduction of about 14 per cent.
– That is right. I hope that the Minister will enlarge on his statement in the second paragraph on folio 6 of his second reading speech. He said:
Accordingly the incidence of paid but unworked shifts has become the major item of expenditure from the charge revenue and as such is under close scrutiny by the Government.
I am, perhaps, a suspicious character by nature when it comes to industrial matters. I hope that the Government does not have it in mind to do anything that will affect the wage envelopes of those within this industry. Perhaps the Minister can give an explanation of those words.
I think the Minister’s second reading speech indicates another very important thing in industry. I refer to the fact that the Waterside Workers Federation has been able to negotiate successfully, or by means of arbitration, and to hold its position in line with the Metal Trades Federation. We must consider that waterside workers usually are regarded as semiskilled, certainly when compared with metal trades workers. I believe it speaks volumes for the work of the officials of the Waterside Workers Federation that they have been able to adjust the wages of members of their union in line with those of a skilled industry. If this has been done substantially by conciliation it again reflects credit on the industry for having been able to get together around the table and adjust wages in a manner that can be regarded as satisfactory to all concerned.
I want to finish this speech by paying tribute to those within the industry for having been able to adjust so readily to the changed circumstances. I pay tribute to them for having adopted progressively and consistently the spirit of conciliation. I believe it is a tribute to all concerned that they have progressed so smoothly in this transformation period and that they have been able to work harmoniously. I hope that in future their working conditions will be safer. Some 3 weeks ago - I speak from memory - I asked the Minister a question about safety measures in the waterfront industry. I am not criticising the Minister for not replying as yet to my question. The fact that I asked it would indicate to him and to others, if any indication were necessary, that I have an admiration for people who work within the Waterside Workers Federation and that I am keenly interested in the safety measures employed within the industry. At times I believe safety conditions are not up to the standard that should be observed in an industry of this nature or, in fact, in any industry. I conclude by stating that the Opposition offers no objection to this Bill.
– in reply - I listened to the observations made by Senator Mulliner to my second reading speech. As far as safety precautions on the waterfront are concerned, we all share his endeavour in this field to see that they are improved to the maximum possible extent. There has been a great improvement but there is room for greater improvement still. Safety in industrial work is an exigency of industry on the waterfront no less than in other fields of industry. The other aspect he referred to refers to what appears on folio 6 of my speech. I laid emphasis, when reading the speech, on this sentence:
Accordingly the incidence of paid but unworked shifts has become the major item of expenditure from the charge revenue and as such is under close scrutiny by the Government.
If honourable senators would be good enough to look at the annual report of the Australian Stevedoring Industry Authority - I do not have it at hand but have sent for it and may receive it before the conclusion of the debate on the next Bill relating to this matter - it will be seen that the idle time paid for in respect of waterside labour is by far the major item of expense. If we do not establish a rhythm in the container system of shipping that enables the loading and unloading requirements of ships to synchronise with the availability of labour, that is a charge which is, at the present time, of a wasteful degree. That is why the Government is going to give it close scrutiny in the interests of efficiency. Only with efficiency and economy can we have a satisfactory performance on the waterfront. My recollection is that the figure involved is $1.6m. If I am in error on that point I will take the opportunity later this day to correct it. I have no doubt the Senate would permit Hansard to incorporate the real figure. In order to indicate my concern in this matter, I want honourable senators to know the dimension of the figure. I thank the Senate.
Question resolved in the affirmative.
Bill read a second time, and passed through its remaining stages without requests or debate.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Wright) read a first time.
– I move:
That the Bill be now read a second time.
Basically this is a machinery Bill that stems from the changes in the Stevedoring Industry Charge Bill. I have already referred, in my earlier speech, to the principal changes made by this Bill. Having outlined the reasons for these measures relating to the stevedoring industry charge it is appropriate for me to touch briefly on some aspects of the stevedoring industry.
In the course of these second reading speeches I have given details of the considerable increases in wages and conditions which have been awarded to waterside workers. The most recent major concessions were made in May 1970 when the parties were before Mr Justice Moore. As part of that consent 2-year award both the Australian Council of Trade Unions and the Waterside Workers Federation gave a written undertaking there would be no stoppages of work in respect of those matters which were the subject of that agreement. In relation to other conditions of employment not covered by the agreement reached before Mr Justice Moore the
Waterside Workers Federation gave an undertaking that it would progress all claims with the employers through established procedures and take all reasonable steps to ensure that work continued normally while these negotiations were in progress.
It is common knowledge that since then some members and branches of the Federation have embarked on stoppages ranging from 1 hour to a full day on issues covered by these undertakings. Whilst the ACTU and the federal officers of the Federation have done their utmost to ensure that the undertakings which they gave in the proceedings before Mr Justice Moore were honoured, I want to make 2 points perfectly clear. Firstly, the Government expects the undertakings to be honoured. Secondly, the Government will be giving close attention to the performance of the Federation, its branches and its membership, recognising they are one of the principal parties to the agreement. The paries to the National Conference Agreement can scarcely be expected to endorse a new agreement in 1972 without attempts being made by branches of the Federation and the members to prove their bona fides in respect of the unexpired term of the current agreement.
It is to be regretted that the Federation in some branches has also become the vehicle, along with certain other maritime unions, whereby minority elements within the trade union movement have sought to convert industrial power into political action. In many instances strike action has been taken on a unilateral basis without the sanction of the ACTU or the Trades and Labour Councils. The performance of employers in the industry is not above criticism. In many instances unilateral concessions by individual employers have led to industrial stoppages when the Federation has sought to extend the gains made. In addition many employers have found it difficult to make the transition from the pre- 1967 casual system to permanent employment. In the Government’s view the employers have now had sufficient opportunity to be able to take fully on themselves all the responsibility of the weekly hire system to which they are parties. The
Government will be giving careful attention to the manner in which the employers at all levels administer these responsibilities.
On the credit side it is fair to say that the technological changes which have occurred in the stevedoring and shipping industries since 1967 have been achieved with the co-operation of the Waterside Workers Federation. This is in clear contrast to the experience of certain overseas countries where the stevedoring employees resisted strongly the introduction of new techniques. In Australia most of the disputation which has occurred has resulted from action by ancillary labour other than the waterside workers in these new areas. The Government views with serious concern the degree of industrial dislocation on the waterfront. The extent of this dislocation is clearly evident in the number of man-hours lost through strikes, which in 1969-70 were 1,072,592 representing 3.8 per cent of the total man-hours worked. This was the highest number of man-hours lost since 1964-65.
The National Conference Agreement and enabling legislation both come up for review before the end of June 1972. The Government will be carrying out an intensive review of the permanet employment arrangements and the matters to which I have drawn attention. Its judgement on how the scheme has operated and what action should be taken for the future will be influenced by the performance of the parties. I commend the Bill to the Senate.
Debate (on motion by Senator Milliner) adjourned.
Bill received from the House of Representatives.
Suspension of Standing Orders.
Motion (by Senator Wright) proposed:
That so much of the Standing Orders be suspended as would prevent the Bill being passed through all its stages without delay.
– I rise to oppose this motion. The reason I oppose it is that the Parliament is being turned into a rubber stamp. The message is described as a message from the House of Representatives. In reality it is a message from the Government because the Government is introducing measures into the other House and dealing with them in such a way as might appropriately be described as ‘rubber stamping’. The Government is using and abusing the House of Representatives to turn it into a vehicle for the oppression and destruction of the parliamentary institution. I think the attention of the nation ought to be drawn to this situation.
– The honourable senator can take until Christmas if he wishes.
– Mr Acting Deputy President, will you ask the Minister for Works (Senator Wright) to restrain himself while I am speaking?
– Mr Acting Deputy President, I wish to take a point of order that the honourable senator who leads the Opposition may not refer to debates which are currently in another place in the context of a matter which is before the Senate.
– I am not referring to the debates. I am referring to the absence of debate and the condition to which this Parliament has been brought by the actions of the Government.
– I rise to order. I suggest that the decorum of the Senate must be observed. Mr Acting Deputy President. I raised a point of order with you. I assumed that you would give a ruling. The Leader of the Opposition totally disregarded your position as the Acting Deputy President of the Senate and proceeded to carry on the debate without paying any acknowledgment to the dignity and the responsibility of your office.
– It is my recollection that the standing order to which Senator Sir Magnus Cormack referred was recently amended.
– I rise to speak on this because of the remarks of my friend and colleague, Senator Sir Magnus Cormack. I think he reflected on you, Sir.
The ACTING DEPUTY PRESIDENT (Senator Laucke) - Is the honourable senator speaking to the point of order?
The ACTING DEPUTY PRESIDENT - What is the point you are raising?
– I will put my argument in my own way and in my own time, as long as I am in order. I say that at least Senator Murphy was submitting a case as to why he opposed leave being granted to proceed with the Bill forthwith.
– I did not move for that.
– Senator Wright moved that so much of the Standing Orders be suspended as would prevent the Bill being passed through all its stages without delay. I submit that you, Mr Acting Deputy President, we were asked to deal with a point of order and you did not give a ruling on it. Then we had a most remarkable speech from my friend and colleague Senator Sir Magnus Cormack. In the very nice terminology that he uses, he stated that you had not given a ruling but had allowed Senator Murphy to continue with his remarks. Saying that you did not carry out your duties, Sir, was a reflection on the Chair. Although perhaps he did not mean it that way, that to my mind was what happened.
The ACTING DEPUTY PRESIDENT - I did not have an opportunity to rule on it.
Senator Kennelly - Therefore, I rise in my very humble way to protect you, Sir. I know that you are quite capable of protecting yourself, but of course help is always handy even in cases where it may not be needed. I trust that you will rule on the point of order and rule that Senator Murphy has the right to explain this unusual action of opposing Senator Wright’s motion. It is an unusual action, because we have been allowing these things to go through. We allowed the Minister for Air (Senator Drake-Brockman) to put through 3 Bills dealing with pigs. In those cases a motion similar to the one now before the Chair was moved without any objection from this side. However, now we say that because of what is happening in the parliamentary institution of this nation we should at least say that enough is enough; we should carry on our work with the decorum that the people of Australia desire of us.
– On the point of order, the standing order now reads:
No senator shall allude to any debate of the current session in the House of Representatives or to any measure impending therein unless such allusion is relevant to the matter under discussion.
Much as the Minister for Works may have thought that he was moving the first reading, he was not doing so: He moved that so much of the Standing Orders be suspended as would prevent the Bill being passed through all its stages without delay. It is on that motion that I am speaking and advancing reasons why the matter should not so proceed in the light of the consideration it so far has had.
The ACTING DEPUTY PRESIDENT - The point of order raised by Senator Sir Magnus Cormack is not sustained. Senator Murphy may continue.
– Thank you, Sir, Mr Acting Deputy President, and honourable senators. They are sorry days in which we live when the Government, at the same time as putting through measures it claims to be necessary to protect law and order, is breaking down the institution of Parliament. When laws can be made in the way in which these laws are being made, how can the Government except that there will be respect among the younger generation or anyone else for the laws in this community? Everybody knows that the laws are being rubber-stamped by this Government.
– I rise on a point of order. This is a vehement and illconsidered attack on proceedings elsewhere. The subject to which Senator Murphy should be required to address himself is my motion for the suspension of the Standing Orders. In the 20 years I have been here, that is the motion that has been moved in 99.9 per cent of all cases. Having regard to the opposition expressed by Senator Murphy to my motion, I will not press the motion and he will have to endure all the proceedings-
– I rise to order on what is being put by Senator Wright.
The ACTING DEPUTY PRESIDENT - Will Senator Murphy please allow the Minister to complete his remarks.
– I take the point of order that Senator Wright is digressing from the point of order before the Chair.
The ACTING DEPUTY PRESIDENT - Order! Please sit down, Senator Murphy. I call Senator Wright.
– I was indicating, Mr Acting Deputy President, on a point of order, that the honourable senator should be required to address himself to matters which are relevant to the motion, that is to say, the motion that the Standing Orders be suspended so as to enable the Bill to pass through all its stages without delay. That motion has been introduced here with 99 per cent of Bills over the last 20 years, and never in my memory, and never according to the records-
– Speaking to the point of order-
– I am entitled to put my point of order.
– Am I not allowed to speak to the point of order?
The ACTING DEPUTY PRESIDENT - Please be seated, Senator Murphy.
– Are you ruling that I cannot take a point of order while Senator Wright is speaking?
The ACTING DEPUTY PRESIDENT - I did not rule that way.
– I take a point of order in i elation to the speech Senator Wright is making on his point of order. The point is that the Minister is using this occasion to make a speech relating to the matter as a whole. He is not confining himself to the point of order. To refer to the practice of the last 20 years and offer to withdraw his original motions are matters unrelated to the point of order. I ask, with respect, that he be confined to his point of order.
The ACTING DEPUTY PRESIDENT - Will you, Senator Wright, please confine yourself to the point of order?
– I will indeed, Sir, calmly and leisurely, according to the proper tempo of parliamentary debate, but not dominated, if you will permit me to say so, Sir, by the Leader of the Opposition. I was saying that this is a usual motion. It does not attract any of the criticism that has been referred to as indicating that it is subverting law and order. Having said that it is a usual motion, following the practice of the Senate for 20 years, I submit that the remarks of the Leader of the Opposition are grossly irrelevant and-
– Dignity, old boy.
– Now the growls go on. And when I indicate that there is no need for a continuation of this intransigent intemperance because I will not persist with it, the proceedings of the Senate can turn to substantial debate, ignoring this irrelevant, domineering and overbearing attitude of the Leader of the Opposition.
– I suggest, with respect, that most of what the Minister said on the point of order has been quite irrelevant to it and that there is no substance at all in the point of order. You have previously ruled that I was in order in alluding to happenings elsewhere for the purpose of this debate. I have done no more-
– They have no relevance to this motion.
– The purpose of the Minister’s point of order is in effect to try to canvass once again the matter which was ruled upon by you after being raised by Senator Sir Magnus Cormack. I ask that you overrule the point of order.
The ACTING DEPUTY PRESIDENT - Order! The point of order is not sustained.
– We live in strange times when law and order is spoken of and the orderly conduct of Parliament demands that there be proper consideration in both Houses of the measures to pass into-
– I rise to a point of order. I refer you, Sir, to standing order No. 418 which provides that a speaker shall not use offensive words against either House. The Leader of the Opposition has referred to the other House as a rubber stamp. He has imputed improper conduct to that House.
The ACTING DEPUTY PRESIDENT - Order! No honourable senator shall reflect on another place.
– With respect, Sir, I would like to adopt your words. The other place is entitled to be treated with respect by every one of us, and by the Government. It is entitled to have its proceedings run in the regular course and to have the opportunity to consider legislation properly. This Parliament does not consist of separate bodies. The Parliament consists of three parts.
– This is irrelevant to the motion.
– There is the Crown, the Senate and the House of Representatives, and together they constitute the Parliament.
- Mr Deputy President, is it conforming to the dignity of this chamber for the Minister to roll about and say ‘Rubbish’ while I am addressing you and honourable senators? Has Senator Wright some special privilege?
The ACTING DEPUTY PRESIDENT - Senator Murphy, as you speak to the motion would you please relate your remarks directly to the motion, which is that the passage of this Bill be expedited in the usual way. That is the issue before the House. Please speak to it.
– Yes, Mr Deputy President. 1 say that this motion-
– This goes right back to the-
- Mr Deputy President, has Senator Wright some special constitutional or other privilege which enables him to go on in this fashion, distracting me while I am addressing the chamber?
– I rise to a point of order. The decorum of this House is of concern to every senator. Interjections, of course, are disorderly under the Standing Orders. If we desire to maintain the standing of this House proper procedures ought to be observed. If Senator Murphy wishes to disgress from the substance of the motion to which he is speaking in order to refer to any conduct in this house, I say with respect that he should do so by raising a point of order. If a point of order is raised, it can be dealt with as such. I feel that it is not in the interests of the decorum of this House to be speaking to a motion and then by way of asides, without reference to points of order, to refer to conduct.
The ACTING DEPUTY PRESIDENT - Senator Murphy, you will direct your words to the question before the House, without any other amplification.
– Senator Greenwood rose to suggest that if during the course of my speech 1 wish to refer to the decorum of the House I should do so by raising a point of order. 1 think 1 am entitled to draw to your attention the question of whether it is appropriate for the Minister to misconduct himself in the chamber. If you consider that I should do this by way of a point of order, in future I shall do so, but I think the matter could be much more easily remedied by the Minister himself. We are discussing a motion to suspend so much of the Standing Orders as would prevent the Bill passing through all stages without delay. I think that the motion deserves to be opposed on this day because of the circumstances in which the Parliament is operating. If proper consideration had been given to this matter we might have agreed as in the usual course to such a motion. It is notorious that matters are not being given the consideration by this Parliament which they are entitled to have. The people are entitled to have proper consideration of the matters coming before both chambers. That consideration has not been given.
– I rise to a point of order. While you were engaged, Sir, the honourable senator emphasised that the Parliament is entitled to consider matters coming before both chambers. That is a deliberate disregard of your ruling that the honourable senator should confine himself to the motion before this chamber, which is that standing orders should be suspended so that the Bill can pass through all stages without delay. If the honourable senator can adduce any argument to that point, I submit that you Sir, should permit us to listen to it; but you should prevent us having to listen to argument of another sort.
– I wish to speak to the point of order. I do not understand why I am being persistently interrupted because in the first instance you ruled on the point of order raised by Senator Sir Magnus Cormack that I was in order in alluding to the debates in the other House. That ruling was given by you and is binding on everyone. I had alluded to the debates. Since that time I have passed from dealing directly with the proceedings in the other place. It seems to me that, rather than dealing with the larger area which you had ruled previously was in order, I have been speaking on a much narrower confinement and I have been merely making a passing reference to the matter. I am certainly completely within the scope of the original ruling which you gave. 1 think it would be extraordinary to suggest that my statement that legislation is entitled to be given consideration by both chambers was not directed in a relevant kind of way to the motion. It was directed precisely to the subject matter of the motion. I believe that the matter is entitled to have that consideration. It has not had it in the other place. Therefore there is every reason why the Senate should not proceed to suspend the Standing Orders to allow the Bill to be passed through all its stages without delay. If these interruptions were to cease, I think I could finish my speech fairly quickly.
The ACTING DEPUTY PRESIDENT - I call Senator Sir Kenneth Anderson.
– I take it that I am now speaking to the motion.
– No, to the point of order.
– Not to the point of order because we have dealt with that. I take it that I am speaking to the motion.
– No, to the point of order.
– I would like the Chair, not Senator Murphy to tell me.
– I replied to the point of order.
– I would like the Chair to give me the instructions.
The ACTING DEPUTY PRESIDENT - Order! I have ruled that honourable senators may allude to a current debate in the other place but that they must not reflect on the other place. In dis.cussing the motion for suspension of so much of the Standing Orders, which has been opposed, there has to be complete relevance to that matter.
– We understand that. Am 1 now speaking to the motion or to the point of order?
The ACTING DEPUTY PRESIDENT - I have ruled on the point of order. You are speaking to the motion.
– That is what I thought.
– A point of order was raised by Senator Wright. I rose to speak on that point of order. When I concluded my remarks on the point of order I resumed my seat to enable the Acting Deputy President to rule on the point of order. I indicated that, if the interruptions ceased, I would be able to finish my speech expeditiously. If you, Mr Acting Deputy President, have ruled on the point of order, I would seek to continue my speech.
The ACTING DEPUTY PRESIDENT - Order! I have ruled on the point of order. In the circumstances, I call Senator Murphy to continue his speech.
- Mr Acting Deputy President, I shall now continue my speech.
– There is no need to continue your speech. The motion will be withdrawn.
– That interjection is, of course, disorderly. The Minister for Works (Senator Wright) has no leave to withdraw anything. There is a motion before the Senate. We say that the Parliament is entitled to give proper consideration to its affairs. The Senate should respect the other place. I think that that respect would be shown best by the Senate refusing to rush through this chamber this Bill. The Senate should not entertain this motion to suspend so much of the Standing Orders as would prevent this Bill passing through all its stages without delay. The Senate should reject that motion because it is not proper that the Senate should rush through this Bill when the other place has not had the opportunity to have proper consideration of it. The Parliament depends not only on the Government but also on the Opposition. It is the view of my colleagues, not only here but in the other place that members of the other place have not been able to put their views as they would wish and that in this Parliament, if matters are to be considered properly and if there is to be respect for the law, the Senate should show to the Government its views on this attempt to have rushed through this Parliament, including fhe Senate, measures which are not given the consideration which they deserve. I end on this note. I repeat the words of someone who spoke a long time ago in a place near a Senate. He said:
You Romans, if well I may call you so, consider what you are doing. Remember that you are assisting Caesar to forge those very chains which one day he will make you yourselves wear.
(3.40) - I was not present at the beginning of this discussion. As I understand the position, the Opposition is dissenting from a formal motion moved by the Minister for Works (Senator Wright) in relation to the suspension of so much of the Standing Orders. This is a contingency motion. Since the Standing Orders were written it has always been a contingency motion. In fact, Senator Murphy has in his name on the notice paper a contingency motion for the very purpose of having a contingency motion. I do not want to have engendered here the heat that has allegedly been engendered in another place. I want to get on with the job. I assure Senator Murphy that this is a contingency motion. Senator Wright, in his speech and by interjection, said that the Government has no intention of proceeding with the motion, in view of the points made. What the Government wants to do and what I am sure Senator Murphy and other honourable senators want to do is to get on with the job and to do our work. There is no significance in the motion moved by Senator Wright. There has never been any significance in such motions in the 18 years that I have been a senator. We will withdraw the motion. It is true that the motion is in the hands of the Chair. Senator Wright will seek leave to withdraw the motion and the Senate will get on with its business. If Senator Murphy is not happy about that arrangement or if he wants more reassurances, Senator Wright can use the forms of the Senate in another way so as to enable him to say the things that he wants to say. With great respect and with a great deal of patience, we should react to what I am saying. Let us proceed now to the next business.
– I seek leave to withdraw the motion in relation to the suspension of the Standing Orders.
The ACTING DEPUTY PRESIDENT (Senator Laucke) - Order! There being no objection, leave is granted.
Motion - by leave - withdrawn.
Motion (by Senator Wright) agreed to:
That the Bill be now read a first time.
Motion (by Senator Wright) agreed to:
That the second reading of the Bill be made an order of the day for the next day of sitting.
Consideration resumed (vide page 1480).
Clause agreed to.
Clause 10. (1.) A person who, in a Territory or on Commonwealth premises, while taking part in an assembly and without lawful excuse -
has in his possession a weapon, a missile or a destructive, noxious or repulsive object or substance;
discharges or uses a weapon or throws a missile;
throws, releases or deposits a destructive, noxious or repulsive object or substance; or
throws, releases, deposits or deals with an object or substance in a manner likely to cause injury to persons or damage to property, is guilty of an offence. (2.) An offence against the last preceding subsection is punishable on conviction -
in the case of an offence arising under paragraph (a) of that sub-section - by a fine not exceeding Two hundred and fifty dollars or imprisonment for a term not exceeding three months, or both; or
in any other case - by a fine not exceeding Five hundred dollars or imprisonment for a term not exceeding six months, or both.
– If the Committee is agreeable, Senator James McClelland may move to another seat, if the honourable senator who normally occupies that seat is agreeable to vacating it for the time being.Is there any objection to the honourable senator changing his seat? There being no objection, the honourable senator may move.
– Some of the provisions of this clause seem to be fairly reasonable. I think we would all agree that a person who, without lawful excuse, whether in an assembly or otherwise, discharges or uses a weapon or throws a missile should be guilty of an offence. There are a number of such provisions in this clause. Sub-clause (1.) states, in part:
A person who . . .
throws, releases or deposits a destructive, noxious or replusive object or substance; or
throws, releases, deposits or deals with an object or substance in a manner likely to cause injury to persons or damage to property, is guilty of an offence.
That is probably a reasonable kind of provision. Let us assume that an action is deliberately intended to cause injury. In that case it is probable that the word ‘wilfully’ should be inserted after ‘assembly’ so that the provision would read:
A person who, in a Territory or on Commonwealth premises, while taking part in an assembly wilfully and without lawful excuse. . . .
Perhaps the Minister will give some thought to this while I continue to discuss this clause. Paragraph (d) refers to a person who deposits or deals with an object in a manner likely to cause injury to persons. I think it is certain that an element of intent would be involved there and that wilfully’ would necessarily be involved. Otherwise this would be a very dangerous provision. Probably the word ‘wilfully’ ought to be inserted for greater precaution. The Minister may answer that it is intended to be there and impliedly it is there, but it is a bit dangerous in the context of this Bill not to include the word in the clause. I think everyone would concede that this would not be a good law if a person who innocently did something was to be guilty of an offence of this nature. I suggest that the commonsense thing would be to carry through what was thought to be proper in the other clause and insert the word ‘wilfully’.
Someone has asked about the words ‘repulsive object’. There have been suggestions that this could be something which was repulsive in the sense of being annoying. Perhaps this was mentioned half jokingly, but I should appreciate the Minister’s saying something to clarify the matter. I suppose that in this sense ‘repulsive’ is to be given its technical meaning and a repulsive object would be something in the nature of, say, tear gas. Is that what is intended?
– Something like a dead animal, or other things which we all know are used these days by demonstrators.
– This disturbs me. In my innocent approach to the matter, I should have thought, that used with the words ‘destructive’ and ‘noxious’ it would be a reference to something like tear gas which, in the strict meaning, one could say is destructive, noxious and repulsive in the physical sense.
– I think tear gas would come within that provision.
– Yes, but the Minister’s earlier comment rather disturbs me. If the word can be taken to mean something like a dead cat, something that would tend to be annoying, we could be getting into an area of great danger. Where do we draw the line? It could be even a drawing of some kind. This is quite disturbing if it goes further than the kind of things that I had in mind - tear gas or a repulsive kind of thing like that. Any kind of chemical substance which would be covered by the other 2 expressions, destructive and noxious, could probably regarded as repulsive. I was under the impression that the term meant something of that kind, rather than what the Minister has suggested. I should be grateful if the Minister would give some assistance by telling the Committee how this word has been construed in other legislation. Otherwise what has been said might affect our approach to the matter. If it is of the nature that I indicated the provision would be sensible and a wise provision to have, but if it extends into the area suggested by the Minister-
– It could be obscenities on placards.
– If that is so it gives the clause a quite different character from what I had in mind as I approached the matter. I thought that many of the expressions in the clause were rather sensible and that much of the provision was wise, but if it is intended to deal with substances which, in their physical nature, are not repulsive but rather are things to which somebody takes objection, it is a different matter altogether. In this case it would be a clause capable of being construed as referring to an obscenity or indecency, or something else of an offensive nature. That is quite different. Frankly, my approach to it would be to think that that was not meant, but what the Minister has said disturbed me and I would like some explanation.
– Perhaps before we proceed further it would be appropriate if the Minister were to reply to the matters that have been raised by Senator Murphy.
– I sensed when agreeing yesterday to the insertion of the word ‘wilfully’ in clause 6 that it had such a correspondence to a similar provision in clause 7 that the case which was put for having comparable language with regard to comparable offences was quite fair. But when one comes to examine this clause, I do not think the same case for the insertion of the word ‘wilfully’ exists. I think I said yesterday that over the years the word ‘wilfully’ has come to mean doing an act and that there is very little of the common colloquial rendering of the word ‘wilfully’ in the way in which it has been interpreted by the courts. When one talks colloquially about a person doing a wilful act or acting wilfully one implies a degree of exaggerated determination. One implies that a person quite deliberately and, in a sense, with some malice in his determination does an act. I think it is quite clear that that is not the way in which the word is interpreted in the courts these days. It really adds nothing to the provision.
It might be asked: ‘What is the reason for not putting it in if it adds nothing to the provision?’ It appears to me that one might equally ask why, if it is not in, it should be put in, particularly when it might be found - looking especially at clause 10 (1.) (d), which provides that a person who throws, releases, deposits or deals with an object or substance in a manner likely to cause injury to persons or damage to property - that it might have as an intention that a person must deliberately do an act before he is guilty of an offence, whereas I should have thought that the purpose of this provision would have been that, if a person goes into an assembly with one of these objects and, for example, is just throwing it around indiscriminately and carelessly, he ought to be equally subject to an offence in those circumstances.
The second point which was raised by Senator Murphy related to the meaning of the word ‘repulsive’, lt is a. question for the courts to determine - if the matter comes before them - as to what is or is not a repulsive object. I think the point can be well sustained here that the word ‘offensive’ has been deliberately not chosen. The word ‘offensive’ might have given rise to the fear that, if persons carried things which some people objected to them carrying but which on reasonable standards were not capable - or should not be regarded as being capable - of being objected to, this action might be regarded as offensive. The word ‘offensive’ therefore has been avoided. I should have thought that the word ‘repulsive’ probably would cover the tear gas element to which
Senator Murphy referred. I should have thought that it would also cover those things which people regard with such a degree of abhorrence that in normal language one would call them repulsive. I notice that Senator Murphy referred to tear gas or some like thing. It would be very difficult for him readily to pick on something which would come within that category, just as it would be difficult for me to give the complete range. But we do know that there is a tendency, which seems to have been derived in the United States of America, for people to go into these demonstrations carrying obviously repulsive objects, such as a dead animal.
One might ask why a person who is part of an assembly should be allowed to carry a dead animal and why a person should be allowed to throw, release or deposit a destructive, noxious or repulsive object or substance. We know that people carry sacks or bags of blood - whether it be human blood or animal blood - and that they carry bags or collections of human excreta. These things are, in the eyes of some people, legitimate things for use in dissent and demonstration. I should have thought that the matters which I have mentioned would fall within the category of repulsive objects. I think anybody who takes part in one of these demonstrations ought to be aware that if he takes with him something which can be on a reasonable basis classified as a repulsive object he does so at his own peril. I think that the law should indicate that a person should not carry a repulsive object in one of these assemblies. 1 do not think that the law should permit him to use it as he pleases.
I sense that the courts will always have the ability to determine whether, in particular circumstances, conduct is offensive. We know that in this day and age the interpretation which the courts give to the word ‘offensive’ is a far more liberal and broadminded interpretation than was given a few years ago. A few years ago it was an offensive act, in the sense that the word is used, for a person to clamber over King George’s statue in the front of Parliament House, but only within the last 3 or 4 years, in a decision which went on appeal, a judge said that we must have regard to the changing standards of the times and that, whilst it might offend some people’s susceptibility, overall it is not within the meaning of the word ‘offensive’ as it concerns us.
– It was Mr Justice Kerr, was it not?
– It was Mr Justice Kerr. The point is that the courts will apply similar canons of interpretation to the word ‘repulsive’. I think that, because we all have a sense of what is involved in the word ‘repulsive’, one can in that sense believe that the tribunals which may have to pass judgment upon these words would be able to give as good an interpretation as anybody else. The difficulties that Senator Murphy and I have in determining precisely what it means would be difficulties that would apply to any other word which we could use. Accordingly, I believe that when we have that difficulty it is a fair thing to leave it to the courts to determine.
– Is the Minister able to assist with any judicial construction or any references?
– No. I think it is fair to say that one’s perusal of the language of the various provisions in the States does not indicate that this word has been used. For example, the New South Wales provision is that a person shall not throw or discharge any stone or any other missile in or into a public place or school; that he shall not make or light any fire or let off any firework in a public place; and that he shall not discharge a firearm or air gun in or near a street or public place. Those provisions come from either the Summary Offences Act or the Police Offences Act. The Victorian provision refers to the carrying of an offensive weapon or instrument without having first obtained the permission of the local authority; being found armed with an offensive weapon or setting off fireworks in a public place; or throwing or discharging a stone, arrow or other missile to the injury or danger of any person or damage to property. South Australia has a provision making it an offence to discharge any firearm or throw any stone or other missile, without reasonable cause, so as to injure, annoy or frighten or be likely to injure, annoy or frighten any person, or so as to damage or be likely to damage any property. Western Australia has a similar provision. One might say in those circumstances that those provisions are much wider because so many things could be apprehended within them whereas the provision which is contained in Clause 10 is a provision which endeavours, as far as possible, to specify what is involved. I should have thought that the words ‘destructive, noxious or repulsive objects or substances’ would be as specific as one could get. Those words have a ready meaning, differing according to one’s point of view but upon which a court could easily pass judgment at the appropriate time.
– Senator Murphy, could you assist the Chair by indicating what procedure you propose to follow in the context of this clause?
– Yes. I move:
In sub-clause (1.) after ‘assembly’, insert ‘wilfully’.
Having listened to the explanation of the Minister on this matter I indicate that the Opposition, while it is not altogether happy about the use of the word ‘repulsive’, would be content to let the clause go through. However, the Opposition thinks that the word ‘wilfully’ ought to go in. It went in before. There is a double reason now for having it in because the lawyers are going to say that it was deliberately left out here. I admit that a strong argument could be put for saying that there could be circumstances where the element of wilfulness would not be involved. A person may put something on the ground - certainly that would be without lawful excuse - that is likely to cause injury to other persons. Where an action was likely to cause injury to a person, even though that action was innocent in the sense of not intending to do any harm, the person might be guilty of an offence. The Minister says that he does not think that the insertion of that word makes any difference to the clause; we think it does. Since his mind is the same as ours that it would be a proper provision if ‘wilfully’ were inserted, I suggest to him with respect that it should be inserted. As far as we are concerned, if it is inserted, the clause can then pass.
– I think I have indicated my attitude, which I reiterate. The earlier provision was concerned with an indictable offence - an offence in which a person wilfully and without lawful excuse caused actual bodily harm to another person or damage to property to an extent exceeding $200. It was thought that as there was a similar provision where a person in an assembly does an act or thing by way of physical violence or damage to property he is guilty of an offence - the penalty in that case was either $1,000 or 12 months gaol - there was a reasonable case to put in the word wilfully’ because it had applied in the earlier case. I do not see the same comparisons applying in this case. I indicate particularly that when it is an offence which involves throwing, releasing, depositing or dealing with an object it appears that the word ‘wilfully’ might be thought to involve some element which is not intended to be conveyed in that clause.
That the word proposed to be added (Senator Murphy’s amendment) be added
The Committee divided. (The Temporary Chairman - Senator Sir Magnus Cormack)
Majority . . 4
Question so resolved in the negative.
Clause agreed to.
– Is it thewishoftheCommitteetotakethe remainder of the Bill clause by clause?
– Yes. I just want to indicate that although we did not call a division on that clause we are opposed to it. I think we can take the remainder of the Bill clause by clause.
Clause 11 (Additional offences on premises in a Territory).
– Clause 11 is extremely troublesome to the Opposition. I would like the assistance of the Minister on this clause. It reads:
A person who, without reasonable excuse, trespasses on premises. . . .
My understanding of the law is that with some exceptions the position is that trespassing has never been an offence under British law. It used to be said in the old books that the sign that people put up stating that trespassers would be prosecuted, was a living lie, that that was not the law of the land at all. That used to be said of England as well as here. Certain exceptions were introduced of which we are aware. We know that the squatters in Australia had so much power that they had laws introduced covering trespass. In New South Wales, anyway, the Act was entitled the Trespass to Enclosed Lands Act.
– Trespass to Land Act or Trespass to Enclosed Land Act in different States.
– That is right. The purpose of this was to stop people stealing sheep and, as I say, the passing of this Act was a tribute to the power of the squatters which has not altogether disappeared. This has not been an offence - again I would ask for enlightenment by the Minister - because it has been construed to be complete even without intent on the part of the person. If one wanders on to somebody’s property one is trespassing even though one might not be aware of doing it. The Minister might be able to assist me and to correct me if I am wrong on that point, but my recollection of the matters is that an unintentional trespass, shall we say, is still a trespass. Of course, it would be without reasonable excuse. Why, if we have gone through so many trials and tribulations and very serious occasions in the history of the Anglo-Saxon people to obtain justice, should we make this an offence even where it has nothing to do with country properties? Why should we start to extend this right throughout the territory? We know that the Trespass to Enclosed Lands Act has been applied in the city although there was legal disputation about whether it was capable of being applied in the cities if it was intended really to deal with country areas and the problems there. We know that it has been applied not always with success, as the former Attorney-General found when he discovered that his fine home was not really on enclosed land, he having a large and ungated driveway.
But leaving aside problems such as that we come to an area of great difficulty if we are to make trespass itself an offence. Those who are descended from the Irish will be aware of the great problems that they had with landlords evicting people, but at least those people had the opportunity of being served with eviction notices and dealt with in civil courts. I am not sure what the authorities did in Ireland but here the Government will make-
– It is no use appealing to the Irish. All the Irishmen in our Party have left. You had better start talking to the Cornish.
– I do not know what problems the Cornish had with their landlords, but here we will have serious problems. We can envisage this. This is a trespass on any premises in the Territory. It is not restricted.
– Premises are defined. Well, it is anything.
– ‘Premises’ as definedmeansanyland,buildingorpart of a building. This, may I suggest with respect to the Senate, is an extremely important part of this measure. It is a clause which deserves to be a Bill on its own because it is not directed to dealing with public order in certain territories of the Commonwealth; it is a simple proposition of trespass not by an assembly, not by a group of people, not in the course of a demonstration and not in relation to public buildings or protected persons. We are talking about a simple trespass even by one person unassociated with any kind of violence or property damage. This is a provision directed towards dealing with simple trespass, and it is made an offence. The territories referred to include not only the Australian Capital Territory but also the Northern Territory. What is to be the position of those Aboriginals who are on the land which was their land but is now Vestey’s land? What is to happen to them? Are they to be subject to the provisions of this Bill or can the Minister give us an assurance that the provisions of clause 11 (1.) could not be applied so that some Aboriginal on the land which has been taken from him will not only be subject to eviction by the civil courts but can be taken in and repeatedly prosecuted; hailed before a magistrate?
– Your property in Sydney probably belonged to the Aboriginals at one time, too. Why should they not come in and park in your dining room just because you happened to buy it under the white man’s law like Vestey’s did?
– My dining room is here, but I suspect that Vestey’s dining room is overseas.
– But that does not make any difference to the principles of the matter, does it?
– Have you got an answer to the question?
– The answer to it is simple. I can assure the honourable senator that the Aboriginals were never having their meals where my dining room is located because it is situated on the 16th Floor of a building some 160 feet above the ground which is well above I think, where the Aboriginals would eat. Not only may this provision be applied to the Aboriginals, it is also applicable in this Territory. What is the situation of people - the Minister may assist me on this - who are served with a notice to quit which is in order? If it is an effective notice and their tenancy is terminated are they then to be committing an offence if they stay on the premises? Can the Minister assure us that this is incapable of being applied to persons who stay on in premises after a notice to quit has been given so that they are no longer entitled to be there and have been told so?
– You could possibly prevent the fellow with the notice to quit entering the building.
– It is clear that Senator Little has no regard for the position of the Aboriginals as affected by this clause. He thinks it is proper to apply this to them, and also to other persons.
I see this as a very serious matter on which we ought to get the greatest degree of enlightenment from the Minister. 1 ask him to indicate to us the ways in which this can be used and to give us an assurance, if he can, that it is incapable of being used against Aboriginals in the circumstances I have suggested. I would also like to know in what ways this clause might be used against the ordinary citizen in the territories. Will he tell us the necessity for it in the light of all the provisions which exist in regard to assemblies and offensive conduct. The law is cluttered up. There is a morass of legislation to prevent persons indulging in physical violence or damage to property. The Senate has passed a clause relating to the dispersal of assemblies - of which we did not approve - but one would think that the Government had ample provisions in the law to deal with public order. What is the purpose of this provision which is not associated with any suggestion of disorder? There is nothing here about its being related to protection of persons to prevent damage. This is dealing with simple trespass. How does that happen to get into this Bill? What is the purpose of it and what are the limits on which it might be applied?
– Clause 11 (1.) creates the offence, in essence, of being on premises without reasonable excuse. A trespasser is a person who goes upon land which does not belong to him, without any claim of right to do so, without any invitation, express or implied. Quite frequently we see signs bearing the words reading Trespassers will be prosecuted’. We know that they are merely an added warning to people that if they go onto that land they are liable to be taken before the courts. We accept, I think, as one of the rights which attends the privacy of the occupation of our own homes, that people cannot come into our homes unless we invite them in. As far as the territories of the Commonwealth are concerned, to which this Bill applies, it states quite explicitly that a person who trespasses upon another person’s premises shall be guilty of an offence punishable by a fine not exceeding $100 or imprisonment for a term not exceeding one month, or both. There are similar offences to this to be found in the laws of the Australian Capital Territory and South Australia. The penalty for the offence currently in the Australian Capital Territory is $20 or 3 months imprisonment. The penalty for the offence in South Australia is 6 months imprisonment.
Senator Murphy raised a question about the position of aboriginals who trespass on other people’s land. I do not believe there should be any exceptions made for any people in this community. If they break the law they will be dealt with as all people in Australia are dealt with, on a basis of equality, because there are no special groups of people who have special provisions or privileges under the law. I do not believe that the Senate would want the position to be otherwise. I think it should be borne in mind that when there are exceptional circumstances of the character raised by Senator Murphy, such as in relation to Aboriginals in the Northern Territory who believe they have rights from time immemorial to land which is in the occupation of someone else, they may go upon that land and say that they have a right to stay there. In essence they have not a right to stay there in terms of the judgment recently handed down and which currently is the law which applies. But if they do go onto that land, it is always a question for the tribunal which has to determine whether or not they are guilty of an offence, whether in fact they have offended.
I draw the honourable senator’s attention to the expression ‘without reasonable excuse’. A person who without reasonable excuse trespasses on premises in a Territory is guilty of an offence, but not a person who can claim a reasonable excuse. I cannot determine what a court in the Northern Territory might do but at least it leaves open to the court which tries the issue whether or not the excuse or justification put up by the person who would otherwise be a trespasser is a good and valid excuse. I would have thought that one could address an argument of the character of that which Senator Murphy was addressing to this Committee quite suitably to a court on behalf of Aboriginals. I believe that the significant thing to notice is that the expression of exemption is not ‘without lawful excuse’ but ‘without reasonable excuse’ and it has been designedly so drawn to enable people who feel that they have some right and can justify it in some way which has to it a reasonableness, to be able to do so. Senator Murphy also inquired about the history of some of these provisions and said what has been said in other places - something which I think is quite wrong in the Australian context - that trespass never has been a criminal offence.
– There are exceptions.
– I think there is a fairly general pattern in Australia, although probably the honourable senator could justify his position more readily in the United Kingdom. But certainly in Australia it has been a criminal offence for a long time. I do not want to suggest that trespass has not been a criminal offence in Great Britain but there are statutory provisions in Australia which have been the vogue for quite some time. There are 2 classes of offences relating to trespass in Australia. There is the offence which, in the case of the South Australian Police Act, goes back to 1870, of ‘being on land or premises without lawful excuse’. There is also the offence to be found in the Victorian Police Offences Act, at least as far back as 1915, of ‘refusing to leave premises upon being requested to do so by the owner or occupier’.
– That is entirely different from this. Entering is not an offence in this case; the offence is refusing to leave.
– It is a question of what constitutes the trespass. Until the end of last year Victoria was the only State to have a provision of the character I have just mentioned - refusing to leave premises upon being requested to do. so by the owner or occupier. New South Wales now has a similar offence. In Victoria for a long time the provision had simply been that it was an offence not to leave the place after being warned to do so by the owner or a person authorised by or on behalf of the owner. Problems arose, of course, because the person in occupation may not have been the owner and as trespassers really are wrong to a person’s possession the amendment was made to entitle the occupier as well as the owner to require a person to leave and to make it an offence if a person after being so warned did not leave. That provision has been found useful in Victoria in dealing with sit-in demonstrations. Of course the position in New South Wales now is that there is a provision comparable with the Victorian provision. Section 50 of the New South Wales Summary Offences Act 1970 provides that a person who enters or remains in or upon any part of a building or structure or any land occupied or used in connection therewith and has no reasonable cause for doing so is guilty of an offence. Subsection (3.) of the same section provides that without limiting the generality of the expression ‘reasonable cause’ it is not a reasonable cause for a person to remain in a public building if the person is requested to leave.
– Have you anything on the matter I put to you about the eviction notice? If a notice to quit is given, what is the position of a person who is there after the expiry of that notice? Does he come under this provision?
– I would like some notice of that question. I would have thought that in the Australian Capital Territory or the Northern Territory, to which this Bill applies, it would depend upon the provisions of the Landlord and Tenant Act or the other tenure ordinance which governs the relationships of landlord and tenant.
– But it is a very serious question, is it not, if you are turning those people into offenders by the use of clause 1 1?
– I think it is fair for Senator Murphy to be concerned about these aspects because it is in a debate like this that the points which occur to particular senators can be aired for consideration. I cannot answer the question specifically because it does depend on matters to which I have referred. But I think the intention of the draftsman, as conveyed to me, is that for these areas the use of the expression ‘without reasonable excuse’ as distinct from what you might normally find - the expression ‘without lawful excuse’ - is meant to be a covering which does give protection. I believe it would give substantial protection. I would have thought that if a tenant had overstayed a notice to quit he would be in a position, if he did not have other accommodation, to address an argument to the court, if he ever were taken before a court, that that was a reasonable excuse. I know that Senator Murphy would not be prepared to say offhand that that could never be a reasonable excuse. It is in that context that I feel that when the matter is left to the courts to determine they have the ability to say in accordance with standards they have always applied what is or is not a reasonable excuse.
Of course there are other provisions in relation to trespass of a different type from that which is contained in the Victorian law. Unless Senator Murphy desires me to give him details of the position in each State I shall not deal with them. The situation is covered by that type of provision which was contained in the South Australian Police Act 1869-70. The justification for this clause is that the public interest requires that lawful occupants of land and premises should be protected from intrusions upon their peaceful occupation. There is reason to believe that the sanction of the civil law is inadequate to control sitin demonstrations and that some moderate criminal sanction is justified. I think it is wrong to think of a modern phenomenon in terms of situations of many years ago. As this clause demonstrates, the important thing is to be able to protect persons in the peaceable occupation of their premises.
– What is worrying us about this clause is that it does not apply to an assembly of a number of people, lt does not apply to any of the public order situations with which these other clauses deal. This is a simple trespass. It could be by a single person with no element of demonstration, procession or anything like that. That is what is really troubling about this. I can see that the Minister is giving this situation some consideration. Is it not worth thinking about? This is quite a serious step to take.
– It is a serious step and, as I said, it is not without precedent in other parts of Australia. I think it is a serious consequence for the individual in his premises to be subjected to the invasion of his occupation by anybody. It is true that this provision applies only to Commonwealth Territories because it represents the ability of the Commonwealth law to apply in that area. It does not apply to Commonwealth premises. People in Commonwealth Territories - the Northern Territory and the Australian Capital Territory - have an assurance that there will be a criminal sanction against anybody who breaks into their property or disturbs their property in the form of trespass. If there is a breaking and entering in the traditional criminal sense that is dealt with under the general provisions of the criminal law. But it seems to me whether it be as a result of a demonstration, whether it be in pursuit of some real or alleged political purpose or whether it be a person who is just plain disrespectful and unconcerned about the rights of others and who trespasses on a person’s property, this action constitutes a penal offence. It is not a substantial offence. The maximum fine is $100 or an imprisonment for a term not exceeding one month. In the general range of penalties which are prescribed these days that is not a heavy penalty. In conclusion I refer to what the Leader of the Opposition in another place (Mr Whitlam) said earlier this year. I think this indicates in the language he used the type of objective which this provision has in mind. He said:
There can be no doubt that there have been some contemptible and cowardly invasions of Commonwealth premises in Sydney and Melbourne. Nobody would condone those. They should be condemned. The people who participated in those invasions, those threats, those demonstrations, those sit-ins should have been brought to trial.
Appreciating that he was talking about Commonwealth premises, the point I make is that there is an indication that these people ought not to be immune from the processes of the criminal law. There should be some criminal sanction.
– I was surprised that the Minister for Health (Senator Greenwood) who in this chamber represents the Attorney-General (Mr N. H. Bowen) in answering Senator Murphy and in travers ing the various statutory provisions dealing with trespass throughout the country should have missed a provision which is here in his own backyard. I refer to the Police Offences Ordinance of the Australian Capital Territory. Section 24b states:
Any person who is found without lawful excuse (proof of which excuse shall be upon that person) in any building, structure or erection, upon any lands, in or under a vehicle or boat or in any enclosed yard, garden or area, shall be guilty of an offence.
The penalty for that offence is $20 or imprisonment for 3 months. One of the principal counts in the Opposition’s indictment of this Bill has been that it is unnecessary. Surely it would be hard to find any clause in this Bill which is more unnecessary than clause 1 1 (1.) in the light of the existence of this quite wide power - as far as the Australian Capital Territory is concerned - which is contained in section 24b of the Police Offences Ordinance. The only material difference between clause 11 (1.) and the Ordinance which I have cited is that in the clause we are considering the words ‘without reasonable excuse’ but in the Ordinance the words ‘without lawful excuse’ appear. With all respect to the Minister, it is hard to see how the existence of the trespass provision in section 24b of the Police Offences Ordinance does not provide sufficient cover for the acts which presumably this present Bill was designed to deal with. I can anticipate that I will meet with this objection: ‘Well, why do you object to a clause which is more moderate and which provides a smaller penalty than the one in section 24b?’ I do not suppose we need to worry about that very much but the fact remains that section 24b of the Police Offences Ordinance will be available even when (his Bill becomes law.
One of the objections which occur to us is the multiplicity of legal sanctions which are introduced into the law when one has this provision alongside section 24b of the Police Offences Ordinance. For example, who will decide in the case of some youths who have been arrested after a demonstration whether they are to be charged on the basis of clause 11 of the Public Order (Protection of Persons and Property) Bill or section 24b of the Police Offences Ordinance? One could imagine that if some student leader were involved about whom some strong feelings were held by the authorities, it might be felt desirable to give him a sterner lesson than some lesser fry. Resort might be had to section 24b of the Police Offences Ordinance which would enable this offender to be thrown into gaol for 3 months whereas under clause 11 of the present Bill he would be liable to a penalty not exceeding 1 month’s imprisonment. But why do we need both provisions? Why is it necessary to introduce this clause when we already have the section to which I have referred? Perhaps the Minister might be able to throw some light on this question. As I said, I was rather surprised that he did not mention the Police Offences Ordinance after going through the statutes of Australia. I hesitate to think that he did not know of its existence but I would like him to enlighten us, in the light of the existence of this Ordinance, why he needs this clause in the present Bill.
– I would like to add to what Senator James McClelland has mentioned. When the Minister for Health (Senator Greenwood), who in this chamber represents the Attorney-General (Mr N. H. Bowen), is replying will he consider the law as I think it operates in the Australian Capital Territory? In clause 11 is he not replacing one law with another? 1 thought the law in Canberra operated by regulations which were issued under the Seat of Government (Administration) Act. ls there not an early judgment of the High Court which provides that when a regulation which operates in a Territory is subsequently incorporated in an Act by Parliament then that regulation becomes null and void? If that is the true position, will this clause supersede the law which is in existence in the Australian Capital Territory under the Police Offences Ordinance? 1 would like the Minister to give some consideration to this question. We can understand the protection of premises. This Bill has expressed the meaning of ‘premises’. On this occasion, ‘premises’ means any land, building, or part of a building, and the provision refers to a person who, without reasonable excuse, trespasses on any land. One can imagine the extent of the operation of this provision in country areas where much land is unfenced. While much of the land in many areas may be privately owned, it is accepted as land in common inasmuch as there is no fence and it is used by the community. Are we now to prosecute people who have normally used that land and who continue to use it?
– I think the point raised by Senator James McClelland fairly requires an answer. I do recognise - and I said this earlier in response to Senator Murphy - that there was a similar offence in the laws of the Australian Capital Territory to what is proposed by this clause. In the first place, there is a lesser penalty in the sense of a reduced term of imprisonment under the proposal which is now envisaged. Secondly - and I would have thought this was a very substantial change and decidedly one of greater value - in the proposed clause there is an exception for a person who can show that he is on another person’s premises with reasonable excuse, whereas under the law of the Australian Capita] Territory there is no such exempting provision and a person must show that he is there with a lawful excuse. It is far more difficult to establish a lawful excuse than it is to establish a reasonable excuse.
The point is that the Bill we are considering is a comprehensive Bill related to public order, the protection of persons and property. It would be unreasonable to have a Bill that is as comprehensive as this one which does not have a provision of the character contained in clause 11 (1.). It would stand out as a glaring exception. When we consider the balance of the subclauses of clause 11, we find that it is really a comprehensive clause. Sub-clause (2.), for example, creates further offences occurring on premises in a Territory. Paragraph (a) creates an offence of unreasonable obstruction in relation to the passage of persons or vehicles into, out of, or on premises in a Territory. I think it would be unreasonable not to have some penalty for a person who adopts the relatively recent concept, which I understand is part of Indian industrial tactics called gherao, of encircling premises or a property so that access to or egress from those premises is completely denied. I would have thought that a person who engages in that form of unreasonable obstruction in relation to the passage of persons or vehicles into, out of, or on premises should do so recognising that there is a criminal sanction if he engages in that activity. Paragraph (b) of clause 1 1 (2.) creates an offence of disorderly behaviour while trespassing on premises in a Territory, and paragraph (c) creates an offence of refusing to leave premises on being requested to do so. Again, there is the exception for a person who can show that he has a reasonable excuse.
– If you have paragraphs (a) to (c) inclusive, why do you need clause 11 (I-)? Do you not cover all that you need for the purposes of this Bill without going into these difficult areas that we have under clause 11 ( 1.)?
– Well, that argument is different from that raised by Senator James McClelland. He said that there was a quite adequate law existing in the Australian Capital Territory at the moment so why was it necessary to have clause 11 (1.). The argument now being put to me by Senator Murphy, as I understand it, is that what is contained in the other parts of clause 11 does not necessitate clause 11 (1.). I think it does. I think there ought to be an ab initio offence that if a person trespasses on property it is an offence which invites a criminal sanction, and unless a person has a reasonable excuse for being on someone else’s land I think it ought to be envisaged as something inviting penalty. That is part of the mores of our time. If people felt that there ought to be a general freedom to move in and out of people’s property without let or hindrance, I dare say we would not have laws like this. But I believe that the people of Australia believe they ought to have privacy in the area which is their own, and I fail to see why the people of the Australian Capital Territory should not have the same right attaching to them.
I think that envisages what I would say by way of reply to Senator Cavanagh - that premises are defined as meaning any land or any building or any part of a building. I do not believe that whether or not that land or part of a building is vacant is any justication for a person going on it if it does not belong to him. If he feels that he has a reasonable excuse for going on to it, he can plead that reasonable excuse. I think the general proposition is one that is unimpeachable - that a person’s property is as much his own in Australia as an Englishman’s home has reputedly over the years been regarded as his castle. I do not believe that a person, particularly in these times when people are prone to regard that which belongs to others as theirs and when demonstrators will move through into another person’s property, ought not to be subject to some criminal penalty.
– Apart from satisfactorily answering Senator James McClelland, there is one thing that the Minister did not do and that was to answer my question about intent. Does the word ‘trespass’ in this Bill import the notion of intentionally going on someone else’s property, or is it possible to commit this offence without intent? Leaving aside the question of what might come under reasonable excuse’, does ‘trespass’ carry with it the element of intent? My recollection was - and I said I was subject to correction by the Minister - that in the civil law the trespass may be committed without intention, and that a person was liable for at least nominal damages if he went on the premises of another person and there was no element of intent involved in the civil aspect of the matter. I ask the Minister’s guidance as to whether this involves an element of intent.
– One is going deeply into some of the intricacies of the law in the type of question and answer we are now engaging in. However, as I understand the position, the offence of trespassing does not involve as one of its preconditions that there be a specific intent. In short, it does not involve an intent, as I understand the law. As I understand the position, if I were to find myself on another person’s land I would be guilty of a technical trespass. It would not matter that I had not intended to go on the land, and my statement of that would not amount to an exculpation. On the other hand, if I were on another person’s land and held a belief in a state of facts on reasonable grounds, the state of facts proving to be true, that would always be a defence in common law. In short, it is as if you have a genuine belief that you are entitled to be there and you hold that genuine belief on reasonable grounds. In that case you are not guilty of an offence. I say that on the basis that it is a common legal principle that that is the position. Nevertheless, whatever may be the strict legal position, if a person accused of trespassing on another person’s land is able to say that he has a reasonable excuse, that is a complete answer to any allegation. It is not an onerous provision.It simply asserts that a person’s property is his own and he is not to be disturbed there. If any person trespasses on that property without reasonable excuse, it is an offence.
– The Minister has failed to answer a question I asked him previously. Senator James McClelland raised the point that an ordinance of the Australian Capital Territory makes trespassing an offence. I submit that the ordinance has its validity under the Seat of Government (Administration) Act. If the Minister obtains a copy of that Act he will find listed a reference to a High Court case. It was decided that where a regulation or ordinance is superseded by a law of the Parliament, or both are operating, the regulation or ordinance no longer has effect. Therefore the law of the Parliament takes effect. If that is a correct interpretation of the position, not only are we dealing with a question of trespassing in relation to a demonstration but we are also completely replacing a law that exists in the A.C.T. A different penalty is imposed. I do not know whether it is lesser or greater. I do not think anyone has considered the fact that this goes far beyond dealing with assemblies.
– I think the answer to the honourable senator’s question may be found in clause 25 (4.).
-I do not know where the answer is to be found. I do not know the point that Senator Cavanagh is making. Clause 11 of the Crimes Act provides: (1a.) Where an act or omission constitutes an offence against a law of a Territory, the validity of that law is not affected by reason only that the act or omission also constitutes an offence against a law of the Commonwealth.
– If the Minister will look at clause 25 (4.) of the Bill I think he will find that it meets the point raised by Senator Cavanagh.
– I am indebted to Senator Murphy. It is likewise a clause which will not operate to exclude the operation of a law of a State or Territory.
– But you now have 2 laws operating in the A.C.T.
– That is right.
– Two laws dealing with very much the same subject. That is true. I assure the honourable senator that this matter will be looked at with a view to repealing the provision in the ACT ordinance. There is a difference. I would have thought that the existing law is more onerous in its impact, and that there is more opportunity for exculpation in the clause contained in the Bill. However, at present there are 2 laws. I do not believe that that would mean that a person could be tried for one offence under 2 separate laws. There is a long-standing provision that a man cannot be placed, as it were, in double jeopardy. I assure the honourable senator that this will be looked at with a view to considering whether the ordinance should be repealed.
– Having heard the explanation of the Minister I think the Committee should examine this clause carefully. We of the Opposition are in a minority and I respectfully ask that those honourable senators who are not of our Party have a careful look at the clause in the light of all that has been said. This clause is different from the other clauses. It is not concerned with assemblies, processions, protests or anything of that kind. Sub-clause 1 deals simply with trespass. The Minister has agreed that this is not like most of the other offences against the law. The golden thread that runs through the law does not have the element of intent in it. In this clause the word ‘wilfully’ has not been included. It may be an innocent trespass. Unless reasonable excuse is shown it will be an offence. It even covers an innocent trespass by one person.
– Would a peeping Tom be an innocent trespasser?
– No. There are many provisions to deal with that type of thing. There is already a provision in the law of the Australian Capital Territory to which Senator James McClelland referred.
I think it is slightly different because the words in that provision as the honourable senator read it deal with a person who is found on premises, perhaps under a boat, in a house, on land, or in a building or erection, as I recall it. In that context the provision would properly be applicable to deal with a person who is on land but has no business to be there. He may be intending to commit an offence. It is a person who is found, and that is an important part of it, in such areas. In this instance there is no such element.
– Would you consider the words ‘without reasonable excuse’?
– If you want to deal with the proposition I put, at least the word ‘wilfully’ would be included. It is not a wilful trespass at all. We are concerned about processions, or even about industrial matters. Sub-clause (2.) provides:
A person who -
engages in unreasonable obstruction in relation to the passage of persons or vehicles into, out of, or on premises in a Territory, or otherwise in relation to the use of premises in a Territory;
while trespassing on premises in a Territory, behaves in an offensive or disorderly manner;
We see nothing wrong with that provision. We think it ought to be included in the law. Sub-clause (2.) continues:
With the provisions in sub-clause (2.) (a), (b) and (c), surely that is enough without clause 11 (1.). I have asked some questions that the Minister has not been able to answer. He has said enough to indicate that there is some force in my proposition. He cannot assure us that the provision in clause 11 (1.) will not be used even in the case of a tenant who has had notice to quit served on him, and the notice to quit has expired. Is he then a trespasser under this provision? Is he committing an offence so that it can be held not merely that he has trespassed but that he has become a criminal, and in a Territory where the landlord is the Commonwealth?
– But you ask whether or not he has reasonable excuse.
– I do not think it is enough to say that it will be left to a tribunal to decide that in some cases there might be a reasonable excuse. Why should we deal with this kind of question with a Bill that was brought in to deal with public disorder, commotions, riots, tumults and that kind of thing? Why has this been slipped into clause 1 1 (I.)? I suggest, with respect, that honourable senators who are not members of our Party should have a look at Clause 11 (1.). It is of a different character to the rest of the Bill. The Minister has been unable to give an answer whether the law will break down if clause 11 (1.) is taken out of the Bill. He cannot answer the propositions I have put about tenants. I accept that honourable senators who are not members of our Party have said that they will support the Bill. I suggest, with great respect, that once it is passed they will not be able to stop the implementation of any of its clauses. I suggest that they have a good look at the Bill to see whether they should be agreeing to clause 11 (1.) being included in a Bill with which it is really not concerned. The clause deals with matters which may be far removed from what was envisaged and heralded as the purposes of the Bill.
Several courses are open to the Government. It could agree to the deletion of clause 11 (1.). It could add a qualification to this clause to the effect that the clause is not to be used except in relation to matters referred to in other parts of the Bill in relation to assemblies. If that is included my objection is met. The inclusion of the words ‘without reasonable excuse in the course of an assembly’ - which refer to trespass - would meet my objection. Probably that would be the best course open to the Government. It could include some words which say that the Bill has nothing to do with tenants who remain on premises. I think it would be more in conformity with the area which this Bill is intended to cover if a clause stating that this clause was concerned with an assembly, a matter of public order or trespass by numbers of persons or something of this kind, were inserted. That would take it right out of the category of which I am speaking and which I suggested was not covered by the intentions of the Bill. The clause goes far beyond those intentions. I think it is unsafe and dangerous. I suggest that those who may have agreed to support the Bill in principle should consider the deletion of clause 11 (1.)- Unless some satisfactory reason is given why these other clauses cannot cope with any public disorder, it is not a fair proposition to say that, because of the lack of answers from the Minister, it is too dangerous to leave that in the Bill? We will not finish our deliberations of this Bill immediately. Therefore I move:
That the clause be postponed.
I hope that the motion will not be contested.
Senator RAE (Tasmania)5.9) - As both the Leader of the Opposition and the Minister know, it was my intention, when we came to sub-clause (3.). to move a motion to amend that sub-clause. I had proposed to seek that the consideration of that be deferred until after the consideration of clause 23 because the amendment is of a consequential nature. The real discussion will be on clause 23 and not on clause 11. Therefore I do not wish the deferment of clause 11 to inhibit in any way the moving of my motion. Unless I have misunderstood the Standing Orders. I think it could.
– I think we could agree that the postponement of this clause would not prejudice your rights to move a motion.
– I thank the honourable senator.
– Is that understood?
– I merely wished to raise the matter.
–Clause 11 is designed to cope with sit-ins. That is the purpose of the clause. It is proper that the clause should have a comprehensive provision as to trespass. I think there is a lot of paradox in what Senator Murphy said. It is true that an existing provision in the Australian Capital Territory Ordinance makes it an offence for a person to trespass on another person’s property without lawful excuse. Clause 11 deals more comprehensively with the law in relation to trespass. It says that it shall be an offence for a person to trespass on another person’s property without reasonable excuse. There is no quibble that what is involved in this clause is a more reasonable proposition. The proposition is not as severe as the present provision. I have said that consideration will be given as to whether the existing provision contained in the Ordinance should be repealed. It does seem strange, in the light of the argument which Senator Murphy raised to justify his proposition, that he should be arguing for the retention of a severe proposition in preference to one which mitigates.
– Because I think the present proposition is probably restricted to the person coming in. The term ‘being found’ puts a special meaning on it. Unless I am wrong in my understanding of the law, on occasions it has been construed that ‘being found’ alters the character of the rest of the provision.
– I cannot say whether Senator Murphy is right or wrong. From reading the clause in the Australian Capital Territory Ordinance, my impression is that he is wrong. If his interpretation is correct, and if it has that limited meaning, that is an added reason why a more comprehensive provision should be enacted. 1 understood that Senator Murphy’s main plea in his final comments related to the position of the person who, having been a tenant, is given notice to quit and who remains on the premises after the notice to quit has expired. I would have thought that that person, under the new clause, if he is a trespasser, would be able to raise the argument that he had a reasonable excuse for remaining there because he had nowhere else to go. Under the existing provision in the Ordinance, he must have a lawful excuse for being on the premises. No matter how much one might say that the law should be humane, having nowhere to go has never been a lawful excuse.
Question resolved in the affirmative.
Clause 1 2- -(Additional offences on Commonwealth property).
– I think this clause raises somewhat the same problems as the previous clause. The same matter is involved. Therefore, I move:
That the clause be postponed.
Question resolved in the affirmative.
Clauses 13 to 16 - by leave - agreed to.
Clause 17 - (Dispersal of certain assemblies).
– We oppose this clause on the ground on which we opposed clause 8. It will not be necessary for us to repeat the arguments which were put in relation to clause 8. We rely upon those arguments and I trust that the Minister will not condemn us for not putting them in extenso on this clause. I simply say that we rely on what we put in regard to clause 8. However, there is an extra element in this.
– How did you fare with clause 8?
– We lost. In placitum (a) of sub-clause (1.) we find an additional offence against clauses 18 or 20 of the Bill. There is some problem about that because the clause provides that the assembly can be dispersed if the police sergeant, or police officer of higher rank, has a reasonable apprehension that the assembly will be carried on in a manner involving an offence against clauses 18 or 20. Those clauses not onlly cover assaults, obstructions and so forth, but extend also to insulting behaviour. The limits on these provisions are so elastic that it is a very dangerous proposition. An assembly can be dispersed and the persons subjected to arrests and indeed to thuggery, as we mentioned before, by other persons there who may wish to deal with the assembly, because there ls a reasonable apprehension by the police sergeant that it might involve someone insulting a protected person. That seems to us to be going a very long way. It is not required that the assembly should assault the protected person; it is enough that the police sergeant thinks it might insult a protected person.
Here is the right of peaceable assembly and free speech, but at the say so of a police sergeant the assembly, which has done nothing wrong, which has not involved itself in any violence to any person or damage to property, has not given any indication that anyone is going to be assaulted or harassed, may be dispersed merely because someone thinks it might behave in an insulting manner towards a protected person. I come then to the provission to which Senator Wheeldon addressed himself especially, that is, sub-clause (4.).
– Not effectively though.
– Not only especially but also most effectively. I thank Senator Gair for prompting me. One sees from sub-clause (4.) that although a direction has not been given, persons can interrupt an assembly and use physical, violence - the thugs can come along - if they say that the assembly is being carried on in a manner involving such unlawful violence or damage, or such offences. These are offences against clauses 18 or 20. Because it is not always easy to interpret these things and because the Minister has his advisers present, I ask him whether we interpret this by starting with sub-clause (1.) and saying that under placitum (b) the assembly is being carried on in a manner involving such unlawful violence or damage, or such offences, and then we turn over to clause 18 to find that such offences include behaving in an insulting manner. Is that right?
– When we come down to sub-clause (4.) of clause 17 we find that for the purpose of dispersing an assembly or suppressing an assembly - this is the assembly referred to earlier as being carried on in a manner involving merely an insult to some protected person - it becomes lawful, whether or not a direction has been given under this provision, for any person to use force to disperse that assembly. Is that not an open invitation to the thugs? What about cases where there is merely some insult - not violence, not offence, not threat, not harrassing, not obstruction, but simply insult? Senator Wheeldon suggests that 1 may be wrong in my interpretation, but I shall be indebted to him if he can show me that I am wrong. Perhaps the Chair will excuse me for a moment while I discuss the matter privately with Senator Wheeldon. I would hate to mislead the Committee.
Having discussed the matter with him I must say that his advice is not acceptable to me. Notwithstanding the full benefit of his advice and the assistance I have received from him, I have become even more convinced that I am correct. Does the Minister follow what I am putting? I think this is quite important.
– Perhaps the honourable senator would ask the Minister whether he would clarify what ‘or such offences’ means in 17 (1.) (b).
– I thought I had clarified this already. The words ‘or such offences’ in that placitum surely must relate back to offences against clauses 18 or 20. I should like the Minister to state whether that is right. One would think that there could be no other construction. If this interpretation is right it means that an assembly at which there is no violence, no damage to property but merely the carrying of placards saying that the persons concerned are against whoever the protected person is - perhaps telling the protected person or some consul to go home - would come within the provision. The assembly may be perfectly peaceful and all that those involved want to do is to carry these placards - not to do any violence or damage. In that event it would be lawful for a thug or any person - not necessarily a police constable, or even a person acting at the request of a police constable - to use such force as he believes on reasonable grounds to be necessary for the purpose of dispersing the assembly, and is reasonably proportioned to the danger which he believes, on reasonable grounds, is to be apprehended from the continuance of the assembly.
Consider this in the context with which we are familiar: There are thugs of the Nazi Party who will seize every opportunity available to them. Is this not an open invitation for these people to move in? The only hope open to persons in the assembly would be that somebody was able to say that the thugs should not have apprehended the danger from the continuance of the assembly. After the thugs have whaled in and started to push people, to disperse them and prevent them from doing things, there will be civil commotion and riots - the very things that we should not have. Could clause 4 be invoked in the case of persons in an assembly who, in the absence of violence, are merely carrying a placard or something which can be construed to be insulting, and violence is used against the assembly?
– I am fully aligned to the points ‘ that Senator Murphy has raised. I think that he is possibly stressing unnecessarily the rights of a person to come in and assist in the dispersal of an assembly because the ability of that person to move in is conditioned, by what he can do. He can only take such action as is reasonably proportioned to the danger which he believes is to be apprehended from the continuance of the assembly. I should think that the only thing which would happen in the example which Senator Murphy has given is that a few insults would be cast upon a diplomat, which is very much to be deplored from an international viewpoint, but is unlikely to give rise to danger. I intend to move that the consideration of this clause be postponed until after consideration of the other clauses which have been- postponed in order to enable me to give consideration to the points which have been raised. .
– I should like briefly to speak on this clause before further consideration of it is adjourned. I am still somewhat vague about it. Perhaps the Minister could clarify for me what happened during the drafting of this clause. Sub-section (1.) (b) refers to the assembly being carried on in a manner involving unlawful violence or damage. It goes on to refer to ‘or such offences’. Could the Minister inform me whether the expression ‘or such offences’ applies to the unlawful violence or damage or whether it refers to the offences specified in sub-section (1.) (a). This provision seems to me to be an ambiguous piece of drafting.
– The comma covers it.
– I do not know whether the comma does quite cover it. In any event, I hope the Minister will clarify the matter for me.
– If Senator Wheeldon looks back at clause 8 I think he will find the answer to his question. Clause 8 refers only to unlawful damage or violence. There is no reference in it to ‘or such offences’. The reference in clause 17 to offences against sections 18 or 20 of the principal Act includes, at the end of sub-clause (1.) (b), ‘or such offences’, which I think makes it crystal clear that such offences were the offences against sections 18 and 20 of the principal Act.
Motion (by Senator Greenwood) agreed to:
That further consideration of this clause be postponed until after consideration of the clauses already postponed.
Clause 1 8 (Obstruction, assault, etc.)
– Clause 18 of the Bill seems to create some problems because k relates back. I do not know whether at the resolution of what is endeavoured to be done the Minister will prefer to deal m some way with clause 18 or whether it oUght to be allowed to go through. Frankly, I am disturbed about clause 18 because the expression ‘insulting manner in it ls se elastic that it is dangerous. The Opposition does not think that diplomats should be subjected to harassment and it certainly does not think that they should be assaulted and knocked about or interferred with. These people come here as officers of their own country. They have a duty to be here. They ought not to be subjected to any kind of violence or damage to their property and so forth. At the same time, as representatives of their own countries they have been - not just in modern times but, I think, at all times - the focus of objections which people want to raise against, for example, the conduct of their countries.
I think it will be found in all countries that people who want to protest against the actions of a particular country will seek to do so at the official residence of that country. It is only natural that those people who want to protest against the actions of a country will go to its embassy or consulate. According to my own observations of protests these protesters generally do not do anything personal against the representatives; it is against their country. The reason why demonstrators go to these official residences is that it is the address of the country against which they wish to protest. The Opposition is concerned about the fact that the expression ‘insulting manner’ is an elastic and dangerous expression.
– How would the Leader of the Opposition define the word insulting’?
– That is a difficult question. It could be used in a proper case - one that we would all agree with - and it could be used in a case with which we do not all agree. For example, it could be used to prevent the exercising of free speech. This is a difficulty with that word. The word ‘offensive’ has a reasonable enough meaning in law. We have been given the assistance of the judgment to which the Minister referred of Mr Justice Kerr on the word ‘offensive*. We know what the word ‘threatening’ means, but the word ‘insulting’ is a very elastic one. The Opposition is most unhappy about it being included in the legislation in this form. I suppose it is useless for me to ask for any kind of an assurance in regard to this provision.
May I say that by allowing such an elastic provision to be introduced into the law I think the Government will get itself into the difficulty where it will not be able to prosecute or it is going to have people putting it in a difficult position, such as the 5 women who went to Fairlea prison. I think the whole community objected to their going to prison, but it was an example of the kind of things that can be lawfully done to people. The trouble is the Government is introducing laws which it thinks will work because it says that no magistrate will be silly enough to convict people and no police officers will be foolish enough to prosecute people and no AttorneyGeneral will be stupid enough as to allow prosecutions where there will be convictions recorded that ought not to be recorded. The Government is making laws under which people can be convicted under circumstances in which none of us would want them to be convicted. The law is going to be mitigated by the refusal of the people to be pushed around. I suppose that is the best that can be said about it. The Government has chosen a bad expression. I do not think the word ‘insulting’ is necessary. Surely the words ‘offensive’ and threatening’ are enough to meet the Government’s wishes. I ask the Minister to tell us what will be achieved by inclusion in this provision of the elastic word ‘insulting’. Why does the Government need it in this provision? How does it go further than the words ‘offensive’ and ‘threatening’. The provision already provides for harassing and behaving in an offensive and threatening manner. Why is it necessary to include this word ‘insulting’ too?
– A number of things might be said in response to what Senator Murphy had to say. It should be recognised that this clause does introduce certain aspects that are not to be found in the present law. It makes it an offence for a person to harass a diplomatic person or unreasonably to interfere with the safe discharge of his duties. It is also an offence to threaten or to insult a protected person or unreasonably to obstruct such a person. Protected persons, of course, are defined as being the group of diplomatic officials set out in the definitions clause. The penalty for conviction of such an offence is $250 or 3 months imprisonment or both. Instances have occurred in recent years in which diplomats have been insulted and harassed. It is thought that a criminal sanction is justified for this sort of behaviour. It is necessary in order to comply with Australia’s international obligations. That is generally what the clause does.
I think the main concern of Senator Murphy has been directed towards the use of the expression ‘insulting’. It must not be thought that ‘insulting’ is an expression which has not been used in many statutes in the past or that it is not to be found in a number of statutes at the present time. For example, the words ‘an offensive insulting manner’ appear in the Summary Offences Act of New South Wales, the Summary Offences Act of Victoria, the Vagrants, Gaming and Other Offences Act of Queensland and in the Police Offences Ordinance of the Australian Capital Territory. ‘Insulting words’ is an expression which is found in the Police Offences Act of Tasmania, and those words are also to be found in enactments in Victoria, Queensland and the Australian Capital Territory. For example, to give just one of the sections in which it appears, section 7 of the Summary Offences Act of New South Wales makes it an offence for a person to behave in a riotous, indecent, offensive, threatening or insulting manner in or within view from a public place. Section 17 of the Summary Offences Act of Victoria makes it an offence for a person to use profane, indecent or obscene language or threatening, abusive or insulting words, or behave in a riotous, indecent, or offensive or insulting manner in a public place.
I would have thought that the use of the expressions ‘in an insulting manner’ and insulting words’ are indications that this is an offence which has long been part of our law. .1 would have thought that the general pattern these days is that those words are not often the occasion of offences which are tried in the courts, but one does come across them from time to time. It is an offence - I think we have all seen example of it - to use insulting words to a member of the police force. I think it is not unreasonable that the police should be protected from the repetition publicly made of insulting words. Such is the role that the police force plays that it should be a criminal offence to use insulting words to a policeman. That is one example of a situation in which it is reasonable to retain that offence.
When dealing with diplomatic personnel we have 2 obligations. One is the strict international obligation and the other is the sense of what is fair to those people who come to Australia as the representatives of another country. The Committee will be aware of the Diplomatic Privileges and Immunites Act which was passed in 1967 whereby the provisions of the Vienna Convention on Diplomatic Relations were applied and made law in Australia. Article 29 of that Convention contains this provision:
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
What is an appropriate step to prevent any such attack is a moot point. I would have thought that it is a reasonable thing to say, as this clause does say, that a person who behaves in an offensive, threatening or insulting manner towards a diplomat shall be guilty of an offence. I would have thought that the use of those expressions is consistent with the obligation under the international convention which we have assumed. But quite apart from what might be the strict obligation under the international convention, I think it is at least reasonable for us to say that people shall observe the proprieties in regard to international persons who come to Australia. I do not think that it is an unreasonable provision to put into this Bill that anyone who behaves in an offensive, threatening or insulting manner towards a diplomat shall be guilty of an offence.
I think that Senator Murphy should reflect upon what he has said in the light of the international obligations. Quite apart from substantial arguments I think it would be unreasonable, the expression having been used in the Bill and it being only a matter of mild judgment whether or not it should not be used, that the Opposition should now seek to have it withdrawn. I do not think it would want to, and I think the clause as it stands is, in all the circumstances, a reasonable clause.
– I am afraid I am not satisfied by what the Minister for Health (Senator Greenwood) has said insofar as I can see no explanation for the inclusion of the word ‘insulting’ in addition to the words ‘offensive’ or ‘threatening’. I cannot see what is added in the terms of our international obligations or our obligations to protect the -persons of the representatives of foreign powers or international agencies by using the word ‘insulting’ in addition to the word ‘offensive’. The Minister would be well aware that what is or is not defamatory or insulting can depend upon the circumstances. There was one quite notable defamation action in Britain in which a prominent trade union official obtained damages from a newspaper which had accused him of being anti-socialist. He regarded this as insulting and defamatory, and the court held that it was insulting and defamatory in view of the position which he occupied within the British Labour Party and the trade union movement.
It would seem to me to be a perfectly reasonable judgment that if somebody sets himself up to be something, to subscribe to a particular doctrine, and then somebody else says that he does not, that he holds another doctrine, he would regard this as being an insulting thing to say about him. I can well imagine that the persons to whom these remarks were directed would regard them as being insulting. If, for example, someone were to say that the Soviet Ambassador were a revisionist I think that he would regard this as an insulting statement to make about him. I think that the South African Ambassador may regard it as an insulting statement to make about him if it were said that he was the representative of a racist oppressive regime. He may well find that to be an insulting statement because it may well be that he does not believe that he is a racist or a supporter of an oppressive regime. It seems to me that this is one of the problems which is quite serious here and which inhibits not freedom of assembly, as has been inhibited by so many other clauses in this Bill, but freedom of speech.
Order! Senator Wheeldon.
– I shall wait until the Minister’s adviser has finished his speech.
– Order! Senator Wheeldon.
– There is not much point in talking to myself. I am addressing my questions to the Minister. If he is talking to somebody else there is not much point in my proceeding.
– The honourable senator should direct his remarks to the Chair.
– Yes, I was directing my remarks to the Chair. I directed my remarks to you entirely.
– If you direct your remarks to the Chair we will get on all right.
– I thought I did. If you feel that I was addressing my remarks to someone else I apologise, but I thought I was directing my remarks to you. It has become a habit - I think quite a desirable habit - that diplomatic representatives of various countries take part in symposia, in seminars, in debates of various kinds throughout Australia. I can well imagine that if, for example, the Soviet Ambassador or the United States Ambassador - either of them as it happens - were involved in-
– Order! Senator Wheeldon.
– I am just waiting.
– The honourable senator can direct his remarks to the Chair. The Minister is not obliged to-
– In that case, there is no point in my continuing. If the Minister would prefer to confer with his draftsman I certainly do not intend to waste my time in talking into air.
– The terms ‘insulting behaviour’ and ‘insulting words’ are expressions which have received some definition over the years. ‘Insulting behaviour’, which is fairly close to ‘insulting manner’, has been denned in the. High Court as meaning: to assail with offensively dishonouring or contemptuous speech or action; to treat with scornful abuse, or offensive disrespect; to offer indignity to; to affront; to outrage.
It is a very fine distinction, I suppose, between ‘offensive’ and ‘insulting’. But offensive’ does envisage, dr may envisage in certain cases, the idea of what are public standards; whereas a person can behave in an insulting manner which, is relatively private and does not bring in any sense of public offence. But as I suggested earlier, the fact that the language is there and we have an international obligation is probably as prudent a reason as one can advance for maintaining those 3 words. I regret that Senator Wheeldon felt affronted. I assure him that I was listening to what he said even though I was taking in what was being sought by me from my advisers.
Clause agreed to.
Clauses 19 and 20 - by leave - taken together.
– We repeat our earlier remarks on a clause similar to clause 19. I should express the view that I think the community is reaching the stage where it will be considered that no 1 person should be deciding the guilt of another, which guilt may result in the person being sent to gaol. I think the view is being expressed that if we are to have persons tried by magistrates for offences which might involve a term of imprisonment then it should be done by more than 1 magistrate. There should be a bench of magistrates. In many parts of Great Britain - certainly in the local areas - there is a group of justices which hears cases. We in our own community, should be able to provide a bench of justices or magistrates in cases where persons are liable to be sent to gaol.
– You mean where you have qualified magistrates and not just unqualified justices of -the peace? I just want to be clear as to which you meant.
– Yes. We will not be moving an amendment to this clause, but I think this idea may go somewhat towards meeting the proposition which has been put forward by the’ Minister about offences involving a few months imprisonment in that if these people are not tried by a jury, then there should be at least a trial by a multiple bench and not by a single person because we cannot always rely on the good sense of persons on the bench. I think a feeling against this practice is arising.
– Is that not what the appeal provisions - are really intended to do? I am not aware that there is really a welling feeling within’ the community that there should be a multiplicity of magistrates. “ - ‘
– You will find there is a welling feeling within this place. What Senator Rae is suggesting, is that there are appeal provisions. That remark, if I may say with respect, is a typical remark coming from a lawyer; and I am one. I do not say this in any disrespect to the profession but there is a tendency to’ think of these matters as if they do not involve economic consequences. It is not easy for people to appeal. If it is to be done effectively it involves a lot of money. The suggestion is that the State should provide initially that there be a hearing at which a number of persons will decide on a question which might result in another person being sent to gaol. At least this would help to mitigate some of the consequences of laws such as the one we are discussing and others. I think concern is being felt by a growing number of persons in this place about the state of the law which permits one person to decide these questions.
– I think you acknowledged my interest in legal aid apropos your remarks about the cost.
– Of course I do, and I did not mean the remark disrespectfully when I mentioned lawyers because I believe we think automatically of the legal previsions without thinking of the economic consequences of those provisions. If we have legal aid that may transform the position, but at present it is not enough to say that some kind of appeal is available. I do not want to repeat the matters that we referred to before. We have made our points when speaking on the other clauses. Clause 20 also deals with trespass. The other points that have been made still stand although mitigated in regard to trespass because it is trespass on protected premises such as the premises of diplomats and so on. We cas understand that that is not the same kind of case as that which was dealt with at large.
Clauses agreed to.
Clause 21 (evidence)
– Clause 21 had some sort of an airing yesterday because 1 suggested that it shonld be considered in association with clause 5. In the debate yesterday the Government spokesman denied that there is a threat in this Bill to innocent people who happen to get caught up innocently in an assembly. I was objecting to the effect which these sections taken together have of making a person’s mere presence, even if it is fortuitous, at a certain place someting which puts him in jeopardy. It was pointed out to me correctly - in fact, I conceded it in my remarks - that these are purely evidentiary sections; that a charge of taking part in an illegal assembly can be rebutted by evidence by the person charged that he was not in fact taking part in the assembly. I pointed out that this is not how it happens in real life, and that in practice a citizen finding himself in this position finds himself carrying a very difficult onus. That view is supported by what happened over the past few days in Washington in the great demonstrations which occurred there. If honourable senators will bear with me I would like to refer briefly to a report which appears in this morning’s ‘Canberra Times’. It was written by a correspondent of the Washington ‘Star’. I will read only small sections of it to make my point. The article is as follows: 1 spent 20 hours Monday as a guest of the
District of Columbia Government, and they charged me 50c an hour for the privilege.
I was arrested at the height of Monday’s thrashing and blockading in Georgetown, I was not told I was arrested until hours later. I was an observer. I committed no crime.
The correspondent refers also to a lawyer who was arrested with him. The article continues:
The lawyer was there because he, and apparently a substantial number of others like him, including me, had been in the wrong place at the wrong time.
A little further on in the article he says:
I was arrested for nothing at all. In fact, I wasn’t eventold I was arrested until I was being booked.
The article continues in that vein. That happened in the United States, of course, but surely it would not be suggested that the same thing could not happen here. In fact, I suggest that it has happened here. I know of cases of it having happened here. It will be claimed, and this was said iti response to what I said yesterday that the citizen finding himself in that situation merely has to give evidence that he was not taking part in the unlawful assembly. But surely it is not a matter of no concern at all that that citizen, even if acquitted, has been put to the inconvenience of being taken away, fingerprinted, charged and detained. That is a gross interference with his daily life even if in the event he finally manages to get acquitted. I suggest that the onus which is cast on a man who may be quite innocently and fortuitously caught up in a demonstration, as provided by clause 21, is an unreasonable imposition on citizens.
– The point which Senator James McClelland is making is one which cannot fairly be made after an examination of the provisions of clause 21. Subsection (1.) of that clause states:
In proceedings arising out of this Part, evidence that persons taking part in an assembly were at a place in the vicinity of protected premises, or were at a place at which, or in the vicinity of which, a protected person was present, is evidence that those persons were at that place by reason of the fact that it was in the vicinity of the protected premises, or by reason of the fact that the protected person was present at or in the vicinity of that place, as the case may be.
– Could they not have been there innocently?
– That is the whole point that it is designed to clarify.
I am grateful to Senator Toohey for the interjection. This clause makes an evidentiary provision. Its effect is that evidence that an assembly was at a place in the vicinity of the protected premises or of a protected person is evidence that the assembly was there because of that fact. So if there happens to be a demonstration occurring within, say, 100 yards of the South African Embassy, a statement may be made that the demonstration was being held just because it was close to the South African Embassy. It is important to note that that evidence is not conclusive of the fact; it is simply evidence. I will use the example I used yesterday. If a person says that that was not the reason why the demonstration was being held at all, that person can state the real reason. That is the whole purpose of this provision. Why a demonstration is being held and why a person happens to be present in that demonstration is something peculiarly within that person’s knowledge. If you have the objective fact that obviously there must be some connection between the physical proximity of the demonstration and the embassy or the diplomat’s home, it is up to that person to say why. I do not know what Senator Toohey is objecting to. If an innocent person is able to say:I was not at the demonstration for any reason connected with harassment or any reason at all concerned with the embassy’, why cannot he say so?
– Do you suggest it is quite possible for a person to get caught up in a demonstration without knowing it?
– Now Senator Toohey is changing ground.
– I am not changing ground at all.
– I might deal firstly with the proposition I was putting and come back to the proposition put by Senator Toohey. I was putting a proposition relating to clause 21 of this Bill. In the present context of what we are considering it would not be difficult for those organising an assembly in the vicinity of protected premises, or of a protected person, to give evidence of the fact - if it is a fact - that the proximity was a mere accident. If it was shown that the nature of the matters with which the assembly was concerned had no connection with the policies or the activities of the foreign government concerned, this in itself, 1 think, would conclude the matter. If the nature of the matter with which the assembly was concerned did have such a connection, evidence could be given of some reason for choosing the location or that those organising the assembly were ignorant of the proximity of the protected premises or person. But whatever be the fact the clause is merely designed to establish this relationship between the assembly and the premises, if anyone is to be convicted arising out of any incident at all the prosecution must still prove that the person was a member of that assembly and was there with a part of the common purpose. So many people are in the position that they can say what they like and no-one can dispute it.
Sitting suspended from 6 to 8 p.m.
General Business taking precedence over Government Business after 8 p.m.
Motion (by Senator Sir Kenneth Anderson) agreed to:
That general business notice of motion No. 3 be considered before notices of motion Nos 1 and 2.
– I move:
Believing that the decision as to the site of the new and permanent Parliament House is and remains the responsibility of those members of the Senate and the House of Representatives who constitute the Parlia ment of the Commonwealth;
Recommends that a joint sitting of the two Houses or other form of general conference be convened to express, by resolution, the point of view of the assembled members of the Parliament as between Capita] Hill and the Camp Hill area;
Recommends further for the consideration of the House of Representatives -
Invites Members of the House of Representatives to join with Senators in the Senate Chamber or such other place as may be determined by Mr President and Mr Speaker for the purpose of the joint meeting;
And further invites the House of Representatives to suggest any alternative to or modification of the Senate’s proposal, with a view to the convening of a joint meeting of members of the Senate and the House of Representatives to determine finally the question where the new and permanent Parliament House be situated.
I ask the Senate to agree to the motion because it makes no decision as to where the site should be. Indeed, it suggests that there should be a vote on the matter. This is a perfectly democratic procedure and I commend it to the Senate.
(8.2) - As Senator Murphy has said it is true that this is a recommendation. I do not agree with it but since he has not stated a case I will not state a case either. I suggest that we put the matter to a vote.
Question resolved in the affirmative.
Motion (By Senator Sir Kenneth Anderson) agreed to:
That further consideration of general business be postponed until after further consideration of Government business.
Consideration resumed (vide page 1516).
– Clause 21 is an evidentiary clause. Senator James McClelland has addressed himself to these evidentiary provisions. The Opposition does not agree with sub-clause (1.). That sub-clause provides: (1.) In proceedings arising out of this Parliament, evidence that persons taking part in an assembly were at a place in the vicinity of protected premises, or were at a place at which, or in the vicinity of which, a protected person was present, is evidence that those persons were at that place by reason of the fact that it was in the vicinity of the protected premises, or by reason of the fact that the protected person was present at or in the vicinity of that place, as the case may be.
This is a criminal Bill. The provisions deal with the rights of persons who might be subjected to imprisonment. We do not think that this kind of provision should be in the Bill because ‘vicinity’ is a difficult enough concept in itself. To have this evidentiary provision displacing the necessity for strict proof is something which does not commend itself to us. Therefore we oppose the first part of this clause. May we have this dealt with separately, Mr Chairman?
– I agree. I think we should have a vote on the matter if the honourable senator wants to put it to a vote.
– What is the position in regard to the first part of clause 21?
– We are opposing it.
– Yes, but is it a clause which is going to be reconsidered?
– No. I suggest we put the matter to a vote.
– No. A number of other clauses are being reconsidered.
– Before this clause is put to a vote I shall make a brief comment on it. It will be recalled that before the suspension of the sitting for dinner I interjected to the Minister for Health (Senator Greenwood) who in this chamber represents the Attorney- General (Mr N. H. Bowen) and who was then in charge of the Bill. I asked about the position of an innocent person who was caught up in an assembly in respect of this clause. Senator Greenwood did not give what I consider was a satisfactory explanation as to what would be the case in such circumstances. It is my contention that it would be quite possible for a person who had no connection whatever with the assembly to be caught up with it in some way or other quite innocently because he happened to be in the vicinity at the time. If that happens he is caught in the net of the circumstances which are set out in clause 21 (1.). For that reason I think that sub-clause ought to be opposed and not only by honourable senators on the Opposition side of the chamber. It ought to be opposed by honourable senators generally. It is my belief that this sub-clause does not fully protect a person who could quite innocently get caught up in these circumhappen because there have been such stances. Do not let us say that it could not instances galore hire and overseas.
– Senator James McClelland read something of’ that out of a report.
– Exactly. Quite recently there have been instances galore in Australia and overseas where people who had no connection whatever with the assembly and who did not want to take any part in it quite easily became caught in the net because they happened to be, in an unfortunate sense,in the vicinity of the assembly at the time. This situation is provided for in clause 21 (1.). I shall take an extreme example. Perhaps a person could be under the influence of liquor and as a result of this could inadvertently wander into such a situation. Without doubt such a person would find himself in a position from which it would be very difficult to extricate himself. I think it is a matter of simple logic that we should have another look at this proposition and ask whether some provision should be made for people who find themselves in circumstances which Senator James McClelland has mentioned. I support his remarks.
– At the moment I cannot understand the basis of concern. I have listened throughout the whole of this debate to the propositions which have been put by honourable senators opposite. I have attempted to understand them but at the moment I am not entirely clear and I would like either Senator Murphy or Senator Toohey to make the situation as to the objection to clause 21 (1.) clearer. The objection, as I understand it, is that this in some way presents circumstances which are dangerous to the interests of a person who inad vertently is caught in a situation. I do not understand why that should be so on a proper interpretation of clause 21 (1.). I heard Senator James McClelland’s statement that one could be walking down such and such a street in Double Bay on one’s way to the shop to buy whatever it was that one was thinking of buying. The Yugoslav Embassy is somewhere near. One could find oneself in the vicinity of the Yugoslav Embassy and because of that one could come within this evidentiary provision.
Earlier this evening the Minister in charge of the Bill, Senator Greenwood, referred to this clause as an evidentiary clause. It is not a section constituting an offence but it is simply one which assists in some way in proving, prima facie only, certain of the facts which it would be necessary to prove. It assists in the question of proof and does not in any way govern the question of proof. I simply ask whether either Senator Murphy or Senator Toohey would elaborate their argument again. What is their objection to clause 21 (1.)? Why do they believe that this clause constitutes the danger which they say it does? I can well appreciate that Senator James McClelland or anybody else would be concerned that an innocent person could be caught up in a situation from which he could not extricate himself. Even when it came to court proceedings he could not prove himself not to have been in any way concerned with the demonstration or the unlawful assembly but, rather, that he was on his way shopping. It is just that nexus which, so far as I am concerned, in the speeches I have heard so far is entirely missing, and I would appreciate it if this point could be made clear.
– I will do my best to answer the question that Senator Rae has asked. You may have a person who has got caught up in an assembly. He may have been unwittingly swept up into the assembly. Then there might be another person who says: ‘Here is an assembly that is protesting about apartheid, or something of that nature, and he may say: ‘Well, I agree with that, and I will go along with it, too.’ He may not have realised for a start that it is in the vicinity of some protected premises. Those people might be just there protesting about what is happening in South Africa, and they might invite that person to join them, so he does so. He is joining that assembly because he objects to apartheid. He does not realise that because of clause 21 the Government will say to that person: ‘Because you were taking part in an assembly which was at a place in the vicinity of protected premises or at a place .at which or in the vicinity of which a protected person was present it is evidence that you were there and at that place by reason of the fact that it was in the vicinity of a protected person.’ That person may not have realised that the embassy was nearby or that the protected person’ was there. He may just have seen the banners in the streets and the people in the assembly, like . the Salvation Army, may have said: ‘Come and join us’: And he might have thought: That is right, I agree with them’. Then the authorities could come along and say: ‘Ah, clause 21! Although you were there, only to say that you were against apartheid, because you were in the vicinity of the protected premises or protected persons, that is evidence that that is the reason you were there.’ The man may be perfectly innocent of this, but we see evidentiary provisions being brought in constructively to do to him something different from what was the actuality. He then became subject, of course, in all of this to the provisions under clause 17, so that he becomes subject to the thugs attacking him because he is in an assembly which presumably then is involved in one of these offences.
That is the way the matter may be related. The Government has a tough enough law here, so why does it start to introduce these evidentiary provisions to substitute for the actualities some notional situation that not only is he in it but he is in it for a certain reason and because of a certain thing? Does the Government not think it has gone far enough to tie down the citizen without putting in these constructions and notional situations? I would have thought that the Government had a tough enough measure already without starting to construct laws of evidence and saying: ‘Because he is there he is deemed to have been there for some reason’. If the Government wants to prove that he has committed the offence, why does it not prove it without introducing special evidentiary provisions?
– My leader has actually fortified my motive for seeking further information from the Minister. I want to go a little further. Senator James McClelland, like Senator Murphy and I, knows the eastern suburbs of Sydney very well. I want to use the Yugoslav Embassy in Knox Street, Double Bay, to illustrate another situation that can arise. There are quite a number of coffee shops around there. I could be sitting there with friends of mine who would not agree with the ultra-Croatian right wing . movement. We might be having coffee there and a great surge of people might come down to demonstrate outside the embassy. When they see me and some of my friends they are sure to shout insults and I will shout them back. They will call me names and I will call them Fascist so-and-sos. What I want to know is whether under this Bill I have to keep my mouth shut and turn the other cheek, which is’ foreign to me, or can I be lumbered with everyone else for calling them names in response to what they call me.
It is as simple as that. I have got away with things. When people insult me they get it back with double interest. I want to know whether I can still do the same if I am down at Double Bay and people such as those I have mentioned come along and sing out to me. I want to be able to dish it out to them with even more invective.
– Much as I can imagine, knowing Senator Mulvihill as I do. that he would be most interested and concerned with that particular situation. I shall certainly be happy to leave that for the Minister to reply to. I am quite happy to comment only about the situation raised by Senator Murphy. It did seem to me that in his explanation, which was an answer to the question which I had raised, rather than explaining it he had somewhat obscured it because what he said was that the objection to clause 21 (1.) was really that it got down to subjecting a person to being open to the sort of abuse which he has said a person could be open to as a result of the provisions of clause 17.
Senator Murphy talked about the thugs who could be able to operate against this person where situations such as he envisaged earlier in the debate in relation to clause 17 should prevail. Why the provisions of clause 21 should make any difference at all as to whether that person could be subjected to the thuggery of the thugs which he envisages is something that escapes me entirely, because it could not possibly make any difference. Clause 21 could not possibly make any difference as to whether the imagined thugs under clause 17 (4.) are able to carry out their thuggery.
If a person is physically present, whether clause 21 is there or not, if the arguments in relation to clause 17 (4.) are valid they are valid irrespective of clause 21. This is the part that I still do not understand as to what is the nature of the objection to clause 21. I am just trying to understand what is the particular objection that is taken.
– You must have been a long time getting through first grade.
– lt all depends what we call first grade, I suppose, and perhaps we will not go through the definitions. I simply say that I would like somebody to define what it is that is being complained about before I consider whether that complaint is valid. I am still simply saying that clause 21 has nothing to do with whether somebody could be subjected to some form of thuggery because of the provisions of clause 17 (4.)
– I consider that there is a tremendous amount of weight in what Senator Rae has said. After all, we have a number of proceedings which may be taken as a result of actions which contravene Part III of this legislation, and it is only with regard to proceedings which arise under this Part of the legislation that clause 21 comes into operation at all. For example, it is said in clause 19 that a person who, while taking part in an assembly that is in relation to protected premises - that is an embassy or the residence of a diplomat - throws, releases, deposits or deals with a repulsive object or substance in a manner likely to cause injury to per sons or damage to property is guilty of an offence. If the matter goes to court, one of the points necessary to be established by the prosecution is that the assembly or demonstration was in relation to an embassy or the residence of a diplomat.
What is meant by the expression ‘in relation to protected premises’? It is necessary to show that there was a clear connection between the assembly or demostration taking place and an embassy or premises of a diplomat. That may be difficult to establish. All that clause 21 does is to say that in any such proceedings in which the prosecution has to prove that the demonstration was in relation to those premises, evidence that the place where the assembly was taking place was in the vicinity of the embassy or the residence of the diplomat is of such a circumstance, and because of the proximity the people were there. To a non-lawyer it may seem rather unnecessary to have to establish that fact, but to a lawyer who is versed in the way in which people defend these matters - and counsel for a defendant always takes advantage of every point which the prosecution has to prove - it becomes a highly relevant matter.
It is therefore merely an evidentiary proposition. If a person says that the people were in that place because of its proximity to an embassy or diplomat’s residence and it is not contradicted, that is evidence; but there is ample opportunity for anyone to challenge the proposition. Once the defence produces evidence to rebut the evidence permitted by clause 21, the onus is on the prosecution then to produce evidence to contradict the evidence which has been given by the defendant, or to try to destroy its force by crossexamination.
The real value of sub-clause 1 of clause 21 lies in exposing to cross-examination specious attempts to establish that the holding of an assembly somewhere near an embassy or diplomat’s residence was a mere coincidence. I consider that no injustice is involved in permitting such evidence to be given. Senator Rae has not spelled it out as I have done. He has limited his concern to asking what the objection is to the provision. We have not heard any objection yet to the precise provision in the clause we are considering. Before the suspension of the sitting Senator Toohey, and in a sense Senator Mulvihill later, were each concerned to establish if they could that they as innocent persons not in any way tied up with a demonstration could not be linked with that demonstration and regarded as subject to the same penalties as people engaging in the demonstration. I do not think that this clause has anything to do with that question. A person is either a member of a demonstration or he is not. If he is not a member of a demonstration he has only to say that he is not.
– That is not quite right. The onus of proof is on him.
– That is not so. I do not believe that Senator Mulvihill or Senator Toohey would be tied up with, the types of demonstration they have cited as examples.
– I am not concerned for myself. I am concerned for other people.
– Appreciating that the concern which may be expressed in personal language is really a concern for other persons, if those persons should be victims of a policeman who suspects that they are engaged in a demonstration and their protestations do not persuade him from that view, I have no doubt that if they went to court after being charged they would have an absolute excuse or justification to exculpate themselves from the charge.
– What about the thugs who in the meantime have hit them on the head?
– I do not think that that comment does any credit to Senator Murphy. Senator Toohey and Senator Mulvihill were concerned with a problem that could well arise from time to time. In the words of Senator Mulvihill, a person observed by people in a demon.straon could immediately become the subject of abuse. He might want to deal it back to his critics in even worse invective. He is in the position that he feels that he has done nothing wrong. I say that it depends on what the person does. There are laws of the land which we must all observe, even though we are not part of a demonstration, but I cannot see from this provision or any other provision of the law that in the example Senator Mulvihill gave he would be put in any difficult position if he behaved reasonably, even if vocally, to express bis point of view.
In the terms of clause 21 there is nothing which makes him more amenable to prosecution than he would be if there was no such provision. I regret that Senator Murphy interjected to refer to thugs who might in the meantime have hit the person concerned. If people in a demonstration engage in thuggery, to use Senator Murphy’s expression, the law should be sufficiently strong to deal with them. That is the purpose of this Bill. I do not think that it helps the argument or makes any case to speak as Senator Murphy did. If he is concerned, he ought to be supporting this Bill to the hilt. We are concerned to examine the provisions carefully to see that they do not go further than they should. Senator Rae said that if honourable senators opposite had any objection, let them specify it. We have not heard it yet.
– I inform the Minister that the thugs to whom I was referring, are the thugs who .already exist in the community and who have demonstrated their, desire to break- up peaceful assemblies. They have attended peaceful assemblies for that purpose. They have been shown on our television screens. They are given encouragement by this Bill to use force to disperse assemblies even though not. called upon to do so by the police force. It may be that the police do not want them to disperse the assemblies. Nevertheless, this Bill would make it lawful for them to do so. Those are the thugs to whom 1 referred and I regret that the Minister has not yet seen fit to deal with the problem. We have made clear what we think of the sub-clause.
Sub-clause agreed to.
– We do not oppose this part of the clause.
Sub-clause agreed to. .
Clause agreed to.
A constable may, without warrant, arrest a person if the constable has reasonable ground to believe that the person has committed an offence against this Act.
– In our belief, this clause is a bad one. The clause provides:
A constable may, without warrant, arrest a person if the constable has reasonable ground to believe that the persoa has committed an offence against this Act
The comparative section of the Crimes Act, section 8a, states:
Any constable may, without warrant, arrest any person, if the constable has reasonable ground to believe-
that the person has committed an offence against the law sf the Commonwealth or of a Territory;
To that point that section is the same as clause 22. Section 8a of the Crimes Acf continues:
Our complaint against clause 22 is a very simple but a very important one. For a very long time - perhaps the Minister might tell us for how long this has been the law - the Crimes Act has provided that a constable may not arrest without a warrant unless he believes that proceedings against the person by summons would not be effective. AH over the Commonwealth that provision of the Crimes Act has been effective. It has been a good provision. There have been no complaints about it. I have never heard the police say that they did not want this provision and that it has caused great difficulty. It would have to cause great difficulty - not a little difficulty - before anyone would want to take away this protection of the citizen. Yet slipped into this Bill is the attempt to whittle clown the right of a citizen not to be arrested.
Take the case I gave yesterday of the 17-year-old girl who was on television the night before the George’s River by-election campaign. She was standing quietly in Hyde Park handing out a few pamphlets. The camera was on her some time before the policeman moved in to arrest her. She was not knocked about by the policeman. There was no suggestion of that. He tried to stop her from giving out pamphlets. The girl was committing no offence. There was no observable reason why she should have been dealt with in this way. To see this girl bundled into the wagon and taken off to the police station was a shocking thing. I am not saying that the policeman knocked her about. That is not the suggestion I am making. I thought it was a shocking thing for anyone to see. I thought it had a profound effect on the people of this country.
This could have been avoided if the New South Wales law had a provision such as the section in the Commonwealth Crimes Act by which the policeman could have asked and got the girl’s name and address, satisfied himself of that by some means of identification and then proceeded against her by summons. Why should that girl have been bundled into that wagon, taken off to the cells, treated like a common criminal, fingerprinted and put through all the usual processes? Why should other persons who might be involved in similar incidents - some of whom might be guilty and some of whom might be innocent - be confronted with the prospect of imprisonment if the only reason for arrest is to ensure that they, come before the court to be tried? They should not be penalised before trial. If a summons would be effective, why should that not be the procedure to be followed? How does the Minister justify the clause? Under the Crimes Act, if “ a summons would be effective, it is left to the discretion of the constable whether he will arrest the suspected offender. All the constable has to say is that he has a reasonable ground to believe that a person has committed an offence and that proceedings against the person by summons would not be effective. Then he can make the arrest. Is not the law as it stands, under section 8a of the Crimes Act, sufficient.
– What is the New South Wales law on the distribution of pamphlets? ls that illegal?
– Does one have to get a permit?
– I think that in some circumstances one has to get a permit. Let us assume for a moment that the girl was committing an offence; that under some by-law she was committing an offence. Would it not have been reasonable for the constable to have said: ‘I propose to take proceedings against you. You have committed an offence. I can arrest you or serve a summons on you. If you satisfy me as to your name and identification I will issue a summons against you. Unless I am satisfied with that I will arrest you’?
– The person could give an alias.
– That is right. In some cases the constable may know the person and then there is no problem. Is not section 8a of the Crimes Act, as it now stands, reasonable enough? That is the law. Section 8a states:
Any constable may, without warrant, arrest any person, if the constable has reasonable ground to believe -
that the person has committed an offence against the law of the Commonwealth or of a Territory; and
that proceedings against the person by summons would not be effective.
That is a fair and reasonable law. We are not saying that people should not be arrested. Is that not a fair and reasonable law? It has been the law for a long time. Why should it not stay the law? Why should a constable arrest a person even though he thinks that proceedings against the person by summons would be effective? Senator Gair asked me questions about this. I suggest, with very great respect to him, that he should consider, notwithstanding that his Party has in general agreed to support this Bill, whether what I put is a fair proposition. I will put my proposition to the Committee generally. Is not the proposition I am putting a fair and reasonable one? That section of the Crimes Act has stood while various parties have been in and out of office. This has been the law. This is a good law and it should be retained. I ask the Minister to confirm whether, if this clause is defeated, section 8a of the Crimes Act will remain. That seems to be the position. The Minister seems to concur with that. If clause 22 were defeated section 8a of the Crimes Act would cover the position to enable the powers of arrest to be as they have always been. I respectfully suggest to the Committee that this clause should not be allowed to stand in the Bill but that section 8a of the Crimes Act should continue to prevail throughout the Commonwealth and its Territories.
– I have listened with interest to what Senator Murphy has said. I do not dispute that much of what he said is cause for a reasonable appre hension of concern, but let us look at what section 8a of the Crimes Act says and at the intent and purpose of clause 22 of the Bill. Section 8a states:
Any constable may, without warrant, arrest any person, if the constable has reasonable grounds- to believe -
that the person has committed an offence against the law of the Commonwealth or of a Territory; and
that proceedings against the person by summons would not be effective.
From that provision in the Crimes Act it is clear that if a law of the Commonwealth is breached or if a constable believes on reasonable grounds that it has been breached, he may, without warrant, simply take that person into custody and hold him in accordance with process of law. He has to be satisfied of 2 things. First he must be satisfied that there has been a breach of the law of the Commonwealth. He must have reasonable grounds for believing that. Of course, that is the basis upon which , a police constable acts. Secondly, he must be satisfied of a further requirement, that is, that the proceedings against -the person by summons would not be. effective. In other words, it is not sufficient for the policeman just to take the name, of the alleged offender so that in due course, he. can be served wilh a summons requiring him to attend before the court. That is fair enough, as far as it goes. He has to be satisfied that such a summons would not be effective. One can suppose that a summons would not be effective if there were some reason for believing that the name and address given by the offender were not his true name and address or that, if it were his true name and address, he was not likely to be there in order to receive service of the summons, or that in some other way he would evade service. It is a very limited consideration which the constable has to bear in mind. This is the provision of the Crimes Act and there are inhibitions in taking action under it.
What does the Bill propose? It simply says that a constable may, without warrant, arrest a person if the constable has reasonable ground to believe that the person has committed an offence against this Act. It gives a constable power to arrest a person without warrant where he believes that the person has committed an offence against the Act and, of course, it is in wider terms than the provision in the Crimes Act. The circumstances which I have in mind is that a person taking part in a demonstration sits down along with a host of others and impedes traffic, whether it be vehicular traffic or the passage of people going home from their shopping or home from their work, and the policeman has to remove them. What can he do? He can believe on reasonable grounds than an offence has been committed under this Act, for if an unreasonable obstruction has been caused it would be an offence. What does he do? He can, I suppose, ask the sitting demonstrator to remove himself. 1 do not suppose that anyone in this chamber would believe that on mere request a sit-in demonstrator, would remove himself. So the policeman would then have to lift him, or a few policemen would have to lift that person, and remove him. If he had no power to arrest him he would have no power to prevent him from going back.
– But that is not the purpose of the clause, is it?
– It is the purpose of the clause. The purpose is to enable a police constable to arrest without warrant where he has reasonable grounds for believing that an offence has been committed. One obvious situation where that would occur is where the sit-in demonstrator has been removed and he is arrested simply in order to prevent him from going back and sitting down in the place whence he was removed. That, to me, represents one circumstance where this clause does have meaning.
I listened intently to what Senator Murphy said. Whether or not he has given consideration to this aspect which I have raised I am not sure but it seems to me to be a very reasonable power for the policeman to have, if the power which it is said he is being given is to be effective. Accordingly, I use the procedures of the Senate to pose the question for Senator Murphy. If he feels that what I have said has some inadequacy by way of response, I would be prepared to consider the answer that he gives me.
– In response to what has been said by the Minister I would say that it is extremely disturbing to me to think that in this chamber, on behalf of the Government, we would bear advanced the proposition that the power of arrest is to be used, in effect, to penalise persons or to provide for some preventive detention. If the purpose were as. the Minister indicated - to deal with people who might be engaging in a further contravention of the Act or in some breach of the peace- let that be put into the clause. But it is not in the provision. The purpose of arrest or of summons is to bring people before the court for trial. The purpose of arrest is not as indicated by the Minister. We find that in this community arrest is being degraded and is being used for purposes which have never been the aim of the law. One hears constantly over the radio that persons have been arrested for questioning. Of course any lawyer knows that an arrest for this purpose is an illegal arrest. That is not the reason for arrest. Here the Minister is suggesting that the purpose of the arrest is not to bring the person before the court but for some other reason. It is not for the constable to adjudge the guilt of the person. The arrest is a procedural step only where one cannot issue a summons to bring a person before the court. That is the purpose of arrest.
I will concede to the Government that there are occasions when it has been said that the authorities may intervene in order to prevent a continuing breach of the peace. If that is the intention of this clause, let it be written into the clause. This arrest provision applies to the whole of the Bill, even to those cases that we dealt with where there was trespass by one person and there was no connection with any demonstration, tumult, or riot. The ordinary law has been broken down. I suggest to the Minister representing the Attorney-General that here we have a long-standing provision in the Crimes Act - one of the best provisions in Commonwealth law. Speaking for myself - I ask the Minister to consider this - when looking through the area of civil liberty one of the few provisions in the Commonwealth law which has appealed to me over the years has been section 8a of the
Crimes Act. I thought it was a wise provision. I know that sometimes it is difficult for a constable. 1 do not evade the issue that sometimes there are problems for the constable and the authorities, and that probably the Minister has not dealt with all the problems. I am aware of that.
In the balance the Government is trying to draw between the citizen and authority, section 8a of the Crimes Act has been a very good provision. It is better than any of the State measures. Senator Gair did not ask me about State legislation, although I think he was close to it, but the provisions in State law are like the provisions in this Bill. It has been a good feature of Commonwealth law that section 8a has existed and there has been this curb. It is beneficial and I think it has worked well. I think also that it should be left as it is. If it is thought that we should have a special provision to deal with the situation that the Minister has outlined, that there may be people who would engage in a continuing contravention of the Act, let that be written into the Bill. In the situation where a person is stopped by a constable who says to him: T intend to take proceedings against you,’ and there is no suggestion that the person will continue in contravention of the Act, surely he should not be arrested. I would like to see remaining in Commonwealth law the provision that he is not to be arrested if proceedings by summons would be effective. Too many incidents of this nature are occurring. The little girl I mentioned earlier in the debate probably would not have been arrested if a provision like section 8a of the Crimes Act had been written into the New South Wales legislation.
If the Government feels that it needs a provision to deal with tumult or with those persons whom it feels will engage in a breach of the peace unless they are arrested it should write such a provision into the legislation, but it should not put in a general provision which will break down the terms of a fine provision which has been in the Crimes Act for a long time. I think that this may be one of the most important parts of the Bill. I believe that the Government would do great credit to itself if it had another look at this matter and either left the clause out or, if it felt that it was absolutely vital to put something in the legislation to meet its concern about such a breach of the peace, added such a provision. Frankly I think the law would be a lot better if the Crimes Act provision were left as it is. I would appeal to the Government to do that.
– Am I to take it from what Senator Murphy has said that he wishes the Crimes Act provisions to remain as they are? He has been talking about section 8a of the Crimes Act but he has not referred to section 8. To me the 2 necessarily go together. Senator Murphy said that the law should be left as it stands at the moment. If we were to leave the law as it is we would have the provisions of arrest without warrant in respect of breaches of the peace and we would have the other provision about which he has been speaking, namely, section 8a of the Crimes Act. I draw his attention to that matter because to me it is an important part of the consideration of what he has been saying.
– I am indebted to Senator Rae for his comments. I think he has answered the proposition that I was putting. He is quite right in saying that I did not advert to this matter while - 1 was speaking. Section 8 of the Crimes Act would give the right, if there was an apprehended breach, of the peace, for the constable to arrest the person anyway. In those circumstances, why do we not leave the law as it is? Section 8a is quite reasonable in its present form and section 8 deals with the very situation the Minister has spoken about of a person who will persist in sitting down in the street or something like that in breach of the peace. The Government is breaking down a set of provisions that deal with exactly what the Minister wants to cover. I ask the Minister whether it is correct, as Senator Rae has pointed out, that in the situation he referred to a constable would have the power to arrest - in effect, to exercise the power of the court, to penalise or to have injunctive powers, if I might call them that - to prevent a breach of the peace. Is this not covered by section 8 of the Crimes Act? Would the law not be best left as it is?
– I have listened with interest - not without some sympathy - to the point that Senator
Murphy has raised. I do not think it is correct to say that I did not answer the original proposition that he put up. I did give the example of a situation where the mere removal from his position of a person is engaged in a sit-in is not going to prevent him going back and sitting in the same area or in the vicinity and continuing the breach that his removal was originally designed to prevent. That is one of the practical problems that the police are concerned with in this phenomenon of a sit-in demonstration. Therefore, the policemen have to be given some powers to remove the wrongdoer when that person is engaged in or is likely to engage in a repetition of the offence as soon as he is removed from his particular position. I think I did answer the original proposition. I am prepared to accommodate the arguments which have been put forward by the Opposition. I feel that a provision which, I hope, covers the point of concern of Senator Murphy and yet preserves the point which I have been concerned to assert will meet the position.
Leave out the clause and insert the following clause:
A constable may, without warrant, arrest a person for an offence against this Act if the constable has reasonable ground to believe that the person has committed that offence and that -
proceedings against the person by. summons would not be effective; or
the arrest is necessary in order to prevent persistence by the person in, or repetition by the person of, conduct of the kind constituting the offence, or the commission by the person of other offences against this Act.’.
Although this amendment does not go as far as Senator Murphy has been urging me to go, I do believe that it represents an acknowledgement of part of the claim which he was concerned to put forward. It is a matter which the Government is concerned about. I want to assert - as the moving of this amendment indicates - that the Government is concerned to respond to responsible, reasonable argument and it always has been. I think that this provision, if it is acceptable to the Committee, will go a long way towards meeting the reasonable grounds of Opposition. The only other point I would make is in regard to the point which Senator Rae made in respect to the Crimes Act. The power of civil arrest, which, in the Crimes Act, is linked with the power of police arrest, is limited in the expression in the Crimes Act to offences against the Crimes Act. In those circumstances, I think that it has limited1 - if any at all - application to the Bill which is before us.
– I agree with the Minister that his proposition does go a long way towards meeting what I have put. I do not think it goes far enough, but it is a great improvement. I would prefer the law to have been left in the state that it was in because I think it is better not to tamper with a law that has been working well and that preserves a proper balance between the citizens and the authorities. I am grateful to the Minister for the proposal that he has made because it is certainly a considerable improvement upon the provision in this Bill. In those circumstances the Opposition will not oppose the amendment. I can hardly see how the Opposition could because it is an improvement upon the previous position. We aire not likely to do any. better than we have done. I think the Opposition will content itself with accepting the proposition that has been put forward by the Minister. The Opposition is grateful to him for having put it forward. The Opposition is not satisfied that this is how the law should stand, but it thinks that it has done as well as it could expect.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 23. (1.) Offences against this Act, other than an offence against section 7 or section 16, are punishable on summary conviction.
– Could we deal with this by sub-clauses? It might be simpler.
-(SenatorLawrie) - There being no objection, that course will be followed. We shall deal first, with sub-clause (1.).
– I move:
In sub-clause (1.) leave out ‘, other than an offence against section 7 or section 16, are punishable on summary convictions’, insert ‘shall not be determined summarily except with the consent of the defendant’.
The reason for this amendment is to allow the defendant to have the right to trial by jury. We have adverted already in the proceedings before the Committee to the importance of the trial by jury. We think that the jury can see to it that there is not an abuse of the administration of the Act. This would stike the balance that we feel the Government has signally failed to .strike. I suppose whatever was done in an enactment it would be very difficult for a government not to try to defend itself against criticism, not to suppress criticism. Over the years in Austrafia not only conservative governments but also Labor governments have wanted to protect themselves against criticism, to suppress it. This has been a characteristic of all governments, not only in Australia but also elsewhere. Every government wants to suppress criticism, to disperse assemblies or to suppress them, as in the terms of this enactment. Every ruler throughout the history of the world, with very few exceptions, has been extremely sensitive to any kind of criticism.
– They have been frightened of the people.
– Half of them are not criticising this Government; they are criticising the Government of South Africa or some other country.
– I think what Senator Wheeldon says is right, that they are frightened of the people. I also think what Senator Little says is correct, that they criticise governments elsewhere because they are aware of their misdeeds, and probably because of the limited means and quality of the communications in this country they are not as aware of the misdeeds of the Government as they should be and perhaps they do not have that objective view which one has when one is outside a country and looking at it. However, whether people are right or wrong they are entitled to criticise. They should be able to criticise. Every government seeks to stamp out this criticism. We have the authoritarians in our own political party, just as honourable senators opposite have authoritarians in theirs.
There is no group or society in our community that does not have authoritarians, and they have a way of getting to the top of our government.
We have had a number of authoritarians in high places in our community over the years. We will leave contemporary events out of this matter and turn back to the events of the last war or the war before that. One does not need to have much of a memory to know how strong the governments were to suppress any kind of criticism. There is one body which can strike this balance. Senator Greenwood says that the courts will decide this and, of course, that is correct. Who is to constitute the court? Will the standards of the people prevail in the courts and that common sense which has been expressed through the jury system which has made the Anglo-Saxon people respect their law in a way which has not been seen m other administrations. I see Senator Rae smiling approvingly at those remarks about the jury system. What we say is that in these matters where a balance needs to be struck let us have the jury system. The amendment is designed to see to it that in an area where there may be a difference of opinion in these matters let it be decided by the jury.
– The Government opposes this amendment. It seems to me that what the Opposition is contending for is a quite unreasonable position which, if it were to be accepted and applied in other areas, would make nonsense of the whole system of administration of justice. As long as there has been a sensible system of administration of justice, not only in Australia but also in England, there have been some offences of a relatively summary or trivial character which have been tried by justices of the peace or in latter days by magistrates, some who are qualified in terms of legal equipment and others who are not, but who in either case have had common sense every day experience of the courts. In addition to those types Qf offences there are more serious types of offences in respect of which a defendant, if he pleads not guilty, has always had the right to trial by jury.
There must inevitably be a question of where you draw the line. It would be an absurd proposition to suppose that everybody who is chargd with being drunk and disorderly, every person who is charged with offensive behaviour or insulting words, every person who is charged with driving a motor car in excess of 35 miles an hour or with failing to give way to the vehicle on his right could, if he chose, have a trial by jury. I do not believe that our system of justice would be enhanced by demoting and degrading the status of a jury trial to cover all those offences. There must be a limit. I believe that the limit which has been generally accepted over the years has been based on 2 principles. One is the type of issue which the jury, as the determinant of the facts, has to determine. Where the issue is one which does involve a matter of judgment, it is a fair thing for a jury to have that say. But the second criterion - I suppose it is the more important criterion overall - is: What is the punishment to which a person exposes himself? We have heard in the Senate over the years countless examples given by Senator Murphy that 12 months or 6 months represent a period of punishment in regard to which a jury trial might be appropriate.
The maximum term of punishment in the cases to which this Bill applies is no more than 3 months, and it would appear to me that that is consonant with the types of punishment which are open to be imposed upon a person who is tried by a magistrate under so many of the ordinary laws which are passed by the States. In this case, why should there be a jury trial insisted upon by the Opposition. I visualise one example in which some people would delight in the fact that there was a jury trial. There are those people who engage in demonstrations of one sort and another and who are prepared to make a farce of the whole system to which they express themselves as being opposed. We have seen the misuse of the courts by people who have prosecuted other people, and these other people who have been prosecuted have pleaded guilty even though they knew they were innocent. This is the sort of farce to which a number of these people are subjecting our processes. If they were to be able to claim a jury trial in this type of situation I believe we would have a position where we might have hundreds of demonstrators arrested quite deliberately for an offence which, if it were tried before the courts, might bring them a fine of $4 or a bond to be of good behaviour for 6 months, and every one of them would insist on a jury trial.
A jury trial in these circumstances is paid for by the people, of this country, and I do not believe that the system should be so exposed to such farcical behaviour on the part of some people whose sole objective is to bring the system down that we should open it up. in that way. I think that one should refer Senator Murphy to the speeches he made’ on the Narcotic Drugs Bill and the Wireless Telegraphy Bill in which, while stressing the value of trial by jury, he applied it to offences where the punishment, was 10 years. 1 refer him to his remarks where he thought offences with a punishment of less than 6 months were fair enough to be tried by a magistrate. This is a case where the offences involved attract punishments of less than 6 months - as I said, 3 months - and I fail to see why the arguments which Senator Murphy used on that occasion, and which appeared then to have some weight to him, should not have the same weight to him on this occasion.
– The Australian Democratic Labor Party would not support the contention that has been put forward by Senator Murphy on this question. 1 do not wish to deal with the points Senator Greenwood has dealt with. I am no lawyer, thank goodness. After what I have heard for the last couple of days it would appear to me that if somebody is arrested, under the terms of this Bill, for sitting in the middle of the street neither the court nor the jury would be concerned with their criticism of the Government or anyone else. They would be charged with the crime of sitting in the street, and that is all the evidence that would be submitted to the jjury to prove they were guilty of the offence. The purpose that they had in mind in sitting in the street and breaking the law has nothing more to do with the jury than it has to do with me or anybody else who might happen to be present. They may be laying in the street because they are drunk, and they then would be submitted to the same sort of charge. Again the jury would not be concerned so much with the fact that they were laying there drunk but that they were obstructing the traffic by laying in the middle of the roadway. The police would have to remove them and charge them with the offence of being drunk and disorderly. If they were tried by a jury the offence would still be to the fact that they were laying in the middle of the street obstructing the traffic - if those were the circumstances.
I do not see that the high sounding arguments that Senator Murphy puts up because people are opposed to a government, either here or in some other remote part of the world, and they chose to lay down in the middle of the street and obstruct the traffic to exhibit their objection to a particular government those facts would interest either a judge or a jury if they were charged with obstructing the traffic by sitting in the street. The only relevant questions would be: Were they sitting in the street? Were they guilty of that? I do not see how the jury could cither accept or dismiss a charge because it thought that the law under which the charge was laid was a good or a bad law, or that any jury would go to the extent to which I am certain Senator Cavanagh would go. Dr Cairns told him that there were such things as good laws and bad laws whether he had a part in making them or not.
– Do you not agree with that?
– I certainly do not. I believe there is the law and the law is there to be obeyed by all. If we disagree with the law there are procedures in a democratic society by which we should change the law. But we should not go out and defy the law because in the estimation of a person such as Senator Cavanagh some minor law is unnecessary and therefore a bad law.
During my speech on the second reading of this Bill I cited to the honourable senator only the other day the case of 2 young men in Melbourne who wanted to kill a girl. They thought the law that prevented them was a bad one so they went out and broke it. The honourable senator says: ‘But that is different’. It is just a matter of degree in that their minds operate perhaps in a different fashion than does the honourable senator’s. Once we break down the capacity of the law and respect for the law there is no limitation to which that disrespect for the law can be carried. I suggest that the proposition that for minor offences, such as sitting in the street and obstructing traffic, there has to be a trial by jury because it can be said that some people do this for the purpose of criticising a government, either here or abroad, is a ridiculous proposition from anybody, and it is most certainly a ridiculous proposition from a lawyer.
– It is a great pity that for the enlightenment of the Senate and the public of Australia we do not hear more speeches from the representtatives of the Australian Democratic Labor Party. I would welcome more such interventions. I regret that members of that Party have been so silent during this debate and I, for myself, would encourage them as much as possible.
– We are not trying to waste the time of the Senate.
– I do not think it is a waste of the time of the Senate. I think it is extremely desirable that the members of political parties put forward their philosophy on these matters and I would encourage the members of the Democratic Labor Party as often as possible and in such forceful and succinct fashion and with such clarity to explain their views on matters of civil liberties as Senator Little did on this occasion. He has expressed very well the philosophy of those who have framed this Bill and we are indebted to him for explaining his Party’s stand on this Bill and why it has sided with the Government on every matter which has been raised in relation to the Bill. All I ask is that what he said be spread far and wide throughout the community. I hope that it is given attention by every person interested in political affairs. We are extremely indebted to him for telling us why he supports the Government and for telling us his stand on these great issues of peaceable assembly and the issue of freedom of speech.
To answer Senator Greenwood, I would like to say that when speaking on the Narcotic Drugs Bill and on the Wireless Telegraphy Bill I indicted that in regard to trifling offences- I think Senator Greenwood earlier today read out what I said - where the imprisonment was for a limited time summary proceedings might be available.
– The point that we made on the Narcotic Drugs Bill was that we wanted to extend the right of trial by jury. We have never opposed the extension of it. In fact, we have stood for the extension of trial by jury.
– I thank Senator Wheeldon for his helpful intervention. What he says is correct. It is right that we iare attempting to extend trial by jury, which this Bill does not do. We spoke also of trifling offences. I do not regard as trifling any matter which concerns the liberty of the people, the right to peaceable assembly and the right to freedom of speech. These have always been regarded as the area, whether in civil or criminal matters, where the people should be able to participate in the judicial process.
That the words proposed to be left out (Senator Murphy’s amendment) be left out.
The Committee divided. (The Chairman - Senator Bull)
Majority . . . . 3
Question so resolved in the negative
Sub-clause (1.) agreed to.
Clause 23, sub-clause (2.).
– Mr Chairman, the Opposition voted against the last sub-clause after endeavouring to amend it. I want our opposition to these matters to be on the record but we do not want to divide theCommittee unnecessarily. However, we want our. objection to be made clear. We have a serious objection to this clause. Our objection is that the proceedings for commitment for summary prosecution other than under clauses 7 or 16 shall be instituted only with the consent in writing of the Attorney-General. The ground of our objection is this: We are disturbed at the insertion into this Bill of a provision that departs from the rule of law in that the law is not made applicable to everyone. The law can be initiated only against persons with the consent of the Attorney-General.
I have looked through the old documents relating to the revolution in the 17th century. One of the great complaints in Great Britain against the government of the day was the dispensation with the laws and the suspension of the laws. We are finding this practice creeping in again, as it has been today, because governments throughout the ages get up to their old tricks under new guises. One of the new guises is that again and again and again the Government brings in legislation which includes such a provision as this. It does not matter that people say:’ That is a bad law. It can be abused.’ The Government says: ‘No; it can be invoked only with the consent of the Attorney-General.’ That, in substance, is the same kind of dispensation with the law as happened in the 17th century and it was one of the reasons for the overthrow of the monarchy at that time.
We are now dealing with a proposed law which we of the Opposition think is bad. Proceedings cannot be instituted by any citizen. For those who are about to get out their Halsburys, let it he said that notwithstanding the provision that in indictable matters the Crown can take over the case, even indictable matters can be started off by the citizen and the Crown may come in later. But in this case proceedings for the commitment of a person on indictment or summary prosecution shall be instituted only with the consent of the AttorneyGeneral. If we are to have the rule of law, let the law apply to ail citizens. Let the law be as it is. Enable the law to be invoked by any citizen. Let summary offences be followed through by any citizen against any other citizen.- In -the case of indictable matters, because of their seriousness the Crown has the right to move in at some stage and take over the conduct of the proceedings. But essentially the law can be invoked by anyone.
– Have you received Senator Rae’s proposed amendment?
– I have it but Senator Rae has not moved it as yet. We will have something to say about it when he does. Out of courtesy to Senator Rae, I think, it is not proper for me to advert to his proposed amendment until he moves it and makes his points. We do not think this sub-clause is right as it stands and we will oppose it.
– I move:
In sub-clause (2.) leave out ‘Attorney-General’, insert ‘the person holding, or performing the duties of, the office of Crown Solicitor . for the Commonwealth or Deputy Crown Solicitor for the Commonwealth in the State or Territory in which the offence is alleged to have been committed’.
In support of that proposed amendment I refer first to the general principles relating to this matter. I would like to put it into the context, as I see it, of consideration of the question raised by Senator Murphy about which I have been concerned since I first saw this Bill. First, for general principles, I want to quote something which I think is generally accepted. It is a statement by Sir Hartley Shawcross in the House of Commons in 19S1 as reported in
Hansard, volume 483, columns 681-8. It states:
The existence of this discretion and the utility of this discretion in the Attorney-General whether or not to prosecute in particular cases has been so well recognised- -
I emphasise those words - that there has been an increasing tendency in recent years to provide that there shall be no proceedings as to particular classes of offences created by Statute without the consent of the Attorney-General or- and again I emphasise - the Director of Public Prosecutions. That kind of provision has been made to ensure that there wm be no automatic prosecutions and that there will be no frivolous and unnecessary prosecutions in such cases. That is a Parliamentary recognition, if any such recognition were required, that it is the duty of the Attorney-General and the Director- that is the Director of Public Presecutions - to exercise their discretion in every case whether or not to invoke the machinery of the criminal law.
That is a statement which I think has been accepted and which, as I shall develop in a moment, is in my view representative of the attitudes which have been adopted by parliaments over a considerable period of years. The Bill with which we are concerned is a public order Bill. The discussion of the Bill in this chamber has been very interesting and it has tended to be related to the current matters which may or may not be regarded by some people to be matters which are likely to create public disorder. National service, war, or peace - I am not suggesting they are not important matters - are not matters which are necessarily going to be at all times the most important matters and the matters about which there may be situations which cause problems so far as the keeping of public order is concerned. An existing example is the problem of religion which is creating disorder in parts of Ireland and other parts of the world. We have the problem of the conservationists who have become extremely distressed in recent times. As a member of the Senate Select Committee on Water Pollution I add that there is some considerable reason for becoming concerned. Conservationists concern themselves with questions like the Little Desert plan and the Lake Pedder flooding in Tasmania. People have become concerned with various other things. So this concerns not just one sector of the community. It may be any sector of the community which may be dealt with in one way or another by the provisions of this Bill.
– We are not worrying about that now.
– I am trying to put this situation into context. I think the discussion has tended to proceed on the basis that we were looking at it as being related to one thing only. I am simply saying that there is a breadth right throughout the community of potential situations in which we may have people who may be subjected to this Bill. Let us not think about this Bill from the point of view of the Yugoslavian embassy and Senator Mulvihill or particular demonstrators about a particular matter. That is the point I am making.
It is a centuries old basis of law that it is in the public interest to have the ability to control assemblies and to prevent persons inflaming feelings so that persons are incited to violence. It is something which has been known in the law of Australia, the law of the United Kingdom and the law of most of the other Commonwealth countries. There are 2 basic considerations which are well known and well established in relation to this. The first is that there should be a filter system to determine whether prosecutions should be proceeded with. This is something which I suggest is well known and well established. An example is where there is a reasonable prima facie case for the prosecution to proceed and where there is some likelihood or reasonably apparent possibility of prosecutions being launched which are mala fide - that is prosecutions which are not brought bona fide. Those prosecutions should be subjected to some independent scrutiny otherwise one can have a tendency to inflame the situation which the law which was originally passed was intended to control. It is important from the point of view of the protection of the individual against a malicious or vexatious prosecution that there should be some system whereby, for instance, Mr Citizen Smith cannot be charged with murder or with an offence - perhaps a serious offence - under the Public Order Bill without there being a prima facie case established before the Press are able to say that Mr Smith appeared in court charged with such and such.
It may be that that prosecution had been brought entirely without any bona fides on the part of the prosecutor simply to achieve a purpose which is unrelated to the question of obtaining a conviction and whether the law was broken. These are considerations. The Minister also mentioned considerations. He said that we must prevent the system of justice from being clogged completely by vexatious litigants bringing mala fide prosecutions and clogging up the courts. So that nobody will argue that this is something novel which is being suggested in relation to there being a filter system I shall make a further reference. Senator Murphy will be delighted, and Senator Wheeldon if he were here would be delighted, to know that I refer again to my good friend Halsbury, the third edition, volume 10, at pages 338 and 339 where a vast number of Acts are set out in which this type of system is operated. I shall pick a few examples to show that it is not over a short period of time that this system has been used. The consent of the Attorney-General is required in the United Kingdom, for instance, in the Roman Catholic Relief Act 1829; the Public Health Act 1875; the Geneva Convention Act 1911; the Agricultural Credits Act 1928; the Public Order Act 1936 - I emphasise that Act because it has some relevance to this debate; the Public Utilities Street Works Act 1950; and the Rivers (Prevention of Pollution) Act 1951. For over 120 years this type of provision - that is a provision requiring the Attorney-General’s consent - has been known to the English law and used in the English law.
In relation to the Director of Public Prosecutions the consent which is required should be that of an official, a public servant, a senior Crown law officer, as opposed to a member of the Parliament. There are numerous examples of this. As some of them I instance the Lunacy Act 1890; the Punishment of Incest Act 1908; the Local Government Act 1933; and the Incitement to Disaffection Act 1934. An Act which would interest Senator Cotton is the Civil Aviation Act 1949. Another Act is the Dangerous Drugs Act 1951. Again I simply cite those Acts as an example of where the Director of Public Prosecutions in the United Kingdom is the person who has the role of deciding whether a prosecution should proceed. Other examples are the customs prosecutions where a senior customs officer must decide. In the Income Tax Act in the United Kingdom the consent of the Commissioner of Inland Revenue is required before a prosecution is instituted. Again, they are senior public servants whose consent is required, not a member of the Parliament. There is no absolute right to bring a prosecution. My point is that this is a situation well known to the law for a very long time - certainly well over a century - that there should be a filter system. Under this system one has an alternative between the AttorneyGeneral who is a member of the Parliament answerable on the floor of the Parliament or a senior Crown law officer or a senior officer of the department concerned whose Minister is answerable on the floor of the chamber in respect of what that particular person does.
We also have the situation well known in the law where, in relation to indictable offences as Senator Murphy mentioned, these are taken in the final situation to the Supreme Court only with the approval of the Solicitor-General. I suggest that there is ample precedent for a provision such as that which exists in the Bill at the moment or which I have suggested should exist.
I pass then to look at what sort of filter is preferable. Should it be the AttorneyGeneral or should it be an officer of the public service such as the Director of Public Prosecutions, the Solicitor-General or some other senior Crown law officer? The considerations I mention include the direct responsibility of an Attorney-General being answerable to Parliament. That is an argument in favour of the Attorney-General being the person who should have to exercise the discretion. That is one of the considerations. But if that Attorney-General is the person to be responsible he may have a situation where the rest of his responsibility is brought to a halt because he has so many mala fide prosecutions to consider. He is bound to give proper consideration to them and he has no time to do anything else. We may have the situation where prosecutions which are authorised and directed by him may be regarded - and, of course, they would be wrongly so regarded - by some of those who are being prosecuted as being politically motivated prosecutions, particularly in circumstances, which one could imagine would be a common circumstance whoever was in power and whatever the circumstances in which these sorts of provisions were being used, where the offender is violently politically opposed to the Attorney-General whose direction is to be sought by the provisions which exist at the moment. So it would be a case where it would appear that there was not an impartial prosecution being brought.
We all know the old saying about not only must justice be done but it must manifestly appear to be done. I suggest that the persons who are to be prosecuted under a law such as this should not, either genuinely or for the purposes of whatever campaign they are wishing to be able to conduct, be able to say that there is a political prosecution. This would be wrong. It is not in the interests of public order. In fact, it is directly contrary to the interests of public order because it is inflammatory of disorder. After all, the whole purpose for which the Bill is conceived is that there should be an ability on the part of the community or on the part of the Government to carry out its responsibility to the community to keep order within the community.
In anything that I have said about the Attorney-General I am not to be taken as saying that Attorneys-General of all political persuasions are not always faithful to the proper principles as expounded, for instance, by Sir Hartley Shawcross, but the situation is that their position can be misunderstood. The Attorney-General, if he was to make up his mind, would make up his mind as a lawyer, having regard to the public interest and not just whether there was a prima facie case. He would take into account all the aspects of the public interest and then decide whether it was proper to proceed with the prosecution. He would have regard to what his fellow Cabinet Ministers in particular instances may say, but I emphasise that he would not be subject to the direction of Cabinet That is a well established and well known principle. So we would have a situation in the normal course of events where the AttorneyGeneral would be making up his mind on the same principles as would a senior Crown law officer if that senior Crown law officer was given the responsibility of making the decision.
We have the examples which are well known of the Solicitor-General, for instance, having to decide whether a person should be charged with manslaughter or murder; whether, for instance, in the case of a person who is dying of cancer, it is in the public interest to go through the performance of a trial to get a conviction before the person dies in circumstances which would be abhorrent to most people to imagine. There are all sorts of situations that one tan easily imagine in which a Solicitor-General would, in the normal course of the administration of the criminal law, say that . that particular prosecution should sot, in. the public interest, proceed. This is a discretion which has to be exercised hi every case, whether it be by a senior Crown law officer or whether it be by an Attorney-General, and on balance I consider that the requirements of the first consideration which I mentioned are best served by- -
– Order! The honourable senator’s time has expired. Senator MURPHY (New South Wales - Leader ©f the Opposition) (9.43) - I rise in order to permit Senator Rae to continue.
– I thank Senator Murphy for his courtesy. On balance, I consider that the requirements of the first consideration are best served by the filter discretion being exercised by a senior Crown Law departmental officer rather than by the Attorney-General. There is in that event no incitement to further disorder by either the intentional or unintentional but in either event misguided view that prosecutions are political prosecutions. There is then the maintenance in the best possible way of the view in the community that an impartial system of justice is being administered. I think this is something which, so far as the rule of law is concerned, is important. We must in a community maintain a respect for the law, and something which can denigrate the law is something which we must consider very carefully.
I believe that in these sorts of circumstances the discretion being vested in the Attorney-General is something which can in the ultimate bring about a denigration of the law and a disrespect for the legal system which is not in the interests of the community. I think that, having regard to the fact that the same considerations are to be applied either by the Attorney-General or a senior departmental officer, where we have the advantage of no denigration of the law and where we have no disadvantage in the same principles being applied, we have only the other question to consider, and that is the question of whether there is someone answerable on the floor of the House of Parliament in relation to the particular matter. We have to make up our minds which it should be. I simply point out that a senior departmental officer of the Attorney-General’s Department is obviously someone for whom the AttorneyGeneral is answerable on the floor of the chamber, so there is no disadvantage there.
– How can he be answerable for what the Crown Solicitor does if he is not in control of it? How can a man be answerable unless he is in control of the situation himself?
– If there has been some exercise of a discretion which is manifestly unfair, the question may be raised on the floor of the chamber of the Parliament to the Attorney-General, and it is his responsibility to investigate in exactly the same way as it would be if the allegation was that an inspector in the Customs Department had done something wrong and the Minister for Customs was asked questions in relation to his activities.
– But how can the
Attorney-General be answerable if he is not in control?
– I shall finish and then let Senator Murphy and Senator Wheeldon tear to pieces, if they wish, what I have said. I simply submit that, when taken overall, the interests of the community are best served if this discretion, which has been known to the law for more than 150 years in this type of circumstance, is vested in a senior Crown Law officer as opposed to the member of Parliament, the Attorney-General. For that reason, I have moved an amendment which makes the discretion to be that of the Crown Solicitor or his deputy. The Crown Solicitor for the Commonwealth is a person recognised by section 50 of the Judiciary Act, and he has a deputy in each State. This is a situation which does not in any way introduce anything which is novel to the law or novel to Australia, so far as the position of the person who has to exercise the discretion is concerned. I simply ask that honourable senators give consideration to whether the public interest is not best served by accepting this amendment.
– I must confess that I am somewhat puzzled as to the purpose of this amendment. It seems to me that in any case as far as practice is concerned the Crown Solicitor or Deputy Crown Solicitor for a State would be instituting any proceedings, and that clearly the AttorneyGeneral of the Commonwealth is not sitting in his office 24 hours of the day looking through every prosecution of every person who is believed to have offended against some Commonwealth statute. .But Senator Rae has said that in any event we have not taken the authority or the responsibility for any prosecutions out of the hands of the Attorney-General because the Attorney-General is still answerable for any action which is taken by the Crown Solicitor or a Deputy Crown Solicitor. That is the case at present. If we leave the Bill as it is, that is what will happen. The Crown Solicitor, Deputy Crown Solicitor, First Assistant Deputy Crown Solicitor, or whatever may be his title will institute a prosecution. If somebody in the Parliament is critical, naturally the Attorney-General will be responsible.
Senator Rae has raised the matter of an inspector of customs for whom he said the Minister for Customs and Excise is responsible. Of course he is responsible, because the authority is not given under statute to the inspector. The responsibility is given to the Minister for Customs and Excise himself. I can imagine an appalling situation developing as far as this Parliament is concerned if this amendment is carried. For example, the Deputy Crown Colicitor in Perth could authorise a prosecution to be undertaken. The matter could then be raised in the Parliament, with the AttorneyGeneral being asked why it had taken place. The Attorney-General could then say: ‘I had nothing to do with it. The Deputy Crown Solicitor in Perth has been given authority under the legislation and it is not my responsibility, it is his. I have nothing to do with it whatsoever. The statutory authority is vested in the Deputy Crown Solicitor under the Act.. I am merely Attorney-General.’ The Deputy Crown Solicitor would be floating in the air like Mohammed’s coffin, without any visible means of support. Proceedings could be instituted without any authority from either the Attorney-General or the Solicitor-General. We could ask nobody in this Parliament about what had happened. We could not properly criticise anybody in this Parliament, and we could not congratulate anybody in the Parliament if we wished to applaud the measures taken by the Deputy Crown Solicitor.
On this side of the chamber we are very free with our congratulations when we feel they are warranted; We could. not congratulate the Attorney-General ‘ for the measures taken. In this instance we could congratulate the Minister for Health (Senator Greenwood) who represents the AttorneyGeneral (Mr N. H. Bowen) for having the audacity to submit such a Bill to the Senate. I believe that there is no advantage whatsoever in accepting the proposed amendment, lt make no substantive alteration to the Bill. In fact it takes, authority away from the Attorney-General and gives it to his employees in a manner which, so far as I am aware, is not found in any other legislation.
– I have just listed a whole host of examples. It is a pity that you were not listening.
– I listened to some of them. Those I heard did not impress me. I am sorry that I missed the others. I am opposed to the amendment;
– I think that the case put up by Senator Rae in support of his proposed amendment indicates research and also shows very forcefully the variety of considerations which would apply. I am a little surprised at the attitude of Senator Wheeldon in the light of what Senator Murphy said earlier. I think the point made by Senator Murphy illustrates the generally everlasting and unsolvable problem which confronts people who have the task of determining whether prosecutions should be instituted. As I understood Senator Murphy, he felt that there should not be a power of dispensation which could be exercised in political hands. In the sense that an Attorney-General is still responsible, or more accurately is accountable for the officers of his Department in the decisions they take, it may be that the genera] position has not been altered; but at least it appears to the Government that the proposition put by Senator Rae goes some way towards meeting the general concern, and the fear that prosecutions are politically motivated can be overcome.
The Crown Solicitor and his deputies in the Attorney-General’s Department are above politics because they exercise their functions in accordance with the time honoured precepts which attach to their offices. I do not want to suggest that the Attorney-General does not likewise exercise his authority in the same way. The statements of Lord Shawcross cited by Senator Rae represent a pattern which is followed by Attorneys-General in this country and, 1 am sure, by most AttorneysGeneral in countries which accept the common law tradition. The Government is prepared to: accept the proposed amendment because it is persuaded not only that it is a desirable step to take but also because in these circumstances, to use the expression which Senator Rae has used, on balance it appears a reasonable compromise to meet the various concerns which people have.
– A very interesting proposition has been put forward. The Opposition has opposed this Bill because it has some undesirable features. The Government was not game to put forward the proposition which is now advanced by Senator Rae. The Bill passed through the House of Representatives and came to the Senate. Now a backbench senator has put up a proposition which if accepted win mean that any programme which might have been properly directed against the Government and the AttorneyGeneral of the day for taking proceedings under this legislation will be shelved onto a public servant. The Attorney-General will not have to be answerable in Parliament because it will not be his responsibility. When questions are asked about the proceedings he will say: ‘I wash my hands of it. It is not my discretion. It is the discretion of the Crown Solicitor.’
– The Deputy Crown Solicitor.
– That is so. When young people complain about what is being done they will not be going to see Mr Hughes at his house after they have tried to see him in his office. I mention that incident only because it is a notorious thing to happen. They will be out looking for a Crown Solicitor. This is one of the most despicable actions that a government could take. This is a political Bill to which objection is taken by half the community as represented by the Opposition. Whether we are right or wrong in our view, that is the position. Let the Government take the rap for the measure.
Because a backbencher has put up this suggestion the Government is seeking to slide responsibility onto the Crown Solicitor, onto public servants who will be, as Senator Wheeldon said, neither here nor there. A Crown Solicitor may have someone to lean on, but he is a public servant and he is to be asked to take the responsibility for highly contentious political decisions, whether to prosecute or not. Mr Hughes, the former Attorney-General, very frankly and decently said only a month or so ago that one of the hardest jobs he had to do was to make up his mind whether to prosecute in cases concerning objection to national service, and in other political matters of the type related to this Bill.
Senator Rae’s proposed amendment seeks to shove that responsibility onto a public servant. The Minister has said: ‘Oh yes. Although we did not want to do this before, now we think it is a lovely idea that has emanated from a backbencher. We will show how tolerant we are and we will accept it.’ The Government would not have fronted up to do it because it is not the right thing to do. Political decisions should not be taken by public servants.
– I take exception to that.
– I am speaking to the Minister when I say that he would not have done it.
– You are suggesting that this is some sort of frame-up.
– I am not suggesting that. With all respect to Senator Rae, I do not think he would be capable of engaging in such a frame-up. Out of the blue has come something which the Government would not have been game to put up. When it has occurred to Senator Rae, the Government has said: ‘Here is something.’ I am not suggesting that Senator Rae is in a conspiracy with the Government. Far from it. I am suggesting that the Government has taken advantage of Senator Rae’s proposition to accept something it would not have been prepared to put up itself, because it is not right. I hope the Senate will reject it. Senator Gair has been Premier of a State. Other senators have been in public life. They know that this is not the right course to take. We have arguing all night about highly contentious matters. Incidents related to this Bill will be right in the centre of politics. Senator Rae’s proposition is to shelve decisions onto a public servant and to make him the butt because he is to decide whether the law is to be invoked. Unless the public servant gives his approval and affixes his signature to a document, nothing can be done. One can imagine the pressures that will be exerted. Why should any public servant be faced with that responsibility? This should be the responsibility of the AttorneyGeneral.
I am shocked that the representative of the Attorney-General in this chamber would countenance a proposition such as that which has been put here tonight. There is one protection where the AttorneyGeneral is concerned because he has surrounding him some great conventions. These were adverted to by the former Attorney-General, Mr Hughes, when he said that in deciding whether the law should be invoked the Attorney-General has to exercise his discretion and he will not be influenced even by the Cabinet of the day. To allow himself to be told, even by the Cabinet, whether to commence a prosecution would be a disgrace. That is one protection that the citizen has. If the Attorney-General carries out his office as he should he will exercise his discretion rightly. He will say: T am here to exercise this independent discretion. I am one of the great law officers of the Crown. I will decide whether it is in the public interest that the prosecution should be launched’.
This petty amendment in these great matters of public concern and public controversy will shift that onus onto a public servant so that he will come under these pressures, without being surrounded by the conventions which the Attorney-General has, without having the independence which the Attorney-General has and without having the right in Parliament to explain and to defend himself as the Attorney-General has. The amendment will put this onus on a public servant - the Crown Solicitor. He will be pushed into the arena of public criticism where be cannot defend himself and where he does not have the protections which are there not only for him but also for the public. I think the amendment is a disgraceful one, and we will oppose it.
– After that extraordinary outburst by Senator Murphy I feel that I should reply. I found it quite incredible that Senator Murphy should have become quite so emotional when replying. If he had listened to me he might have understood. I did notice that he was not listening to the first portion of my speech. But I am grateful to him for arranging for me to be able to complete what I had to say originally. I would like to point out certain things. Notwithstanding the rather extreme language that was used, my amendment does not alter the position in respect of all the indictable offences under this Act. The Solicitor General or the senior Crown Law officer - in other words, someone other than the Attorney-General - would, if there were no provision such as that contained in clause 23 (2.) have to decide whether a prosecution on an indictable offence under this Act were to proceed. That is the situation that exists in any event. My amendment extends that provision to include summary offences. It extends that provision also in relation to the committal for trial on indictable offences.
I cannot see that Senator Murphy’s extravagant language is justified, when one bears in mind that the situation which I have suggested should apply will apply if the position which he wants to achieve is achieved - that is, that no provision such as that contained in clause 23 (2.) will apply in respect of the more serious offences. The filter will be a filter through a senior Crown Law Officer. The rest of his extravagant statements, which have no legal validity, about palming political responsibility onto public officers to avoid political decisions showed a rather
Surprising and complete distraction from the way in which our law operates. I do not comment further about the personal abuse which was heaped on me. I denied that during his speech. As I understand it, he accepted my denial. Therefore, I will not pursue the matter further.
– I repudiate the allegation which was made by Senator Murphy that in some way this amendment is a frame-up connived by the Government with Senator Rae. This amendment has been examined on its merits and on the basis on which it was put. I have indicated that there areconsiderations both ways. What Senator Murphy found objectionable when he first rose to speak - namely, whether prosecutions should be determined by political considerations - appears on the second time of rising to be the great virtue with which he found inconsistency when he first, spoke.
That the words proposed to be left out (Senator Rae’s amendment) be left out.
The Committee divided. (The Chairman - Senator Bull)
Majority . . . . 3
Question so resolved in the affirmative.
– We are trying to assist the Committee to expedite matters. Let it be clear that the Opposition voted against not only the leaving out of the clause but also the insertion of the other clause. We propose to vote against the sub-clause as it stands for the reason that we have indicated. I do not think it is necessary to divide the Committee, but I want it to be on record that we have opposed it.
Sub-clause, as amended, agreed to.
Sub-clause (3.) and (4.) - by leave - taken together. (3.) Notwithstanding that a consent has not been given in relation 10 an offence in accordance with the last preceding sub-section -
– We are not satisfied with these sub-clauses.I do not think it is necessary to deal extensively withthese provisions because when they are studied it will be appreciated that they derogate from the liberties of the citizen. We are not satisfied that proper protections are afforded in this clause. On some views there is insufficient in the provisions to enable habeas corpus proceedings to be availed of, but it is obvious that we will not get very far in trying to amend the clause. This is part of a structure of clauses with which we disagree completely. We think that the machinery provisions are in Che same category as the remainder of the provisions. We oppose the remainder of the clause and we will vote against it, but we do not seek to divide the Committee once more.
Sub-clauses agreed to.
Clause 24. (1.) Where a person charged with an offence against this Act punishable on summary conviction has requested the information to furnish to that person further particulars of the conduct the subject of the charge, the court shall not proceed with the hearing of the charge until reasonable particulars of that conduct have been furnished to the person charged, and may accordingly adjourn the proceedings from time to time. (2.) If reasonable particulars of the conduct the subject of the charge are not furnished within a reasonable time, the court may dismiss the charge. (3.) Where, at the hearing of a charge for an offence to which this section applies, evidence is given for the prosecution of conduct that would constitute such an offence but that conduct is different from the conduct of which particulars have been given to the person charged upon a request under this section, the court may, on the application of the person charged and if it is of opinion that that person was misled by those particulars, adjourn the hearing upon such terms as it thinks fit.
If these amendments were carried subclause (1.) would read:
Where a person charged with an offence against this Act punishable on summary conviction has requested the informant to furnish to that person full particulars of the charge, the court shall not proceed with the hearing of the charge until reasonable particulars have been furnished to the person charged . . .
I suggest that we deal with sub-clause (1.), see what happens and then make consequential amendments in sub-clause (2.). If I might state the reason for this motion shortly, it is this: At common law a person is entitled to proper particulars of any charge made against him. This sub-clause purports to give a right to an accused person, but it seems to us to limit it. It says that he is entitled to further particulars of the conduct, the subject of the charge, but there may be other things in the charge besides the conduct. In a charge of this kind where a direction is involved, supposing the charge is that a person did not disperse after a direction had been given. He might want to dispute that a direction had been given. He might be saying:I heard no direction. I deny that a direction was given. I ask you to substantiate that it was given. Who was the policeman? Where did he give the direction?’ There may be things other than his conduct coming into question. At common law he would be entitled to these particulars.
Although this provision purports to give him a right, actually it is cutting down on his rights. This is rather like the warranty that a person signs when he buys an electrical appliance. The warranty states that if the person does not sign it. and send it back within 7 days he will not receive the benefit of the warranty. If I may give a little free legal advice to honourable senators: Whatever you do, do hot ever sign one of those documents because you are much better off under the common law than you are under these warranties. In England legislation is now being introduced to outlaw warranties of this kind because they cut down a person’s rights. The same can be said of sub-clause (1.). If one looks at the sub-clause one might say that this is quite decent, that the Bill is giving some benefit to an accused person. A person might say that he has looked through the Bill trying to find something in its provisions that will help an accused, and at last finds something. The Crown said that there would be a balance. There have been 23 clauses in which the citizen has been knocked down, and it might be said that in the 24th clause he is being given something. We do not think he is being given anything. He would be better off under the common law and certainly he would be better off with a provision such as we have at common law, under which he would be entitled to proper particulars of the charge. If that is the law, why should we limit the provision here so that it relates only to conduct? We think that what we have proposed is a reasonable proposition. Perhaps the Government will not agree, but the Opposition considers it to be reasonable. I think the law is as I have stated it and I ask that the Government agree to the amendment that I have suggested:
– I rise briefly to oppose the amendment. There was very little in the point which was made, but what little there was is of some importance. Clause 24 (1.) provides where a person charged with an offence against this
Bill that is punishable on summary conviction has requested the informant to furnish to that person further particulars of the conduct the subject of the charge the court shall not proceed with the hearing of the charge until reasonable particulars of that conduct have been provided. There is no obligation upon a defendant to ask for particulars. He may be satisfied with what he believes is the case that he has to meet on the basis of the detailed information upon which he is summoned. If he is satisfied he will proceed to court and meet the charge. If, on the other hand, he wants further information he can ask for further particulars of the conduct the subject of the charge. If he does that he will be supplied with the particulars and unless he is given reasonable particulars the court is bound to say that the case against him cannot proceed. That, I think, is eminently satisfactory.
– As long as they are reasonable.
– The only question for the court is whether the particulars supplied are reasonable. I think that is an eminently satisfactory and fair position. Senator Murphy’s amendment provides that, if the defendant requests full particulars of the charge, the charge will not proceed until reasonable particulars are given. If, on the other hand, the defendant asks for further particulars of the charge he must get reasonable particulars. It seems to me that this is playing with words. The character of the defendants request is for the defendant himself to determine. If he wants full particulars he will ask for them and if he wants further particulars he will ask for them. All he has to do is ask for further particulars and, until he gets reasonable particulars, the case cannot go on. I think that the point made by Senator Murphy proceeds upon a misconception of words. It is the character of the defendant’s request with which we are concerned. It seems to me that a defendant should be able to make up his own mind whether he wants full particulars or further particulars and, because one is comprehended in the other, all he has to do is take the step of actually asking for particulars. When he asks for something he is entitled to get it. I think there is really no point of substance in the amendment proposed by Senator Murphy. The Government will oppose the amendment.
– It is regrettable to me that I have to stand up once again and put my case. The Minister has dealt with only one portion of what I put to the Committee and the portion with which he dealt was the least important part of my case. The Minister referred to the fact that my amendment seeks to substitute the word ‘full’ for. the word ‘further’. I will go as far as to say that I think there is merit in substituting the word ‘full’ for the word ‘further’, but that was not the point of my moving this amendment. The Minister himself knows the point to which the amendment was directed. The main argument I put was in regard to the limitation as to the conduct the subject of the charge and not full particulars or further particulars of the charge. The Minister endeavoured to obscure this point. I am disturbed that at this stage of the matter he should try to misdirect my argument to a small aspect of the matter and completely ignore the important part of it.
I am prepared to take out the aspect about ‘full* or ‘further’ particulars. What I am concerned about is why a person should not be entitled to not only particulars of the conduct charged but also particulars of the charge. The person concerned may have been charged under clause 17 of the Bill, which provides that a direction can be given to an assembly to disperse. He may say: 1 dispute that the direction was given. Who gave the direction and when was it given?’ He might want to know these things. He might want to call witnesses and pursue the line that one of the ingredients of the charge against him, namely, that a direction was given and 15 minutes elapsed and he had not dispersed was not true. Why should he not be entitled to the particulars?
Will the Minister address himself to the main part of the matter and not pick upon trifling aspects of it? I think it is only fanthat the amendment should be dealt with on the merits of its substance and not on some less important aspect of it.
Murphy’s response to me does raise an issue that is different from the one that I had earlier debated in response to his earlier statement, but I do not think it is a point of great distinction because, whether one puts at the heading of the charge ‘full particulars of the charge’ or ‘further particulars of the conduct the subject of the charge’, one has in any event to get reasonable particulars. If the court is put in the position of determining whether the particulars that are supplied are reasonable particulars, I for one believe that the court will do justice to the defendant by ensuring that he is not prejudiced in regard to what is relevant to the case which is before him. I know that there is a difference, slight thought it is, between the words ‘conduct the subject of the charge’ and the words the charge itself. It is really a lawyer’s difference. However, I do not think it is a distinction of any real meaning. If there is any distinction, I think one goes to matters of law because the charge does involve matters of law which the expression ‘the subject of the charge’ may not involve. It appears to me that that may or may not be the valid distinction, but the important point that Senator Murphy is concerned about is the language in which a request is couched. The important thing is: What would a court do if a person had not been furnished with reasonable particulars? The court would say that the charge could not proceed any further unless reasonable particulars are given. 1 think that is the safeguard which any defendant who found himself in this position would have. This is the matter which Senator Murphy is concerned about.
– Honourable senators ought to be apprised of the true position. The Minister is in effect saying that there is nothing wrong with what 1 have proposed. He is in effect saying that my proposal goes slightly further than what is in the Bill but that there is nothing wrong with it. He has not said that the amendment I have proposed is wrong. He has not said that there is anything improper about it. He has not said that I am putting forward anything which would do anything other than preserve the rights of the citizen under the common
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law. He is in effect saying that even though the rights of citizens under this provision are limited the magistrate will go beyond the provisions of this legislation and actually do what 1 am proposing should be done in the amendment. If there is nothing wrong with what I have proposed why does the Government not accept it? Why should we be putting a clause in this legislation which, on the face of it, limits the rights of defendants? The Minister said that it does not matter what is contained in the provision because the court would not be constrained by what is in it, but that it would go further. I do not think that the court would go further. I think the court would say: The Parliament of the Commonwealth has gone out of its way to limit the right of a defendant in such a matter. It has cut down his common law rights. We are going to treat that as a breaking down of the common law rights of the defendant’. If what I have proposed is proper; if it cannot be criticised in any way; if it will maintain the rights of a defendant at common law why has it not been accepted? Honourable senators opposite claim that they exercise independence and a freedom of mind. Are they going to vote against an amendment at which no criticism can be levelled and which is necessary to preserve the rights of a defendant? The Minister said that any reasonable court will go further than is provided in the legislation to maintain the rights of a citizen. I think that any reasonable legislature would also go further than that to maintain the rights of a citizen. I ask the Minister to accept what I have put forward. There is nothing wrong with it. He has not said there is anything wrong with it. Why does he not accept what I put forward? I ask him to do so.
That the amendment (Senator Murphy’s) to subclause 1 be agreed to.
The Committee divided. (The Chairman - Senator Bill)
Majority . . 2
Question so resolved in the negative.
That the sub-clause I stand as printed.
The Committee divided. (The Chairman - Senator Bull)
Majority . . . . 2
Question so resolved in the affirmative.
Sub-clauses (2.) and (3.) - by leave - taken together.
– The Opposition disagrees with sub-clauses (2.) and (3) for the reasons I indicated. I do not want to refer to sub-clause (2.) further because it is consequential upon sub-clause (1.). I regard sub-clause (3.) as important and I ask Senator Greenwood, the Minister representing the Attorney-General (Mr N. H. Bowen) to assist me if he would. The sub-clause reads:
Where, at the hearing of a charge for an offence to which this section applies, evidence is given for the prosecution of conduct that would constitute such an offence but that conduct is different from the conduct of which particulars have been given to the person charged upon a request under this section, the court may, on the application of the person charged and if it is of opinion that that person was misled by those particulars, adjourn the hearing upon such terms as it thinks fit.
Why does that provision appear in the Bill? Would not the court be entitled to do other things under the common law? Would not the court, for instance, be entitled to dismiss the charge? There is a stipulation that particulars of the conduct with which the defendant is charged must be furnished to the defendant before the court can proceed. We are concerned with the liberty of the subject. Some important procedural matters are involved here which, as far as I know, are unprecedented - certainly unusual - and which may be carried on into other legislation, as we have seen. This is a serious matter and I am concerned about it. We are not trying to do other than raise the points which we think are serious. It seems to us that if particulars are requested of the conduct charged then those particulars are supplied to the person. This is a proceeding which is commenced only with the consent of the Crown Solicitor or some such official who is designated in the Bill as amended, so it is a matter which has engaged the attention of the authorities. A request is made by the accused person who says: ‘I want particulars of the conduct which is charged against me. Those particulars are supplied to the accused person by the Crown acting, honourable senators will recall, not through some minor official but only with the consent of the Crown Solicitor or the Deputy Crown Solicitor - those persons named in Senator Rae’s amendment to the Bill.
The particulars are supplied to the accused person. He is told: ‘That is the conduct with which you are charged*. One would think in all reason that if they then go to the court and do not prove that charge, then the court should be entitled to dismiss the charge. Is that an unreasonable proposition? But we find in this sub-clause a proposition for that power to be taken away from the court Instead the Bill provides that if the situation occurs where, at the hearing of a charge evidence is given for the prosecution of conduct that would constitute such an offence but that conduct is different from the conduct of which particulars have been given to the person charged upon a. request the court may, on the application of the person charged and if it is of opinion that that person was misled by those particulars, adjourn the hearing upon such terms as it thinks fit, Why should not the court be able to dismiss the case, as I think it would be under the common law? Firstly we have proceedings instituted only with the consent of the Deputy Crown Solicitor. The accused person has asked the Crown: ‘What have I done that you have charged me with?’ He is told what he has done and then that is not proved at the hearing but, instead, something altogether different is proved. Why should not the court be entitled to dismiss the case? Why should the citizen be put into the situation that the only thing he can do is apply for an adjournment? The Crown pushes it on to him to apply, and if the court is satisfied that he was misled then it can adjourn the case.
I would think this is like what I suggested to honourable senators about the warranty. Honourable senators opposite may think it is amusing but I do not. There are these encroachments into what I conceive to be the rights of the person before the courts of the land, especially here where we have the limitation that the proceedings can only be commenced with the consent of a high official of the Crown. We have the limitation upon the rights of the accused person. He has to ask for particulars of the charge. When they are supplied why should not the court be left in the position where it might be under the ordinary law? When a person is brought there with the consent of that high official he asks what he is charged with, he is told, and then when they come to court that is not proved against him, why should he not be entitled to ask not for an adjournment of the case but that the case be dismissed. Why should he not be left to it? I think the person would be much better off if he was left to his rights under the common law. Again I ask: Why should this Bill be used as a vehicle for this kind of whittling down of his rights? Why is it necessary? Instead, why should the court not be entitled to dismiss the charge? i spoke to Government supporters today about what the old Roman said and I think some Government supporters should give some attention to his words. It is all very nice here for the Government because the numbers are against us. There are provisions passing into the law that I for one do not think should be in the law. I have conceded that attempts to suppress dissent have not been confined to one government or any political party but that all political parties have indulged in this. I ask Government supporters what they are gaining by agreeing to provisions in clause after clause to which reasonable objection is taken and, as to the last one, to which no answer could be given, when no criticism could be made of the amendment put. Do they really think they are serving the interests of the people whom they represent? Is this really carrying out-
– That is not quite fair.
– Very well. Is this their idea of carrying out the principles upon which their political parties are founded? Were honourable senators opposite brought here merely to do that? Just because this Bill, this piece of paper, is put before them are they going to agree with it, clause after clause, even when reasonable propositions are put to them that are intended to protect the citizens?
– Do you still wish to deal with sub-clauses (2.) and (3.) together?
– I would like them dealt with separately. We disagree with subclause (2.) but I do not wish to pursue the objection further. It is consequential upon sub-clause (1.) and should go with it. We indicate that we oppose sub-clause (2.) as a consequence of the other clause but we do not wish to divide. We will divide the Committee in respect of sub-clause (3.) and vote against it.
– I think that there is no whittling away of the rights of persons charged. Much of what the Leader of the Opposition (Senator Murphy) has said proceeds upon a misconception. In the first place this provision has counterparts in many other Australian statutes. I know there is a comparable provision in the Justices Act of the State of Victoria and I can refer, because I have it here, to the Summary Offences Act of the State of New South Wales. Section 21 (2) of that Act states:
Where at the bearing ot a charge for an offence referred to in subsection one of this section the evidence discloses behaviour or conduct that constitutes such an offence and that behaviour or conduct is different from the behaviour or conduct of which particulars have been given to the defendant under subsection one of this section, the court may, on the application of the defendant and if it is of the opinion that the defendant was deceived by those particulars, adjourn the hearing upon such terms as it thinks fit.
– Is this the Summary Offences Act brought in recently in New South Wales as part of this same kind of law and order thing?
– A Labor government brought in a similar thing in Tasmania several years ago.
– I note what Senator Rae has said. If Senator Murphy is suggesting that this is a provision which has started to appear only recently in the statutes of Australia, I say to him that he is mistaken. It certainly has been in the statutes of Victoria for many years. If Senator Murphy seeks to give strength to his argument by suggesting that this is novel or brings in some prescription which previously has not existed, I say that his foundation is quite inaccurate. The second point is that Senator Murphy has proceeded upon an erroneous basis. A defendant is not required to answer the particulars given in the charge. He is required to answer the information laid against him.
To establish the point I am making I will give an example. If a person is charged that on the 7th May, for instance, he was guilty of an offence in that contrary to section 9 of the Public Order (Protection of Persons and Property) Bill he engaged in unreasonable obstruction, in that he blocked the passageway of a certain person, then that would be the information which he has to answer. If he is given information which suggests that be did it with a brown coloured car which had a registration number, in assocation with a number of other people, whose car numbers also were given, and that amounted to particulars, then if the evidence disclosed that the registration number of the car was different from that which was given in the particulars, I can imagine, because I have lived with this thing over many years, that counsel for the defendant would get up and say that therefore there was a discrepancy between the particulars given in the charge and the evidence which was disclosed.
I believe that in those circumstances if a person is misled it is proper for the case to be adjourned because the evidence still will disclose an offence under the information originally laid. That is the criterion which ought to apply. I think that in what Senator Murphy has . said there is a casuistry which ignores the fundamentals of the proposition and I cannot see that he makes any case out of what he is arguing.
– I will read this sub-clause to honourable senators and let them judge for themselves whether the Minister for Health (Senator Greenwood) is right when he makes this reference to the colour of the car and the registration number. Clause 24 (3.) states: where, at the hearing of a charge for an offence to which this section applies, evidence is given for the prosecution of conduct that would constitute such an offence but that conduct is different from the conduct of which particulars have been given to the person charged . . .
Is there anything in there about the registration number or the colour of the car? It refers to the conduct charged.
– Are you referring to the conduct of the accused person only?
– The conduct is different from the conduct of which particulars have been given. Have honourable senators ever heard anything so removed from that which the Minister stated? The provision is exactly as I indicated to the Committee. All the person charged is entitled to under this clause is the particulars of the conduct charged, not these other matters. They have nothing to do with it. The clause refers to the conduct charged against him. What the Minister has said is a mere mockery of the provision. The court ought to be entitled to dismiss the charge against the person when, after these procedures have been invoked, proceedings have been started with the consent of the Crown Solicitor, the accused has been told of the conduct for which he is charged, and the case brought to be proved against him is of different conduct not a different registration number or a different coloured car but different conduct. I ask the Committee to reject this clause because I am of the opinion that a person is better off under the common law of this land than he would be if his rights were chopped down by this provision.
Clause 24 (2.) agreed to.
That clause 24 (3.) stand as printed.
The Committee divided. (The Chairman - Senator Bull)
Majority . . 2
Question so resolved in the affirmative.
Clause agreed to.
THE CHAIRMAN (Senator Bull)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.
Senator MURPHY (New South WalesLeader of the Opposition) - by leave - If there is going to be a difference of opinion on the matter perhaps a few words should be said. This has been an important Bill. We have had a long day on it. My Party thinks that that is fair enough. We have not endeavoured to delay this Bill. Earlier today or yesterday we were accused by the Minister for Health (Senator Greenwood) of not speaking enough on the Bill. This morning he complained bitterly that we had not spoken enough on one of the clauses. I think honourable senators will recall that during the early part of the day I was taking the initiative in suggesting that questions be put on the matter. There has been no undue delay at all. At one stage I thought we would have got through all stages of this Bill much earlier this evening. I think that the Leader of the Government in the Senate (Senator Sir Kenneth Anderson) and perhaps at one stage the Minister for Health both anticipated that we might have got the Bill through and attended to more Bills. But there was debate from both sides of the chamber. There were amendments from the Government side.
It is now 11o’clock. This is the normal finishing time. This evening we agreed with the Government to give up the general business time after the few minutes were taken at 8 o’clock so that this Bill could be dealt with. 1 think that that was a reasonable proposition. We did not try to delay the Bill. We have agreed every time the Government wanted to bring it on. I think we have debated it intensively. But I think we have done that in a reasonable way. We have refrained from calling quite a number of divisions, sometimes not without a little criticism from some of my colleagues. But we have refrained from calling some divisions and I have taken the course of putting our opposition on the record so that nobody would be in any doubt that we had opposed the clauses and voted against them. In those circumstances I think it is fair enough that we go home. We have co-operated and we have expected co-operation.
– by leave - I would be the first to acknowledge that general business was set down for tonight.
– I ask the honourable senator to speak up, please.
Senator Sir KENNETH ANDERSONIf honourable senators would be quiet they would hear me. Equally I acknowledge without reservation that Senator Murphy has so arranged matters as to bring Government business on tonight. I do not challenge that situation at all. I am not suggesting that there was any attempt at delaying tactics tonight either. Let that be understood. I am doing what we have done so many times before when we have a Bill with perhaps only one clause left and perhaps 2 or 3 divisions. In the interests of what we are here for I suggest we should push on and complete this Bill before we lift tonight. We start at 10 o’clock tomorrow morning. I have no desire to sit late any more than anybody else has. I think it is a reasonable proposition in accordance with the procedures which we have adopted in the past that we complete this Bill tonight.
Question put. The Committee divided. (The Chairman- Senator T. L. Bull)
Majority . . . . -
Clause 25 (Exclusion of certain other laws.)
– All I want to do on this clause is observe that some of the parts of the clause are valuable parts. I think it is a pity that under sub-clause (l.)(b) the Commonwealth Places (Application of laws) Act has not been dealt with in a way which would make uniform Commonwealth law in those Commonwealth places rather than having a differing application of law according to the laws of the State. However, I think that is really a subject for another day. This is a machinery provision intended to clean up some of the older features of the law. While there may be some minor objections and perhaps also some major objections to it, I think that we have dealt with those in the course of dealing with the rest of the Bill, and I do not propose to speak further on the subject. The Opposition will not oppose the clause.
Clause agreed to.
Postponed clause 11. (1.) A person who, without reasonable excuse, trespasses on premises in a Territory is guilty of an offence, punishable on conviction by a fine not exceeding One hundred dollars or imprisonment for a term not exceeding one month, or both. (2.) A person who -
– I move:
In sub-clause (3.), leave out ‘Attorney-General’, insert ‘the person holding, or performing the duties of, the office of Crown Solicitor for the Commonwealth or Deputy Crown Solicitor for the Commonwealth in the State or Territory in which the offence is alleged to have been committed’.
This amendment is consequential on the amendment I moved earlier this evening. It is the first of the 2 amendments circulated earlier this evening. I do not need to explain anything about it; it simply follows that because we have agreed to the amendment to clause 23 we must make clause 1 1 coincide with clause 23.
– In dealing with the other clause on behalf of the Opposition, I think I expressed forceful dissent against Senator Rae’s amendment. Some of my colleagues thought that I may not have conveyed sufficiently by interjec tion that I was not accusing Senator Rae of being involved in a conspiracy with the Government. I thought I had made it clear by interjection to him and also when the Minister was speaking that I was making no such accusation of a conspiracy. What I was suggesting rather was that the Government, not being game to put such a provision in the Bill itself, had taken advantage of the situation created by Senator Rae to do something which it had not dared to itself.
I thought I was quite explicit in saying that I thought Senator Rae was in no way part of a frame-up but rather that his motion was being taken advantage of by a government which would not itself have dared to put the proposal forward in the Bill and in fact did not dare to do that. I hope that clarifies the matter. I think the proposition which is being introduced into the measure is a bad proposition and one which is unworthy of the Government. I am amazed that the Senate would support such a proposition - a proposition of the greatest consequence to the administration of the law - being brought in at the last moment by a back bench member. Why I say that in relation to this measure is that this is a Government measure concerned with one of its most important programmes - a campaign on law and order which it launched - yet after the long time it took to give birth to this unwelcome infant it did not dare to have an appendage in it of this nature. The Bill having passed the House of Representatives and come here, and a private member having made the proposal, it has been seized on by the Government in order to shift from its shoulders the obloquy which will naturally and properly attach to those who are in any way connected with the furtherance of prosecutions under this enactment.
Consistently with what we did before and to show that we will in no way accept that the Government ought to be able to push on to the public servant the exercise of discretion in these matters - we say that the Government ought to accept the responsibility itself and that the traditional role of the Attorney-General ought to be maintained - we will vote against this clause.
I am surprised that political parties and governments which talk about law and order and maintaining the best traditions of the past are constantly throwing away what is best in the past and engaging upon a process of discarding the protections of the citizens. Those who are doing it will have cause to rue the day that they commenced upon this curtailment of the rights of the citizens. Those of the extreme right, of course, welcome any measure which will do that. I think that this will be an extremely bad amendment to the Bill. The Bill was bad enough beforehand, but it will be worse. It will not be an improvement to the Bill. We have been concerned with trying to better the Bill, with trying to help the citizens. Now an amendment is proposed which is in its nature vicious. It is to take away not only the ordinary right of the citizen to invoke the rule of law and equal protection of the law, equal right to initiate the law, but also it has the effect that the limitation is not placed in the Attorney-General, a political figure who would be able to defend himself and to explain his actions. It is put into back rooms and in the hands of public servants. They are not able to come and defend their actions. They are hidden away from the public at large and can be leaned upon by the Government. I think it is a bad amendment. I regret that an attempt was made to put it in the Bill and I regret even more that the attempt has been successful.
– To answer Senator Murphy I refer to what I said earlier. Senator Murphy’s intemperance does not make the validity of his argument any stronger. I have already indicated that were his suggestion to be accepted - that is complete deletion of any such provision - the situation would still be the same. The same officer or an officer holding a similar position would still have to make a decision in relation to the majority of offences created under this Act; that is, those which would go on indictment. The situation postulated by Senator Murphy is unreal and I do not intend to answer it any further. Anyone who reads this section of the Hansard report can easily refer to the earlier sections in which Senator Murphy made the same remarks and I replied to them in more detail.
That the words proposed to be left out (Senator Rae’s amendment) be left out.
The Committee divided. (The Chairman - Senator Bull)
Majority . . . . 1
Question so resolved in the affirmative.
Question resolved in the affirmative.
– I want to indicate that we have opposed not only the first motion, which was to take out words; we have also opposed on the voices the last proposition, although we did not vote. We intend to vote against the clause as it now stands for the reason of the insertion, but we will not divide the Committee.
Clause, as amended, agreed to.
Postponed Clause 12.
– (1.) A person who, without reasonable excuse, trespasses on Commonwealth premises is guilty of an offence, punishable on conviction by a fine not exceeding One hundred dollars or imprisonment for a term not exceeding one month, or both. (2.) A person who -
– Clause 12 was postponed, as was clause 11, in order that the questions raised as to the tenancy rights and the other difficulties in the clause, which had not been explained by the Minister representing the AttorneyGeneral, could be considered. We feel compelled to vote against the clause because no satisfactory explanation has been given. No endeavour has been made to amend this clause. I think it is reasonable that the amendment should have been made to protect the situations which were not concerned with public order and which could invade these other traditional rights of tenants or of other persons. No assurance was given by the Minister as to the limitations of this law. We will vote against the clause.
That the clause stand as printed.
The Committee divided. (The Chairman - Senator Bull)
Majority . . . . 1
Question so resolved in the affirmative.
Clause agreed to.
Postponed clause 17. (1.) Where an assembly consisting of not less than twelve persons is taking place in relation to protected premises or to a protected person and -
In pursuance of the Public Order (Protection of Persons and Property) Act of the Commonwealth of Australia, I (name of police officer), being a Sergeant (or higher rank, as the case may be) in the (name of Police Force), direct all persons taking part in this assembly to disperse forwith. Persons who fail to disperse may render themselves liable to the penalties provided by the Act. (3.) Where-
– I move:
That after the word ‘applies’ in sub-clause (4.) (b) the wordsby reason of its being carried on in a manner involving unlawful violence or damage’ be inserted.
It will be remembered that when this clause was before the Committee earlier today concern was stressed that, having regard to the language as it stood, the right might rest in an individual to assist in dispersing an assembly if in that assembly he saw an harassment or heard the use of insulting words to a diplomat or embassy official. I think the point was made with some cogency. As a result an amendment has been drafted. I think it brings clause 17 into line with clause 8 so that there is an equation of the circumstances in which a citizen may, on his initiative, take action to assist in the dispersal of a demonstration which is causing violence or damage to property. Those who recall the debate earlier today and the way in which the arguments were adduced will appreciate the point of this amendment and will appreciate that it does prevent any misconception arising or any basis being conceived of by a person who wants, for some purpose extraneous to the true purpose of this Bill, to take advantage of it.
– We support the amendment. It is a welcome amendment. It improves the clause slightly by diminishing the opportunity for violence to be used against those who are engaging in a peaceful assembly - that is, violence by persons other than the police; persons who might be wanting to break up an assembly and who might use any excuse to do so. If the Minister had been as helpful in regard to other clauses as he has been in regard to this, we might have had a Bill which would have been generally acceptable. However, this is an improvement. The Opposition accepts the amendment. Nevertheless, we object in principle to the clause as we did to clause 8. Notwithstanding that we agree to this amendment, we would oppose the clause as it stands.
Amendment agreed to.
That the clause, as amended, be agreed to.
The Committee divided. (The Chairman - Senator Bull)
Majority . . . .1
Question so resolved in the affirmative.
Schedule agreed to.
Title agreed to.
Bill reported with amendments; report adopted.
Motion (by Senator Greenwood) proposed:
That the Bill be now read a third time.
– The Opposition opposes the third reading of the Bill. We have endeavoured to make clear our objections to the Bill at some length, but not at undue length, during the course of the proceedings before the Senate and before the Committee of the Whole Senate. We simply wish to express our objection to the principle of the Bill. We say that it is an unnecessary and a bad Bill and that it takes into its scope provisions which have nothing to do with public order but which cut down the rights of the citizen in situations not associated with public order. In dealing with matters of public order, the Bill is bad because it is entirely negative in striking down the rights of the citizen and in saying what should not be done. It provides for means whereby the authorities can disperse and suppress assemblies by eroding the right to peaceful assembly. Above all, the Bill provides no protection at all that might maintain the right of freedom of speech and of peaceful assembly. Therefore, we will oppose the Bill, and we intend to divide the Senate.
– The Government does not regard the Bill as having any of the qualities which have been ascribed to it by Senator Murphy. As has been stated repeatedly, this is a Bill to preserve the rights of all citizens. It is designed to preserve that basic order upon which the liberties of all citizens must depend. It is not a Bill which is an assault upon freedom of speech. It is not a Bill which denies the liberties of the subject. It is a Bill which sets down in clear language applicable to this day and age the limits to which people can go when they demonstrate. To that extent, it is a Bill which is in accordance with the times. I am sure that the Bill will facilitate what all thinking Australians want, and that is a curb on those who would make their liberties an excuse for mere licence. The Government feels that this is a Bill from which the Australian people will derive much benefit.
That the Bill be now read a third time.
The Senate divided. (ThePresident - Senator Sir Alister McMullin)
Majority . . . . 1
Question so resolved in the affirmative.
Bill read a third time.
Senate adjourned at 11.52 p.m.
Cite as: Australia, Senate, Debates, 6 May 1971, viewed 22 October 2017, <http://historichansard.net/senate/1971/19710506_senate_27_s48/>.