27th Parliament · 2nd Session
The PRESIDENT (Senator the Hon. Sir Magnus Cormack) took the chair at 11 a.m., and read prayers.
– I present the following petition:
The Honourable the President, and Senators in Parliament assembled. The humble petition of the undersigned citizens of Australia respectfully showeth:
That on December 10, 1948, Australia signed the ‘Universal Declaration of Human Rights’. Article 25 reads: ‘Everyone has the right to security in the event of unemployment, sickness, disability, widowhood, old age and other lack of livelihood in circumstances beyond his control.’
Yet, 23 years later, in our country of great national wealth and abundance it is to the nation’s shame that many thousands of our people live in a state of being inconsistent with the dignity and worth of the human person - languishing in poverty and want, neglect and the lack of proper care necessary for their health and well-being.
We, the undersigned, respectfully draw your attention that the conscience of the nation is not at ease while the records of our country show that social services are not comparable with those of other advanced countries administering such services, therefore, we call upon the Commonwealth Government to immediately legislate for: Base pension rate - 30 per cent of the average weekly male earnings, all states, plus supplementary assistance and allowances based on a percentage of such earnings. Unemployed benefits equal to the foregoing. Completely free health services to cover all needs of social service pensioners - hospitalisation, chronic and long-term illness, fractures, anaesthetics, specialist, pharmaceutical, hearing aids, dental, optical, physiotherapy, chiropody, surgical aids and any other appliances.
Commonwealth Government to promote a comprehensive national scheme in cooperation with the States and make finance available to provide for the building of public hospitals, nursing and hostel-type homes necessary to effectively meet the special requirements of aged people, in conjunction with a comprehensive domiciliary care programme to enable aged people to stay in their homes.
Mental illness placed in the same position as physical illness.
Substantial Commonwealth increase in the $5 subsidy a day per public bed pensioner patient in general hospitals.
Ten per cent of Commonwealth revenue to local government for general activities which now include social welfare, health, conservation and other community needs. Commonwealth subsidy for the waiving of rates for pensioners.
Commonwealth Government to increase the non-repayable grant to the States for low rental home units for pensioners.
Royal Commission or other form of public enquiry into Australia’s social welfare structure that Australia may be brought into line with accepted world standards of the most advanced countries.
And your petitioners, as in duty bound will ever pray.
Petition received and read.
– Will the Minister for Health tell the Senate what was the result of the meeting of the Australian Drug Evaluation Committee, which 1 understand was held yesterday, in relation to the matter raised by Dr McBride on the possible hazard associated with the drug imipramine and whether some warning should be required in respect of the use of that drug in certain circumstances?
I am grateful for the question being posed because this is a matter of tremendous importance. In anticipation of the matter being raised here today I have prepared - with an economy of words I hope - a response on it. The first thing I would like to do is to seek leave to table a copy of the statement that was released in Sydney last night, I understand, by Sir William Morrow, the Chairman of the Australian Drug Evaluation Committee.
– Is leave granted? There being no objection, leave is granted.
– Could it be incorporated in Hansard?
– I would be perfectly willing that it be incorporated in Hansard. I think it is quite proper that it should be. 1 seek leave accordingly.
– Is leave granted? There being no objection, leave is granted. (The document read as follows) :
At a special meeting of the Australian Drug Evaluation Committee held in Sydney today, Dr William McBride acknowledged to the Committee that his original statements about imipramine were incorrect.
Of the three cases of birth abnormalities to which he had previously referred, only one baby had amelia (total absence of arms) and two others had a less severe degree of abnormality (shorter than normal arms).
The mother of the first of these babies was said to have taken imipramine during early pregnancy; the mothers of the other two children had not taken imipramine but were said to have taken another tricyclic anti-depressant. In none of these cases have full details been made available even now to my Committee.
Without detailed information no meaningful assessment can be made as to whether this, other drugs or other factors are involved.
It is well documented that birth abnormalities of the kind referred to by Dr McBride have occurred as far back as the 19th century - in other words before the advent of modern drugs.
A study of 20,000 others from five teaching hospitals in Sydney and Melbourne over a period of twelve months showed that 159 babieshad been born with limb abnormalities other than congenital dislocation of the hip and club foot. In none of these could tricyclic anti-depressants be invoked as causal agents. These figures are in general agreement with data the Committee has received from other countries such as New Zealand, the United Kingdom, Sweden and Germany. A special study now in progress in Ireland provides further support.
My Committee has knowledge of thirty women in Australia treated with imipramine in early pregnancy in none of whom were foetal abnormalities of any kind recorded. One other case, a condition of excessive bony fragility (osteogenesis imperfecta) occurred. These figures should be seen against background that three babies in every 100 babies born suffer from a major conjenital abnormality from causes unknown.
The Australian Drug Evaluation Committee after a full review of all available information local and overseas can see no reason to alter its previously held views on the use of imipramine during pregnancy. These views were formulated as a result of investigations initiated eighteen months ago into not only imipramine but all anti-depressants. These are as follows:
Safe use of imipramine during pregnancy and lactation has not been established. Therefore, in administering the drug to pregnant patients, nursing mothers or women in child-bearing age the potential benefit must be weighed against the possible hazards.
Animal reproduction studies are inconclusive insofar as only doses which produced toxicity in the mother animal had an adverse effect on the foetus.
There have been clinical reports of congenital malformation associated with the use of this drug but a causal relationship has not been confirmed.
These recommendations are included in draft requirements for the product literature for imipramine, other tricyclic anti-depressants and phenothiazines approved by the Committee at its meeting last December. All manufacturers will be required to include this warning in product literature and a letter to this effect will be circulated to the medical profession. The question of labelling on the container as dispensed was considered by the Committee. This is a complex subject and is being explored in depth.
The events of the past week do serve to emphasise that a great degree of caution is required in the prescription of all drugs during the early stages of pregnancy. Despite the most intensive preclinical testing, it is impossible to predict with absolute accuracy reactions in humans from experimental work with animals.In the use of any drug, the ratio of potential benefit versus possible risk must be carefully weighed. Finally. I ‘would emphasise that the Committee has been keeping under close observation the effects of this and other drugs and urges all doctors to report immediately any abnormal reactions.
– Honourable senators will be aware that the Australian Drug Evaluation Committe met yesterday to consider information provided by Dr William McBride concerning a possible link between the anti-depressant imipramine and birth abnormalities. In order to assist honourable senators in this matter, Mr President, with your concurrence and with the concurrence of the Senate I have tabled and had incorporated in Hansard a statement that was issued by the Chairman of the Australian Drug Evaluation Committee, Sir William Morrow, following that meeting. I have had discussions this morning with the DirectorGeneral of Health, who was present as an observer during the Committee’s meeting, and as soon as question time concludes I will be speaking to him again on this matter. However, 1 should say that at this stage certain actions based on the conclusions reached by the Committee during its meeting have already been decided upon or initiated.
Firstly, cables are to be sent - some have been sent already- to the World Health Organisation and to the health authorities in other countries, . notably the United Kingdom and the United States, informing them of the Committee’s report. Secondly, the health authorities in all Australian States have already been notified of the Committee’s report. Thirdly, letters will be sent immediately by the Director-General to all Australian doctors, informing them of the Committee’s report. This very big task is already in train. Fourthly, a similar letter will be forwarded as soon as possible to the Pharmacy Guild, with a request that information concerning the Committee’s report be distributed to all pharmacist members of that Guild. Fifthly, all manufacturers of imipramine and similar antidepressants are being informed of the requirement for the inclusion of appropriate warnings in promotional literature on those products.
It is my belief that honourable senators will obtain whatever information they require from a study of the Committee Chairman’s Press statement which I have now tabled and had incorporated in Hansard. However, it might be useful if I were to refer specifically to one of the findings referred to in the statement, namely - and I want to be careful about this because of the way it is expressed:
Safe use of imipramine during pregnancy and lactation has not been established. Therefore, in administering the drug to pregnant patients, nursing mothers or women in child-bearing age the potential benefit must be weighed against the possible hazards.
That is one of the more significant findings of the Committee. I would like to repeat it:
Safe use of imipramine during pregnancy and lactation has not been established. Therefore, in administering the drug to pregnant patients, nursing mothers or women in child-bearing age the potential benefit must be weighed against the possible hazards.
I believe that it also would be useful if I were to point out to honourable senators that the Australian Drug Evaluation Committee is established under Commonwealth legislation and has 7 members, 6 of whom are eminent medical practitioners, including 4 who are specialists in clinical medicine and 2 who are specialists in clinical pharmacology. The seventh member is a professional pharmacologist. Honourable senators will recall that last Tuesday, 7th March, Senator Byrne directed a question to me concerning the general procedures operating within Australia and internationally in the evaluation of drugs and the exchange of relevant information. In reply 1 undertook to provide a paper giving a broad outline of what is done in Australia and internationally concerning this matter. That paper is in the course of preparation. I hope to be able to provide it for the information of honourable senators during the next week of sittings .
– I desire to ask a question of the Minister representing the Minister for Labour and National Service. Did the Minister for Labour and National Service state in his speech to an employers’ organisation last week that the applications of the unions seeking to de-register to join the much publicised amalgamation were lodged with the Registrar on 7th January? If so, was the Minister the victim of wrong advice? Were the applications lodged on 22nd December? Was the contrary advice on the date given to the Minister because the union’s case would have been adversely affected if fines had not been paid on 22nd December when the unions lodged their applications.
– The honourable senator’s question refers to a matter which has assumed quite some prominence in the industrial field. Unfortunately I am asked to confirm reference by the Minister to particular dates. I do not pretend to have a memory so precise that I can recall particular dates in relation to this matter. I appreciate the relevance which the dates have to the payment of fines. The exact date of payment of those fines does not come to my mind. I shall have the question referred ot the Minister for early consideration.
– My question is directed to the Minister for Health. Actually, the first part of it relates to his portfolio of Health and the other part is asked of him in his capacity as Minister representing the Treasurer. Has the Minister noted that Dr Fowler, the man who first isolated the acanthamoeba responsible for meningitis, is reported to have stated that this organism exists in all Australian water supplies but that it is not likely to multiply to dangerous proportions except under hot conditions such as in Port Augusta, South Australia, where the surface water pipeline is sometimes subjected to intense sun temperatures? I ask the Minister whether his Department will take steps to ensure that water supplies in the Northern Territory are not a danger to public health? Secondly, as it appears inevitable due to this problem that the South Australian Government will have to provide filtration for water supplies from the River Murray at an estimated cost of between $35 and $40m will the Minister give consideration to recommending to the Commonwealth Government that a special grant or subsidy be provided to assist the State in this expenditure?
– It is true that it is a function of my Department lo provide advice on the public health aspects of water supplies in the Northern Territory. However, immediate responsibility for the provision and supervision of public water supplies in the Territory rests with my colleague the Minister for the Interior. Nevertheless I shall put the question to the 2 departments concerned. I should like to come up with some more definitive answer insofar as the question relates to the Northern Territory either through my Department or through the agency of the other Department. But I will not walk away from the question as it is posed. So far as the second side of the question in South Australia is concerned, particularly with regard to what should be done, to a degree that is hypothetical. There again we would need to have more information about it.
In any event the provision of filtration plants for water supplies for Adelaide, from whatever source, is a matter for decision by the South Australian Government. Finance for that work would primarily be within the responsibility of the State Government. Putting aside undetermined questions, I think I said in response to a question on Tuesday that if a Premier of a State believes that his State is suffering from some emergency, disaster, calamity or other situation which is beyond the resources of his State but is within the sovereignty of the State, there is a pipeline to the Prime Minister. He can raise the matter with the Prime Minister. This course has been followed frequently. We recall circumstances in Queensland and Tasmania in contemporary times. It seems to me that that is the procedure that should be adopted. There are of course some elements in the question relating to water, the amoeba in it, and the effects of heat on water pipelines which have to be examined urgently and currently.
– Is’ the Minister for Health aware that Dr MacDonald said on television last night that he regarded the judge appointed to inquire into the common fee as being an adjudicator rather than an arbitrator? Is not an adjudicator a person with no power or right to enforce his decision, whereas an arbitrator has these powers of enforcement by prior agreement? Is the Minister concerned about the situation in which one side in this dispute, the Government, has declared that it will accept the judge’s decision while the other side, the doctors, have refused to be bound by the decision?
I do not have the advantage of having seen the telecast referred to or of having read a transcript of what the Federal President of the Australian Medical Association said. No doubt a transcript will be made available to me today. I want to make something clear. Having put down the broad pattern of the appointment of the arbitrator and the broad pattern of the terms of reference, as I said last, night there are still some discussions that I, as the responsible Minister, need to have with Mr Justice Kerr before the precise- terms of reference are put down. Therefore it would be inappropriate for me to canvass certain attitudes or views. That will apply, as I see it, through the period of about 6 weeks until the end of April, the time by which the Government has requested that the report be provided.
With those qualifications and’ having adopted that degree of reticence, I feel I should say some things to clarify the situation. The arbitration process decided on by the Government in relation to common fees under the medical benefits scheme is not arbitration of a dispute between an employer and an employee. The situation is that in 1970 the Government reconstructed the medical benefits scheme in such a way that medical benefits were specifically related to common fees charged by doctors in each of the States. The Government agreed as part of the arrangement that the common fees would be reviewed at 2-yearly intervals. The first review was made with effect from 1st July 1971. There have been differences of opinion within the medical profession in New South Wales as to what the most common fee should be for general practitioner consultations and home visits from 1st July 1971. The fees advised by the Federal Council of the AMA to the Government were as follows: For general practitioner surgery consultations, $3.80; for general practitioner home visits, $5.05. The fees recommended by 16 out of the 27 local associations of the AMA in New South Wales to their members were in excess of those figures.
The Government and the Federal Council of the AMA agree that unless there is a significant observance of the most common fee the present voluntary health scheme cannot survive. In this situation the Government wants to have established, by arbitration processes, what are the fair and reasonable fees in New South Wales for general practioner surgery consultations and home visits for the purpose of the medical benefits scheme for the 2-year cycle which commenced on 1st July 1971 and will run to 30th June 1973. The factors which the arbitrator will examine are those which operated up to 30th June 1971. The date of the next 2-yearly general review of medical fees and benefits for all States under the 2 items of the schedule referred to will be 30th June 1973. With regard to sanctions and penalties, I draw the attention of honourable senators to that part of my statement delivered last night where I said:
After implementation of the arbitrator’s finding within the medical benefits schedule - which sets the benefits to be paid for particular medical services - firm assurances will be sought from the Australian Medical Association that there will be general observance of the fees so that they will, in fact, become the most common fees.
The Government also has decided that if, after implementation of the arbitrator’s finding, there is a failure by the medical profession to achieve a high level of observance of the common fees, other measures will be considered.
Finally, I draw the attention of honourable senators to the fact that 1 have undertaken to be in attendance at the second day of the sittings of the federal body of the Australian Medical Association next Sunday morning.
– I direct a question to the Minister representing the Minister for Shipping and Transport. Last week I asked him a question in relation to the oil spill in the off-shore areas of Victoria. I now ask:
Was any research undertaken with regard to this oil spill and, if so, what were the findings?
– Yes. The reported oil spill proved not to be an oil spill but to be algae on the sea which quite rapidly passed away. Knowing that the Senate has interested itself in this matter, I obtained some information which this question allows me to present. There are various government authorities in the world looking into the dispersement of oil spills. The leader in the field is the Ministry of Trade and Industry at Warren Springs in the United Kingdom. The Department of Shipping and Transport in Australia is also concerned. It has set up an interdepartmental committee which met last week to draw up specifications for the best type of dispersant to stockpile. The committee comprises representatives of the Department of Shipping and Transport, the Commonwealth Scientific and Industrial Research Organisation, the Department of Navy, the Department of Primary Industry and the Department of the Environment, Aborigines and the Arts. This committee is now advising the Commonwealth on the best type of dispersants and the best method of utilising them. I understand it is in touch with the people at Warren Springs.
– I ask the Leader of the Government in the Senate whether he will have urgent inquiries made and report to the Senate without delay whether it is a fact that yesterday in Singapore Senator Sim, while returning home as part of an overseas delegation from this Parliament, described as stupidity Prime Minister McMahon’s statement last Sunday that an invitation from Peking for a visit by an Australian Minister would be welcome? Did he also state when referring to recent attempts to make contact between China and Australia that he was appalled by the thought that 2 businessmen brothers could have been acting for the Australian Government in China or that their opinions seemed to carry weight? Did he further state that sending Mr Andrew Peacock, Minister for External Territories, to China could be really stupid? Did he say ‘Besides, when did Australian foreign policy rest in the hands of 2 Manchester Jews’, apparently referring to the 2 brothers Kibel? Did he state that the Australian Parliament and the people were singularly ill-informed and uninformed about our foreign policy and that the average person just cannot see where he would fit in when it comes to dealing with China?
I have no knowledge at all of the reported statement to which the Leader of the Opposition has referred. Therefore I cannot comment on it or on any of the interpretations that he has chosen to put on it. For those reasons the question must go on notice.
– I call Senator Marriott.
Opposition senators - Hear, hear!
– My question is addressed to the Minister for Civil Aviation. Is the Minister aware that the revolving message and information board at Melbourne’s Tullamarine Airport has been removed from the main passenger concourse to the ground floor departure lounge? Will he consider my suggestion that this useful piece of equipment should be returned to the concourse, which is used by all visitors as well as by passengers arriving, departing and in transit, whereas in the present position it is normally seen only by passengers leaving the airport by bus, taxi or private vehicle.
– I am sure the honourable senator was delighted with the tremendous warmth that greeted the breaking of his radio silence. I am grateful to him for observing the change which has been made in the positioning of the message roundel atTullamarine Airport. I will inquire as to why it was removed from its previous position and investigate whether it was better situated there.
– I ask the Minister for Civil Aviation: Has a survey been carried out recently by the Department of Civil Aviation in the Callington-Monarto area near Murray Bridge in South Australia with the view to establishing a commerical airport in that region?
– It is customary for the Department of Civil Aviation to investigate sites in every State and Territory of the Commonwealth of Australia well in advance of a potential need for an airport. I should imagine that that has been done in this case. More precise information will be sought and provided to the honourable senator.
– I direct a question to the Minister representing the Prime Minister. It is appropriate that I should direct it to Senator Sir Kenneth Anderson because he was the distinguished leader of a parliamentary delegation, of which I had the privilege of being a member, to the Council of Europe. It was an occasion when Australia was given the oppotunity to speak, through its delegation, at the Council of Europe. Since then we have assumed full membership of the Organisation for Economic Co-operation and Development. With that prelude, Mr President, 1 direct the following question to the Minister -
– Give us the names of the members of the delegation.
– Senator Mulvihill was another distinguised member of the delegation, as was Senator Davidson. I ask: May I presume that the Minister is aware of the announcement by the Secretary-General of the OECD, Mr van Lennep, . that, firstly, a commission of that body will shortly be visiting Australia to make an assessment of tht Australian economy and, secondly, that the OECD will be making an assessment in the near future of the New Zealand rural economy and at a later date of the Australian rural economy?, Does the Minister not consider that art assessment of the rural economy should be made by a suitable Australian commission, as has been urged in the Parliament’ and elsewhere by the Australian Democratic Labour Party over many years and which has always been resisted by the Government and the Opposition?
– First of all, I am grateful , to the honourable senator for the gracious compliment he extended to me fey saying that I was the distinguished leader of Australia’s delegation on this occasion. So much water has passed under the bridge since then that I have almost forgotten about this matter insofar as my own personal contribution is concerned. If I may say so, I had a very distinguished all-party delegation accompanying me. We ali made stirring speeches in the plenary session. The main purpose of our contribution was directed towards aid and Australia’s part in the world scene in providing aid. Some observations about this subject were also made by other countries.
– How much did the trip cost?
I was in the happy position of playing a dual role in that I was the leader of the delegation and then I had to break off from the delegation to take up certain responsibilities in my capacity as Minister for Supply. I must admit that I became very ill and my wife became very ill also whilst we were in London. I had to cut my visit short in order to return to Australia.
I would like to give some thought to the question put by Senator Byrne. I think that it is a wonderful thing that a commission from the OECD is coming here. Having said that, I would like to put to study and contemplation in my own right the points raised by Senator Byrne in relation to an examination of the rural scene. I will respond to this question during the next sitting week of the Senate.
– I ask the Minister representing the Minister for National Development a question. In view of the big increase of the proved oil reserves in Australia as mentioned in today’s Press will the Minister inform the Senate what percentage of the nation’s oil requirements is now produced from Australian oil wells? Is this percentage likely to increase?
– To the best of my knowledge it is approximately 69 per cent. I do not know whether the figure has changed much in the last few months. I do not know whether the increased state of the reserves has added anything to (his. Honourable senators should bear in mind that some of the new reserves are located in areas that have still yet to be fully developed and therefore they may not be being drawn out to help the situation. The problem is one in which there has to be imported some part of what might be called the heavy end of the requirement against the Australian production which fundamentally is on a light end. What I will do for the honourable senator is to get the precise information for him and let him have it.
– My question is addressed to the Minister for Civil Aviation. By way of preface I state that the new $700 return air fare to Europe is seen by some as a threat to Great Barrier Reef holiday resorts. As 15 per cent of the visitors to the Great Barrier Reef last year were Americans, will the Minister tell the Senate when discussions on charter flights from the United States of America into Australia are likely to be finalised so that a boost can be given to our foreign exchange earnings?
– The negotiations are very nearly completed. I had hoped that I might be able to have them finished today but this has not been possible. With a little bit of luck, I will have them concluded at the weekend. I think that they will prove to be satisfactory to the honourable senator. Like him, I am concerned to develop the interest, particularly of Americans, in the Great Barrier Reef area. I think that he will have noted at various time when I have spoken and answered questions that I do have such a concern. But I must have a total view of the situation and particularly the extent to which increased charter flying may erode the operations of the scheduled carriers. This is now being evaluated. I would hope therefore that early next week we will have the result finalised.
– Has the AttorneyGeneral had the opportunity to study the report of the Law Council of Australia on uniform consumer protection legislation? Bearing in mind the very real importance of further and more effective steps to be taken to provide proper consumer protection throughout Australia, will the Minister indicate as soon as possible his attitude to the report and its recommendations?
– I have not yet studied the report of the Law Council committee to which the honourable senator has referred, but I have seen extensive Press reports giving an indication of the scope of the work which has been carried out by this committee. I think that the Australian people will be greatly assisted by the implementaton of some or all of the recommendations which have been made. I use that expression because obviously the report must be given attention and I understand that that attention will be given at the meeting of the Standing Committee of Attorneys-General to be held in April.
I ought also to say that this work was initiated by the Standing Committee of Attorneys-General with the co-operation of the Law Council of Australia which voluntarily has produced a remarkable piece of work. I know that the members of that committee have applied themselves tremendously actively over the period of this operation. The Press reports indicate the quality of the work which has been produced. The Victorian Attorney-General indicated that, for the Standing Committee of Attorneys-General, he was prepared to have the report printed as a parliamentary paper. It was tabled in the Victorian Parliament this week. I am quite sure that intensive study will be given to it by the Attorney-General in each State, by my Department and by myself so that we can give attention to the substance and the recommendations of the Law Council committee as soon as possible.
– My question is directed to the Minister for Air. Is it a fact that, resulting from discussions between the Royal Australian Air Force and the United States Air Force, a 2,000 miles per hour Lockheed aircraft, which is stated to be the technical successor to the U2 spy plane, is likely to be stationed at Elizabeth air base in South Australia to study upper atmosphere weather patterns? As the Air Officer commanding Edinburgh air base is reported on 4th March as having stated that he had no knowledge of the proposal, is- the Minister able to give any information in relation to arrangements which have been made to base the aircraft at Edinburgh or at another RAAF base in Australia?
– I understand that there are reports that certain spy planes are to be stationed at Edinburgh. Those reports are not correct. It would be true to say that the defence science staff of the Department of Defence, in conjunction with the Royal Australian Air Force, has had talks with the United States Air Force about the possibility of a research programme being carried out in the upper atmosphere by high flying aircraft.
– My question is directed to the Minister representing the Minister for Foreign Affairs. American initiatives last year on China and economic policy caught Australia by surprise and created problems for Canberra. The problems were resolved satisfactorily, although they underline the need for continuing close consultation between Washington and Canberra. What were the good reasons for the United States not consulting with Canberra regarding its plans in such important moves?
– There seems to be a great deal of confusion in the honourable senator’s mind, as expressed in the language that he used. As an indication of the degree of consultation that is currently and has been taking place and as an indication of the usual experience between the 2 countries let me remind him that an advance copy of Secretary of State Rogers’ statement of 2 days ago was given to the Minister for Foreign Affairs. That statement took the occasion to remind the 3 countries which are partners in the ANZUS Pact of the importance of and the need for the maintenance of that Pact for the 3 countries concerned. The honourable senator should know that there was the closest consultation between the 2 governments about statements relating to President Nixon’s visit to China. Those statements indicated a continuing unity of purpose with regard to that important facet of our foreign affairs policy.
– I direct a question to the Minister representing the Treasurer. With the increased use of liquefied petroleum gas as a motor vehicle fuel, is the Government likely to introduce a fuel tax on liquefied petroleum gas which is used as a motor vehicle fuel similar to the tax now applying on petrol? If this is so, will the Government endeavour to keep the liquefied petroleum gas in a price range favourable with that of the price of petrol, to give every encouragement to its use as a motor fuel and as a counter to air pollution, particularly in the cities?
– I have been informed that excise duty on liquefied petroleum gas is currently being studied by an interdepartmental committee. When the report is available, naturally the Government will give consideration to the matter. It would not be appropriate for me to anticipate the outcome of the Government’s examination of that matter. However, I assure the honourable senator that the air pollution control aspects resulting from the use of this fuel will be taken fully into account in the Government’s examination of it.
– My question is addressed to the Leader of the Government in his capacity as Minister representing the Prime Minister. Was the recommendation for the granting posthumously of the George Cross award to the late Errol John Emanuel, previously District Commissioner for the East New Britain District of Papua New Guinea, and the release by the Prime Minister of a Press statement on 17th January 1972 on the granting of the award for the fine courageous life of the deceased, a proper action in view of the fact that 18 New Guinea natives were facing trial for having murdered that person? Could not such a statement as ‘he’ - meaning the deceased - never wavered from his task, choosing to expose himself to danger rather than risk the lives of his fellow officers and the police, culminating in his ultimate death on 9th August 1971 while carrying out his official duties’, a statement which was contained in the Press release, have the effect of being prejudicial to the accused, particularly if their defence was one of provocation or self-defence?
In this context, where there has been a posthumous award to the relatives of a person who has earned one of the highest orders that any man can hope to achieve, I shall not reflect on the question. I shall say no more about it.
– My question is addressed to the Minister representing the Minister for the Environment, Aborigines and the Arts. In view of the danger of the crown of thorns starfish to the Great Barrier Reef, which is one of the great wonders of the world, is any thought being given to the employment of Torres Strait Islanders, who are known as some of the greatest skin divers in the world, so that they may be employed to gather the crown of thorns and thus remove this danger to our Great Barrier Reef?
– I am not aware whether any consideration has been given to what’ has been proposed because I am not sure at present how the danger of the crown of thorns is currently rated. Honourable senators will appreciate that an extensive investigation has been made and that the report of that investigation was presented to the Parliament last year. Subsequently there have been Press reports which, if they are to be accepted, indicate that some of the fears which had been earlier expressed are not being borne out, although certainly there has been a danger. One must accept that there is still some danger to the Great Barrier Reef. I know that the suggestion made by the honourable senator is backed up by an experience of the competence and expertise in this area of the Torres Strait Islanders to whom he has referred. I shall undertake to convey the question and suggestion to the Minister whom I represent.
– I direct a question to the Minister for Health. By way of preface I refer to an answer which the Minister gave yesterday in which he contended that the question of hospitals in the respective States compiling their costing charges was a matter for the State Ministers for Health. I now ask the Minister: If on an earlier occasion he or his predecessor, Senator Greenwood, conferred with the various hospital fund administrators and the New South Wales Minister for Health before hospital fund charges were revised, does it not appear rather loose that certain hospitals in a State can ignore the agreement that was obviously made by the Commonwealth Minister for Health, the State Minister for Health and the funds concerned?
What I said yesterday was, as far as I know, accurate - that the responsibility for fixing fees in the States is the prerogative of State governments. I think it is fair enough to acknowledge the point made by Senator Mulvihill, that sometimes a degree of embarrassment is caused where fees are fixed unilaterally, as is the right of a sovereign State. However, I do not want to reflect upon my relations with State Ministers for Health and State governments in this field, because there is a high degree of co-operation. Indeed, last Thursday and Friday I attended a conference of Health Ministers where all political persuasions were represented. A high degree of cooperation is being given by Ministers for Health all over the Commonwealth. I will have another look at the point raised by Senator Mulvihill. The answer I gave yesterday was accurate, but I appreciate the points made by Senator Mulvihill.
– I ask the Minister for Civil Aviation: Has his Department recently prepared for the Government’s consideration a detailed study of the current 2-airline policy? As the current agreement extends until 1977, is it a fact that the Government intends to extend the agreement before the next Federal election? If so, why is the Government considering this action 5 years before the agreement expires?
– As the honourable senator properly observes, the 2-airline policy expires in 1977. As I think the honourable senator will appreciate, in the administration of this policy one is examining it all the time. I think it has been no secret that since I have been Minister for Civil Aviation I have been examining all the time the facets of the 2-airline policy and its operations. I will continue to do so. I look at it on the basis that it seems to serve Australia extremely well. When in due course it needs extending it ought to be capable of some improvement. It is to that area that I direct my attention, as I have done in the past and will continue to do.
– My question is directed to the Minister for Air. Has the Royal Australian Air Force cancelled an order for 18 Iroquois utility helicopters worth $8m? Was the cancellation caused by the absence of adequate base facilities for the helicopters? Has any payment been made in respect of the cancelled order? If so, what was the amount and how much of it is refundable?
Royal Australian Air Force has not cancelled the order for 18 helicopters. The Minister for Defence issued a statement in which he said that delivery of the order has been deferred. Originally the order was for 23 helicopters. Following a review by my Department it was found that we had an immediate requirement for 5 aircraft. Because of No. 9 Squadron’s return from Vietnam we have no immediate use for the remaining 18 helicopters. Consequently the order has been deferred. It has not been deferred because we do not have bases. That is incorrect. No payment has been made on the 18 aircraft whose delivery has been deferred.
– My question is directed to the Minister representing the Minister for the Environment, Aborigines and the Arts. Bearing in mind the evidence given to Estimates Committee B and that Committee’s report to the Senate as to its concern at the slow rate of progress in the Office of the Environment reaching establishment, can the Minister indicate what progress has now been made in bringing that office’s staff up to establishment?
– I am unable to provide an answer to the honourable senator’s question. I shall convey it to the Minister and ask him to expedite a reply.
– Is the AttorneyGeneral aware of a reported statement by the Commonwealth Police Commissioner, Mr Jack Davis, that a stipendiary magistrate refused to issue a warrant but told police that they had ample powers to arrest an offender? If the reported statement is true, will the Minister ascertain who the magistrate is and the grounds upon which he refused to issue a warrant and inform the Senate at the earliest opportunity? I also ask the AttorneyGeneral: Is it now intended that the normal procedures of summons and warrant are to be bypassed for the use of the Crimes Act against people alleged to be in breach of the National Service Act?
– I have seen the statement attributed to the Commonwealth Police Commissioner and reported in the Melbourne ‘Age’ of today. I am unable to say whether that report is accurate as I have not had the opportunity to speak to the Commissioner to ascertain from him what did happen in the Melbourne Court of Petty Sessions on Tuesday and Wednesday of this week. However, I do know generally the events which have occurred. On the broader question which the honourable senator asks, he is aware that there is a provision - there always has been a provision - in the Commonwealth Crimes Act whereby in certain circumstances a constable may arrest without warrant. One of those circumstances is that he has reasonable grounds for believing that a person has committed an offence. A second of the circumstances is that he believes that the issue of a summons would not be productive of the result which normally a summons produces. In those circumstances he may arrest without warrant.
There has been developing in this country a small group of persons who, in respect of the National Service Act, have indicated a positive refusal to comply with the provisions of the Act and given a positive indication that they will not respond to any summonses which are served upon them, with consequent problems for the police force and an expenditure of public money in seeking to locate and apprehend them. I believe that these are circumstances to which the provision of the Crimes Act to which Senator Brown has referred has application. I am very pleased to see that the Commonwealth Police have decided to utilise this provision in those cases in which the conditions for its application can be sustained. The decision was taken by the Commonwealth Police without any prior consultation with me, as a Commonwealth Police excercise. But let me say that I fully applaud and endorse the initiative that has been shown.
– - I ask the Minister for Health: Do I take it that the arbitration . on medical fees as announced by the Minister last night is to be in fact, a review of the review which took place in May of last year as announced by his predecessor,. Senator Greenwood, on 7th May 1971 and which it was then stated would be effective . for a period of 2 years? When the Minister says in his statement that it is not proposed that the 2- year cycle be varied as a result of putting the New South Wales fees’ to arbitration, is the Australian public to assume that if the arbitrator determines, that there should be an upward movement . in fees such an increase will not come into effect until 1st July 1973?
No. I think that Senator Douglas McClelland could not have read or listened attentively to my statement last night. He will find words in it, I think - I do not have the complete statement in front of me - about no retrospectivity up or down. It is true that in the statement it is said that the Government will accept the decision of the arbitrator, having regard to the qualifications which I made earlier. The purpose of this arbitration is really to settle a disputation in relation to the base line at the start. This was the base line which really commenced from 1st July 1971 and which was to continue for 2 years.
– We were told then that it was not.
Now, the honourable senator is starting to add a bit more as he goes along on the run. I am responding to the question as put. I must say that the position is quite definite and I have added some information this morning to make sure that everybody understands. The purpose of the arbitration is to resolve a matter in New South Wales relating to items 1 and 4 in the schedule which deal with surgery visits and home visits. In New South Wales the disputation arose as to the start line which operates from 1st July 1971 and, as in the other States, carries along until 1973 when there is an obligation to have a review.
– I ask the Minister for Civil Aviation whether he can inform the Parliament of the amount of fallout pollution by measure which can enter the atmosphere when the Concorde supersonic jet airliner is in flight? Can he also give similar details regarding the various types of pure jet passenger aircraft which are now used by major Australian airlines?
– It is quite obvious that some part of that question will call for detailed information and tabulation. The best information that I can recall to memory is in relation to a study done over the city of New York which is one of the busiest if not the busiest city in the world for aircraft taking off and landing. The information I have is something like this: Of the total pollution over New York, a little over 1 per cent was contributed by aircraft. The balance of the pollution was caused by all sorts of other things such as motor cars. For its part, the Concorde has an engine which is relatively smokeless so that its contribution to this problem will have to be ascertained from people who know more about the situation than I do as will the balance of the information sought about aircraft patterns in general.
– I direct my question to the Minister representing the Minister for Primary Industry. With the recently improved wool prices and the effective operations of the Australian Wool Commission during the very depressed period of wool prices last year, which operations were of so much benefit to wool growers and the economy generally, can the Minister say what stocks of wool are presently held by the Australian Wool Commission and what amount has been sold? Have any of the previous critics and prophets of doom - including members of the Australian Labor Party - about the operations of the Australian Wool Commission since made admissions to the Minister that their criticisms were ill-founded?
– I point out to the honourable senator that only from time to time does the Australian Wool Commission make information available as to the amount of stock which it is carrying. The last announcement about the carry-over of wool was made on 11th February. At that time the Commission announced that it had 570,000 bales which it had bought in under the reserve price operation and 130,000 bales which it had purchased under the price averaging plan. That particular lot of wool would go into the No. 4 pool under the price averaging scheme.
There have been critics of the Australian Wool Commission but I think it has become quite obvious to those critics now that the Commission has played a very vital role in connection with the prices that were received by growers last year. I want to make this point: Between July and December 1971 the Commission supported the market by bidding on 48 per cent of the offerings. However, it brought in only about 45 per cent of the wool for which it bid. It has been estimated by the Commission that the gains to growers as a result of trade buyers over-bidding the Commission were as much as about 4.7c per kilogramme. I think the figures speak for themselves and justify the operations of the Commission.
– I wish to ask a question of the Minister representing the Minister for Social Services. I am sure he will recall my question of some days ago concerning an interpretation of the provisions of the Social Services Act which had been applied in such a way as to deny either sickness or unemployment benefits to some former members of cer’ain nursing or teaching religious orders. The Minister undertook to get an early reply from his colleague. Because of the continuing denial of benefit to people in this category, can the Minis er again fake up the question with the Minister for Social Services with a view to have this anomalous situation corrected quickly?
Sena’or GREENWOOD - All I can undertake to do is once again to convey the honourable senator’s question to the Minister for Social Services. I did convey his original question. Whether that will mean thc correction of what the honourable senator has called an anomaly is a matter of policy for the Minister to determine. T shall ensure that the Minister is aware of ‘he honourable senator’s continued interest in and concern about this matter.
– I ask the Minister representing the Minister for National Developmen’ whether it is true that an attempt by 10,000 Australians to buy land in the Simpson Desert area for 20c an acre in order to retain it as natural parkland and thus prevent its sale to American interest has been rejected. Is it a fact that the land, 3 pastoral leases near Bedourie, which is 1,200 miles west of Brisbane, is the subject of higher offers from American interests? Will the Government take steps to ensure that this land does not become another part of Australia taken over by overseas owners?
– I do not know the answer to this question. I do know the Simpson Desert. I will get an answer for the honourable senator from the Minister for National Development.
– I direct my question to the Minister for Health. Are we to assume from the answer he gave this morning that there will be a fur: her review of the common fee for medical practitioners on or about 30th June 1 973?
Senator Sir KENNETH ANDERSONYes. That is no new departure. That is the condiion under which the scheme was entered into in respect of all States of the Commonwealth.
– You want a half way house.
– Every time 1 rise to- answer a ques ior Senator Douglas McClelland wants to add something. I suggest that that is inappropriate. If the honourable sena or asks a question I answer it or ask for it to be put on notice. I do not want to be subjected to a series of interruptions, by. one particular honourable senator every time I attempt to answer a question on health.
– How does the Minister representing the Minister for the Interior reconcile the spirit of Estimates discussions, where answers in depth are given, with the failure until now of the Minister for the Interior to release the findings of an expert committee warning of mining depredations adjacent to the Northern Territory Top End National Park when the report in question was in the hands of the Minister late last year?
– This question contains a proposition that I should put myself in a situation of passing judgement on a Minister in another place and asks me to reconcile his general pattern of administration behaviour. I certainly could not do that and I would not attempt to do it. However, I shall direct the question to him.
– I direct a question to the Minister for Civil Aviation. In view of the reported possible damage caused by supersonic flights over land areas which, in a reply on 22nd February to a question from Senator Douglas McClelland, the Minister said was a question for study by the Academy of Science, will he give the Senate an opportunity to consider any findings of the Academy on this matter before permission is given for supersonic flights in any corridor over Australia?
– It is well known from the number of answers that I have given to a number of questions on this subject that I am still awaiting the report of the Academy of Science. When I have studied the report I will give consideration to the extent to which it may usefully be made available to people who have an interest in this matter.
In the Senate on 26th October 1971 Senator Webster asked me, as Minister representing the Treasurer, a question concerning interest rates. The Treasurer has provided the following information in reply to this question:
Monetary policy is one of the more important and flexible instruments available to the Government to stimulate or moderate economic activity as the situation may require. Until recently monetary, policy, in conjunction with fiscal policy, had for some time been aimed generally at moderating Inflationary pressures that had developed in the economy. To the extent that such action resulted in a reduction in the rate of growth of loanable funds, it contributed to a somewhat higher level of interest rates, including bank interest rates. However, I would mention that other factors have also been important in determining movements in interest rates over recent years, including in particular the steadily increasing competition for funds within the economy.
While it is not possible to quantify in precise terms the impact of monetary policy, or specifically higher bank interest rates, on the economy, T consider that such policy played a very significant role in moderating the inflationary pressures that were emanating from demand forces in the economy.
I am aware of the falls in interest rates in certain overseas financial markets, including the reductions in the official discount rates in Germany and Italy which Senator Webster referred to in his question. While reductions in overseas interest rules should not necessarily be seen as creating a precedent for interest rate adjustments in Australia, substantial action has been taken on the monetary front in recent months. Taking into account the lower yields for the February loan, yields on all government securities have been reduced by 1 per cent or more since last September. In addition there have been significant reductions in bank interest rates with the maximum overdraft rate being reduced by 0.5 per cent per annum and bank deposit rates falling in some cases by up to 1 per cent. Action has also been taken to remove the restraints on bank lending and a large release was made from Statutory Reserve Deposits in late December.
In the Senate on 11 November 1971 Senator McManus asked me, as Minister representing the Treasurer, a question concerning interest rates. The Treasurer has provided the following information in reply to this question:
The Government has been paying particularly close attention to developments in overseas financial markets in recent times and I am fully aware of the falls in interest rates in certain overseas countries to which Senator McManus referred in his question. While such reductions should not necessarily be seen as a precedent for interest rate adjustments in Australia, substantial action has been taken on the monetary front recently. Taking into account the lower yields for the February loan, yields on alt government securities have been reduced by 1 per cent or more since last September. In addition, there have been significant reductions in bank interest rates with the maximum overdraft rate being reduced by 0.5 per cent per annum and bank deposit rates falling in some cases by up to 1 per cent. Action has also been taken to remove the restraints on bank lending and a large release was made from Statutory Reserve Deposits in late December.
These important measures, in conjunction with the fiscal measures also announced recently will have the effects of bolstering the level of economic activity, reducing borrowing and other interest rates in the private sector, increasing the availability, of finance to the private sector, and of providing a boost to confidence on the part of business and the community generally.
(Question No. 1718)
asked the Minister representing the Minister for Education and Science, upon notice:
Sena’or WRIGHT - The Minister for Education and Science has supplied the following answer to the honourable senator’s question:
(Question No. 1827)
asked the Minister representing the Minister for Education and Science, upon notice:
– -The Minister for Education and Science has provided the following replies to the honourable senator’s question:
These arrangements vary from State to State.
New South Wales
Government secondary schools receive n cash grant with which they purchase books of their choice direct from booksellers, and in addition are able to select books from a list prepared by the State Education Department up to a certain value depending on the size of the school. Books selected in this way are centrally purchased, with substantial savings thus effected.
All High and Technical schools received a cash grant basically determined at the rate of $1 per pupil, but special loadings applied to small and/or disadvantaged schools.
Schools are allocated a grant related to existing bookstock, which they use to purchase books directly from booksellers. Invoices are submitted to the Education Department which pays the accounts after approving the lists of purchases.
Schools select books from lists prepared by the Education Department and purchases are made centrally by tender. Allocation of grants is related to enrolments with a loading for small schools with matriculation classes.
Schools select from Education Department lists up to a value determined by enrolment and need for bookstock. Purchases are made centrally by tender.
Schools select from Education Department lists and purchases are made centrally.
(Question No. 1880)
asked the Minister representing the Minister for the Army, upon notice:
Minister for the Army has provided the following answer to the honourable senator’s question:
(a) A 3-acre site was acquired in 1970-71 and the proposal for the construction of a depot was included in the draft design lists 1970-71 and 1971-72. On each occasion, however, financial limitations and the existence of higher priority items prevented construction of the depot.
(Question No. 1829)
asked the Minister representing the PostmasterGeneral, upon notice:
When is it anticipated that the Taree telephone exchange will be converted from manual to auto,matic operation.
– The PostmasterGeneral has provided the following answer to the honourable senator’s question:
It is confidently expected that the automatic exchange at Taree will be brought into service on the 21st March, this year.
– For the information of honourable senators, I present a report by the Superannuation Board together with the report presented to the Board by the actuary appointed to conduct the ninth quinquennial investigation of the superannuation Fund as at 30 June 1967.
– On behalf of the Public Accounts Committee, I present the One hundred and thirty fourth report. Mr President, I have a statement and I seek leave to have it incorporated in Hansard.
– Is leave granted? There being no objection, leave is granted. (The document read as follows) :
Honourable senators will recall that in November, last year I tabled the one hundred and thirtythird report which relates to expenditure from the advance to the Treasurer, 1970-71. The onehundred and thirty-fourth report which I am tabling today relates to expenditure from the consolidated revenue fund for that year and covers the remaining items included in the Committee’s examination of the expenditure results of departments. In examining expenditure from the consolidated revenue fund the Committee has sought to ascertain whether or not the principles relating to the formulation of estimates have been adopted by departments. These principles, which are included in Treasury direction 16/9, have been set out in chapter one of the report. The Committee has also sought to ascertain whether or not the departments concerned have maintained efficient administration in the expenditure of funds under the items selected for public inquiry.
In considering this aspect of its inquiry the Committee has taken into account the change in financial policy which occurred in February 1971 and which was designed to achieve substantial reductions in Commonwealth departmental expenditure. This change in policy reduced in many cases the amounts which departments might otherwise have spent in relation to : the estimates. Many of the explanations tendered by departments during our inquiry referred to this change is financial policy with its necessary consequential effects on administrative practices and arrangements. In considering these explanations, the Committee has sought to distinguish between the consequences arising from the change in financial policy and other circumstances which affected financial results and administrative performances.
In recent years the Committee has paid particular attention to the estimates and related expenditure of the departments. It has taken the view that as a poor standard of estimating has wide ramifications it has not only been excessive expenditure that has attracted attention but also the overprovision of funds. The Committee has stated that such overprovisions are undesirable, misleading and perhaps unfair to other departments whose financial needs might not have been satisfied. At the same time the Committee desires to emphasise that it does not regard the total expenditure of available funds under a particular appropriation item as an objective to be sought in all circumstances. Indeed such a criterion could give rise to unnecessary and uneconomic expenditure. It could also give rise to the distortion of administrative practices. In this regard the Committee has been critical of departments that have accelerated payments in order to prevent an appropriation from lapsing. Two such cases were reported in the one hundred and second and one hundred and thirteenth reports of the Committee.
As this report and previous reports relating to expenditure from the consolidated revenue fund show, there are explanations for expenditure variations from the estimates which arise from unforeseen circumstances or other factors and are acceptable to the Committee. In this report, however, as in similar reports of previous years, the Committee has found it necessary to refer to cases of unsatisfactory estimating or inadequate administrative performances that have resulted in shortfalls in expenditure. The Committee has drawn attention to these inadequacies where they have arisen. ] commend the report to honourable senators.
Ordered that the report be printed.
Assent to the following Bills reported:
Dairy Produce Export Control Bill 1972 Banks (Shareholdings) Bill 1972
– I present a manuscript of the fourth edition of the Australian Senate Practice by the Clerk of the Senate. The third edition was published 5 years ago in 1967. The work has been extensively revised and brought up to date to include a description of many significant procedural and institutional developments which have taken place in the Australian Senate during the last 5 years.
Motion (by Senator Sir Kenneth Anderson) agreed to:
That the paper be printed.
– Is it desired to rearrange the business of the Senate?
– I desire to withdraw Business of the Senate Notice of Motion No. 1 standing in my name.
– Is leave granted? There being no objection, leave is granted.
Notice of motion by leave withdrawn.
Motion (by Senator Murphy) - by leave - agreed to:
That General Business, Order of the Day No. 33, take precedence of other business at 8 p.m. this sitting, unless otherwise ordered.
– by leave - Honourable senators will recall that the Prime Minister (Mr McMahon), in his statement on the arts in Australia that he delivered in the House of Representatives on 26th October last, said a committee of inquiry would be established to ‘examine the role of the crafts as art forms in their own right, as a widely spread experience of creative processes and as the foundation of good industrial design’. He said the committee would include representatives of the Council for the Arts, the Commonwealth Art Advisory Board and the Industrial Design Council of Australia, who would jointly advise on the committee’s terms of reference. At a meeting of the chairmen of agencies which advise the Minister for the Environment, Aborigines and the Arts (Mr Howson) on support for the arts, it was agreed that our programmes should have the following broad aims: The promotion of a standard of excellence over the whole field of the arts; the widening of access to and understanding and appreciation of the arts in the community generally; the expression of an Australian identity through the arts; and the presentation of Australia’s cultural achievements abroad. These aims we have taken to apply equally to the crafts.
I am pleased to inform the Senate that a committee has now been established to undertake this inquiry into the state of the crafts in Australia. The committee will comprise Mr K, Bonython (Chairman), an art dealer and member of the Australian Council for the Arts; Mr E. Westbrook, Director of the National Gallery of Victoria, representing the Industrial Design Council of Australia; Mr C. Last, sculptor and member of the Commonwealth Art Advisory Board; Mr J. Mollison, Director of the Australian National Gallery: and Mr F. McCarthy, Principal of the Australian Institute of Aboriginal Studies. The crafts are taken to include, but are not confined to. furniture, jewellery, glass, metalwork, pottery and textile construction. The Minister for the Environment, Aborigines and the Arts expects the committee to begin its inquiries immediately. It will gather evidence widely from people and organisations concerned with the crafts and, after evaluating the results, report to the Government on what it sees as the needs and requirements of the crafts in Australia today.
The duration of the inquiry will depend to a large extent on what the committee’s investigations reveal, but the Minister hopes to have some preliminary indication of its findings by September and a final report by the end of the year. One outcome of the inquiry could be to help Australian craftsmen to improve their work and to take greater pleasure and satisfac-‘ tion in it. The Minister expects also that Australians generally will be encouraged to appreciate the Austraiian crafts and take pride in them. Ultimately, it is hoped people in the world markets will see instinctively that’ the products of Australian craftsmanship, including also Aboriginal craftsmanship, are characteristically Australian not because they are marked made in Australia’ but because of a high degree of artistry, skill and style enhanced by high standards of industrial design. In other words, the craft works of Australia will have an Australian image which will make them recognisable as Australian just as one can readily identify the craft works of other countries on display for sale in this country.
– by leave - The Opposition welcomes the statement by the Attorney-General (Senator Greenwood), on behalf of the Minister for the Environment, Aborigines and the Arts (Mr Howson), on this matter. We on this side of the chamber believe that participation in the creative arts and crafts, including exhibition of the arts and crafts, should be actively encouraged and assisted by the Government. The Australian Labor Party, whether in Government or in Opposition, will encourage and support the arts in such a way as to maintain a freedom of expression and allow artists to exercise freely their creative and performing talents. I think we should all seek to ensure that the creative talents of Australians are promoted by providing guidance and assistance to those in not only the field of arts but also the field of crafts. We should be especially careful to see that this applies to new arts and new developments in the old arts and crafts as well as to the traditional ones. We find in the sphere of arts and crafts a tendency to vested interest and a tendency to resist new developments and new ideas. Perhaps there is as much bureaucracy and rigidity in that field as there is in any other.
Governments must be alive to the necessity of not using their finance and their other promotional means to ensure the rigidity that exists. Indeed, we feel that in many ways governmental participation in the promotion of the arts in Australia has been allowed to bolster social climbing. We notice this in some areas where the development and the promotion of the arts under governmental promotion has, I would think, been diverted and impeded by allowing the arts unduly to fall into the hands of retired colonels, stockbrokers, and so on rather, than into the hands of those creative people .who will ensure the development of the arts. .
There are a couple of curious expressions in this statement to. which I feel I should draw attention. One is in the second last paragraph of the statement. It reads:
Ultimately, I hope people in the world markets will see instinctively that the products of Australian craftsmanship, including also Aboriginal craftsmanship, are characteristically Australian, not because they are marked ‘Made in Australia’, but because of a high degree of artistry, skill and style enhanced by high standards of industrial design. 1 cannot see that the requirements ‘high degree of artistry, skill and style enhanced by high standards of industrial design’ will mean that they will be characteristically Australian. We hope that they will be characterised by a high degree of artistry, skill and style, but we are part of a world culture and to me it seems to be a little inaptly phrased as if to suggest in some way this was to be a continuance of some specific Australian motif rather than a concentration on the development of all kinds of artistic forms. No doubt some may have some Australian motiff running through them. But it may well be that we might succeed even though the products were not distinctively Australian of the highest artistic standard and of the highest craftsmanship so that we will be able to say that it is beautiful craftsmanship or that it is a beautiful form of art and perhaps not be able to tell that there was anything distinctively Australian about it.
I do not know that the aim of the development of the arts should be to produce something peculiarly or distinctively Australian. Rather is it that the great art in the world has been not distinctively national; it is so outstanding that it becomes international or beyond the bounds of national culture. However, those are mild observations upon what is in the statement. We welcome the proposal to do anything which will promote the development of the arts and crafts in this country. This is the main point on which I wish to touch. We feel that not enough has been done. However minor the action which is starting to come out of the Ministry of the Environment, Aborigines and the Arts, let us welcome it, because so little has happened and so little is likely to happen. Let us not rebuff the most tentative and most minor, even the most inadequate steps. We are pleased to see any signs of activity whatever.
– The Australian Democratic Labor Party supports the move by the Government. In the first place, it reflects the attitude of the Government in creating a new Ministry and appointing a Minister to it to have within its purview this among other pertinent and appropriate matters. We must realise that we are living in an affluent society, but a society that is becoming rather sterile in which the concentration is on material things to the exclusion of other things which are very much more important. We must be particularly alert that we do not create a society which will be rich in material resources and which will be denuded of depth in cultural matters.
There is a great repository of artistic skill in the various fields of art in this country. But we must realise one thing: In spite of the availability of air travel, we are still a long way from the traditional cultural centres of the world. It is, after all, from these wells that countries of Western culture have drawn and have been enabled to enrich their own cultural backgrounds. But, of course, we are quite close to the cultural centres of the East. It is to be expected that as a nation which is close to Asia not merely will we draw from these wells but that the Asian cultural influences will have tremendous impact on this country. Already I think it could be said that they are. We are particularly equipped to make an estimate of what is the effect of non-Australian cultural influences on our society. With the influx of so many citizens from Europe over the past 20 years, we have already seen a great diversification of our culture. We have seen names, obviously of recent European origin, acquitting themselves very well in cultural and art competitions and obviously making a tremendous contribution to the cultural and artistic achievements of this country.
But I agree that one of the most important things is that we should develop our own indigenous culture and our own indigenous arts. This will not be something that springs from the wells of our own particular Australian milieu. It is a development that we can expect will draw in some sort of an amalgam from the cultural influences which surround us. Therefore, we can expect that, properly organised and properly disciplined in the professional sense, there will be a tremendously diversified cultural explosion in Australia.
For these reasons we welcome this action by the Government. We are particularly pleased with the personnel who have been appointed to this Committee. By their short biographies, obviously they are people who are wonderfully well equipped and who will bring not only skill and experience but also dedication and enthusiasm to their job. We can anticipate that, in the years to come, the effects of this action by the Government will be reflected in the enrichment and the diversification of our culture. We should be happy that we have been parties to and have been present at what might be called the initiation of this new activity which we hope will be extraordinarily fruitful in the future. I commend the Government for its action. We will look forward to giving, and 1 think that honourable senators should attempt to give, this Committee and its activities all the support that it is possible to provide. We, with enthusiasm support the proposition.
– I ask for leave to make a statement on behalf of the Treasurer (Mr Snedden).
– Is there any objection? There being no objection, leave is granted.
– With the concurrence of honourable senators I incorporate the statement in Hansard.
Last week the Treasurer received from the Superannuation Board the report by the Commonwealth Actuary, who was appointed by the Board under section 17 of the Superannuation Act to make the ninth quinquennial investigation of the Superannuation Fund covering the period of 5 years ending 30th June 1967. A further report expressing the Board’s views accompanied the Actuary’s report. Having in mind the time that has passed since the end of the quinquennial period and the great interest that has been shown by honourable senators, staff associations and individual contributors and pensioners in the outcome of this investigation, the reports are being tabled in advance of their being considered by the Government.
While the completion of this investigation has taken longer than is customary, this does not reflect on the Commonwealth Actuary or the Board. I think honourable senators already know that the main reason for the delay was the need to introduce an extensive computer system and to transfer te it the detailed records of contributors and pensioners retrospectively to the date of their entries into the scheme, in some cases as far back as 1922. But, while the re-organisation of the Board’s records delayed completion of the ninth investigation, it will facilitate greatly future investigations. The Board has slated in its report that all the statistical and valuation data for the next investigation covering the 5 years ending 30th June 1972 should be available to the Actuary by November of this year and that the Actuary’s investigation should be completed during 1973.
May I first very briefly sum up the conclusions reached by the Actuary and the Board. The Actuary has advised that, in his view, there was a gross surplus of assets over liabilities of $14,779,000 in the Fund as at 30th June 1967 and has recommended a conversion from the present unit purchase pension scheme to a new superannuation arrangement based on percentage of salary rates of contribution. He considers that the surplus should be applied to facilitate the transfer of existing pensioners and contributors to the new scheme he has proposed and to assist in meeting the cost of new benefits under that scheme. The Board also does not favour a cash distribution of the surplus but has concluded that the balance of advantage to members would lie in applying the surplus assets at 30th June 1967 to the payment of selected additional benefits under the proposed percentage of salary contribution scheme or the present scheme.
The Board considers that, if a percentage Of salary contribution scheme were introduced, it would be appropriate for any remaining surplus assets to be applied for the benefit of eligible contributors and pensioners with an equity in the Fund as . at 30th June 1967 who transfer to the new scheme. Alternatively, if the existing unit of pension scheme were to be retained, the Board suggest that any remaining surplus assets should be applied to a further extension of pension benefits with particular reference to those provided for widows and children.
As I have already said, the Actuary’s investigation led him to the view that there was a surplus of assets over liabilities of $14,779,000 as at 30th June 1967. The surplus is largely due to the adoption of an increased interest valuation rate of 5 per cent compared with the previous rate of 3i per cent as at 30th June 1962 and the interest rate adopted for the distribution of surplus assets at 30th June 1962 in accordance with the Superannuation Act No. 97 of 1965, namely 5i per cent for the period 1962 to 1972 and 4i per cent thereafter. It is not an accounting surplus. What it represents is the excess of the amount of the Fund at 30th June 1967 and the present value at that date of future contributions by contributors then in the scheme, a total of $471,398,000, over the present value at 30th June 1967 of future benefits payable to pensioners and contributors in the scheme at that date, an amount of $456,619,000.
Thus, in carrying out his valuation it has been necessary for the Actuary to make judgments about the course of things over a long period into the future. For instance, at present rates of longevity some persons contributing to the Fund at 30th June 1967, or their widows, could be drawing pension as late at 2050. But a scheme that commenced 50 years ago is not likely to be without its problems and attention has been directed to these by both the Actuary and the Board in their reports. Undoubtedly the most important problem is the burden that escalating contributions may represent in the final stages of a member’s career.
As explained bv the Actuary this flows from the unit purchase basis of the scheme, the underlying principle of which is that the contribution for each unit of pension, when combined with other similar contributions, has to be sufficient to enable the Fund to pay its share of the benefits attached to units, whenever those benefits may become payable. Thus a unit taken out at a young age will be paid for over a long period and the fortnightly rate of contribution will be correspondingly low. Conversely, a unit taken out in the last few years before the selected age for retirement must be paid for over a much shorter period and the fortnightly rate of contribution will be relatively higher.
The present scheme has been modified in two respects so that members have an alternative to foregoing additional entitlements for which they cannot afford to pay. The first modification afforded members the opportunity of taking up a maximum of 12 reserve units that can be converted to active units at some later time. The second modification was to provide for non-contributory units, which are available to members who have reached age 40 and are able to meet certain conditions regarding the level of their contributions and active units held. But a consequence of electing to take noncontributory units is a reduction in the member’s ultimate pension entitlement.
The scheme that the Actuary has proposed and which the Board has concluded should be adopted as the model for early development of revised superannuation arrangements for Commonwealth employees, expresses contributions as a constant percentage of salary throughout a member’s service, the actual percentage rate being determined by the member’s age when entering the scheme. Under such a scheme it can be expected that a member would pay more in his early years than he does at present but less in the years approaching retirement. The post-1959 Defence Forces Retirement Benefits Scheme incorporates this contribution principle.
On the benefits side the Actuary sees the primary objective of the scheme to be the provision of a pension benefit and proposes significant changes in the way benefits are determined. Some of the important features of the scheme he has put forward are as follows:
There would not be any provision for the tapering of the benefit when salary exceeds a particular level.
Pension at retirement would be a proportion of the average salary received in the 3 years before retirement, the proportion reflecting years of membership of the scheme.
Invalid pension would be calculated by reference to average salary and prospective years of membership had the member continued to serve until his normal retiring age.
Widow’s benefit would be five-eighths of either the member’s age or the invalid benefit.
Children’s and orphans’ pensions would be 10 per cent and 20 per cent respectively of the invalid benefit.
Persons who could not meet the prescribed medical standards would contribute for pension benefits on a limited basis.
There would be provision for pensions to be adjusted annually on the basis of changes in the consumer price index.
In ils comments on the proposed scheme the Board has indicated that it favours the inclusion of a commutation provision. It also observes that the scheme removes the right to purchase full pension at age 60 and that, as the pension benefit available would vary according to years of service, it follows that the scheme would, in some cases, provide lower benefits than are available under the present arrangements.
The Government is, of course, aware of problems with the present scheme and honourable senators will recall that the introduction of non-contributory units in 1969 was designed specifically to ease the burden on older contributors to the scheme. More recently, the Treasury commenced a full investigation of the scheme and is expected to complete this task later this year. As part of this investigation it will look closely at the Actuary’s and the Board’s proposals.
We also know that the Council of Commonwealth Public Service Organisations, with which many of the staff associations covering Commonwealth employees are affiliated, is developing proposals for a new superannuation scheme. We will of course give full consideration to any proposals that the Council puts forward as well as to representations regarding the present scheme and suggestions for change from other bodies and individuals.
In its report the Board has listed some of the proposals that have already come forward and has included estimates of .the extent to which the liabilities of the Fund would be increased as at 30th June 1967 if selected additional benefits were available to pensioners and contributors from 30th June 1967. For instance:
Increasing a child’s pension from $4 to $8 a week and the minimum pension for an orphan from $10 to $15 a week would increase the liabilities by $2. 3m.
Increasing the widow’s benefit from five-eighth pension to two-thirds would increase the liabilities by $llm.
Providing pension for the widow of a marriage after retirement would increase the liabilities by $16m.
Providing interest on refunds of contributions would increase the liabilities by $21m.
Automatically increasing pensions after retirement in accordance with changes in the cost of living would increase the liabilities by $ 180m.
Thus the estimated total increase in the liabilities of the Fund as at 30th June 1967 that would result from granting these additional benefits is $230,300,000 and may be compared with the disclosed surplus of $14,779,000. The increase in the liabilities of the Commonwealth flowing from the increases in pension benefits would, of course, be very much higher.
When existing superannuation pensions were increased last year orphans whose pensions are calculated by reference to the widows pension were the only children who benefited directly from the increases. Those in receipt of the fixed rates of pension specified in the Act that apply to future pensioner children and orphans as well, did not receive an increase. When introducing the Superannuation (Pension Increases) Bill, I said that the position of orphans and children would be given special consideration by the Government when the results of the quinquennial investigations of the superannuation and defence forces retirement benefits funds became available. Later, after considering representations from the Council of Commonwealth Public Service Organisations, the Treasurer told the Council that he would look at the situation of children and orphans again as soon as he received the Actuary’s report on the Superannuation Fund. The matter is already being examined by his Department and he hopes to be in a position shortly to put proposals to the Government.
The Commonwealth . Superannuation Fund, with well over 190,000 contributors and 30,000 pensioners, . is the largest superannuation scheme in the country. As an employer the Government places great importance on the provision of sound and beneficial superannuation arrangements for its .employees and the many improvements in the present scheme that have been effected over the years are evidence of this. But the reports of the. Actuary and the Board give emphasis to 2 questions that are already in our minds. Can the present scheme be modified further so that it can continue to meet the needs of contributors and pensioners in the future or must it be replaced by a new scheme involving different contribution and benefit principles? These questions are of great importance and warrant careful and thoughtful consideration.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Sir Kenneth Anderson) read a first time.
That the Bill be now read a second time.
The purpose of this Bill is to amend section 50 of the Public Service Act 1922-1968. This section deals with the transfer and promotion of officers within the Commonwealth Public Service, and the system under which an appeal against the selection of an officer for promotion may be made by any other officer who may consider himself more entitled to promotion than the officer selected. The section establishes committees, called Promotions Appeal Committees, which are required to make full inquiries into the claims of any appellant and the officer who has been promoted. These Committees consist of an independent chairman, an officer nominated by the Permanent Head of the department in which the promotion was made and an officer nominated by the appropriate staff association.
At the present, where a provisional promotee and an appellant perform their duties in different States, the Act requires the Promotions Appeal Committees in the relevant States to hear the appeals and make reports to the Public Service Board. The Board then determines the appeal. The question of interstate appeals has been considered in recent times by the Joint Council, an employer-employee body constituted under the Public Service Act to advise the Public Service Board on conditions of service. The Joint Council recommended that a ‘review’ promotions appeal committee be set up to consider the reports of State Promotions Appeal Committees and, within prescribed limits, to determine the appeals.
The Government has accepted the desirability of amending the Act to meet this proposal. The Bill therefore provides for the establishment of Central Promotions Appeal Committees. It requires that reports of State Committees in cases where all the parties to the appeal do not perform their duties in the one State, be referred to a Central Committee for examination and for any further inquiries it considers necessary. The Central Promotions Appeal Committees will have the same powers of determination as State Committees. In the drafing of the Bill the opportunity has been taken to revise various detailed provisions relating to the present promotions appeal system, particularly in relation to cases where there are 2 or more appellants. If honourable senators so desire, these amendments can be explained in more detail during the Committee stage of the Bill. I commend the Bill to the Senate.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Sir Kenneth Anderson) read a first time.
(12.29)- I move:
The purpose of this Bill is to enable the Commonwealth to meet its obligation under a guarantee of repayment of certain borrowings by the Australian Wheat Board from the Reserve Bank of Australia, in respect of wheat from the 1970-71 pool. Similar loans were made last year and the year before in respect of the 1969-70 and 1968-69 pools. To assist in the marketing of 1970-71 pool wheat, arrangements were made for the Board to borrow up to $364m from the Rural Credits Department of the Reserve Bank. The date for final repayment is 31st March 1972, approximately 12 months after the drawings were made, in order to comply with section 57 of the Reserve Bank Act which requires that loans of this type shall not be made for more than one year. Receipts by the Board from sales of wheat will be insufficient to enable it to repay the borrowings in full by the due date. This will mean that the Commonwealth will be liable under its guarantee for an amount currently expected to be in the vicinity of $95m, recoupment of which is estimated to take approximately 11 months. lt is proposed that the Commonwealth lend to the Board sufficient funds to enable it to discharge its debt to the bank. It is also proposed that the Board be required to use for repayment of the loan all net proceeds from export sales of wheat of the 1970-71 pool- after the date of the loan - as well as the Commonwealth’s stabilisation payment. The Bill provides that the loan to the Board be at an interest rate of 5i per cent per annum on the daily balances outstanding, with the actual timing of capital repayments and interest to be specified by the Treasurer. The interest rate is the same as that charged on last year’s loan. The Bill authorises the Commonwealth to borrow up to $150m to make the loan to the Board. This exceeds the Board’s current estimate of the amount required under the guarantee but, as such estimates are subject to substantial variation, the amount specified in the Bill provides a margin in case the estimate proves too low. The Australian Loan Council has agreed to a special borrowing programme for this purpose for the Commonwealth in 1971-72. The terms of the borrowing will be subject to Loan Council appproval. I commend the Bill to honourable senators.
Debate (on motion by Senator O’Byrne) adjourned.
Motion (by Senator Sir Kenneth
Anderson) agreed to:
That the Senate, at its rising, adjourn till Tuesday, 21st March at 3 p.m.
Debate resumed from 7th March (vide page 513), on motion by Senator Greenwood:
That the Bill be now read a second time.
– It is not my intention to speak at any length at this stage of the Bill and in the Committee stage a long, protracted and detailed discussion of this extremely complex body of what might be called evidentiary law may not be particularly fruitful, but I should like to make one or two observations. This is a statutory attempt to introduce an evidentiary code which was proposed originally by ordinance. The Senate having raised its voice against that method, the matter has been introduced by way of a Bill to merge into the statutes. The Bill deals with many propositions relating to the adduction of evidence in courts - criminal and civil. I do not suppose there is a field of law which is more complex or which, to the layman, seems more frustrating and illogical. As a matter of fact, the law of evidence often appears to be extremely frustrating and extremely illogical to practitioners in the art of law. If the object of legal examination is to attempt to adduce the truth and to arrive at fact every precaution must be taken to ensure that the evidence that comes forward is evidence which can be relied upon, which comes from the proper source and which can be convincing and finally compelling in its operation.
Over the years an extraordinarily complex body of evidentiary law has grown up with principle following principle and with qualification following qualification until it is now emerging that the whole body of evidentiary law has become somewhat formalised and ritualistic. If that is the position we finally reach the situation where the ritual may be more important than the substance and the rules more important than the end to be achieved. I know from appearing in courts where one has lay clients or there are lay observers that they cannot possibly see why certain questions may not be asked. It seems to them as a matter of cold logic that the asking of a question and the answer, one way or the other, would tend to establish the truth or falsity of a proposition. It is almost impossible to convince them that justice is being done when the opportunity to ask that particular question is denied by the court or is not available under the rules of evidentiary law. As a matter of fact it often appears to the lawyer that the cause of justice is not being served by that denial.
For that reason, with these situations developing and expanding from year to year, the legal profession has felt that the laws of evidence would have to be overhauled substantially. This arises from a number of considerations, some of which were mentioned by the Attorney-General (Senator Greenwood) in his second reading speech. As an example, it was said that the laws of evidence had to be stringent, that they had, if anything, to lean on the side of sensi’ivity rather than the side of blunt.ness when dealing with non-professional people on juries who would be inclined, quite without warrant, to place undue emphasis on evidence that was not complete persuasive and which was not entitled to credibility or even to credence. Therefore, courts had to err on the side of severity in the adduction of evidence, limiting it rather than providing extended opportunities for its adduction.
As the Minister said, as we live now in a more sophisticated and better educated community when jury trials, apart from the coram jursidiction, are subs’antially disappearing, with lay people bringing their minds and jugments to matters in courts, because these people are better equipped and better educaed and are able to make a better assessment, even within the refinemen’.s of evidence as it is presented, it is not necessary to surround the adduction of evidence with all the formalism that formerly was attached to it. It can now be left to the common sense, education and experience of those people who bring their minds to it to make their own dissection, acceptance or rejection of the evidence adduced. Therefore, the tendency of the law has been rather to lay the emphasis upon the adduction more liberally of evidence which formerly might have been rejected, and a person bringing his mind to bear on the establishment of facts or arriving a* a decision about a situation should go to the question of weight. That is, if the evidence under the old principles would not have been strictly admissable, if it comes in under some new principle it is left then to these new qualifications found in the modern community to say, under judicial direction, that it has this weight or has not that weigh’. The purpose is. to alert the jurors or lay people to that situation. That seems to be a more rational, logical and, certainly, more modern approach.
We must always be careful that our laws do not become like the laws of the Medes and Persians, immutable, totally unchangeable, until it becomes almost ritualistic and the real purpose of arriving at the truth is lost in the formalism of the law. Nowhere, perhaps, do we find more of what appears to be artificiality than in the law relating to the adduction of what is called ‘hearsay evidence’, which is evidence purporting to be given by somebody who does not speak of his own personal knowledge or identification of the incident to which he testifies. There is a principle of the law of hearsay evidence that it is generally inadmissible, and over the years a whole host of complex and refined qualifications have grown up. Any textbook now will probably recite from decided cases perhaps 10 or 12 principles which are called ‘qualifications of the hearsay rule’ and which would allow to be given evidence which otherwise, on the broad principle of the hearsay rule, would be excluded. All this has tended to complicate the law and to make directions in certain cases by judicial presiding officers to juries very difficult for jurors to bring to their minds to that they make a. fair evaluation of the situation.
New approaches such as this approach in the Australian Capital Territory reflect changes that have been taking place in England over more recent and even more remote years, changes which have tended to bring the laws of evidence into a modern format and to make them more appropriate and relevant to the modern community. One matter that concerns me is that some of the principles now being embodied in our review of evidentiary laws are principles which were written into English law perhaps more than 30 years ago. It is a matter of concern that, if those principles have operated in England for so long, we have been so tardy in establishing them, accepting them and writing them into our Commonwealth or State law. Surely if our British cousins are able to give their minds and their legal examination to these matters it should not be so long after that we should pick up the work they have done, establish its worth and carry it into our own municipal law or, alternatively and better, that we ourselves should be conducting this type of examination - this kind of legal scholarship - and coming up with our own suggestions. Perhaps the Atorney-General will be able to put me right on this, but I never thought that Australia stood in the forefront of legal pioneering.
– The honourable senator does not need to be reminded of the time it took New South Wales to introduce the Judicature Act. It was only 100 years.
– That is right. The amalgum of law and equity was not adopted by New South Wales for a century and a half.
– It was 100 years from its introduction.
– Yes. So it is strange that what we might call ‘legal experimentation’ is much more an accomplishment in New Zealand than it has been in Australia. I think the whole world is indebted to that dominion for the introduction of the principle of testators family maintenance and many other legal principles. New Zealand over the years has produced many eminent jurists- men like Salmond and others. To my recollection Australia has never been in the forefront of legal experimentation and pioneering, but I see no reason why we should not be in that position. As a matter of fact, it is only in more recent years that some of the States have decided even to create legal review committees to review statute law and to discard some of the old statutes which, either in their drafting or in their principles, had become outmoded, and to review them, repeal them or even re-write them. Again, I see no reason why there should be this constant tardiness within the legal profession. I include in that the public authorities associated with the law and the private legal profession.
Tremendous work is being done now, voluntarily, by members of the private legal profession. A matter referred to here in recent times was the advent of a criminal code for the Federal territories. The work on that was done substantially by practitioners in Queensland from the private Bar and practising solicitors, with the distinguished assistance of legal academics. Because Queensland was a State that had a criminal code of very great moment, tremendous authority and prestige, as well as many years operation, perhaps it was thought appropriate that that State should be entrusted with the attempted presentation of a more modern code, embracing the new principles, including psychological principles and matters such as that, for operation in the territories. But as I say the legal profession is doing a great deal of work and it is gratifying to see that a code such as this is now being presented to the Australian Capital Territory.
An examination of the principles here will possibly be done more appropriately and in greater depth during our consideration in Committee, but I wonder whether the Committee, in the rather casual approach that it must necessarily give to a matter like this which comes before a chamber so busy with other matters, in an atmosphere of politics and other things, is the appropriate body at this time to examine in necessary depth a matter of this nature which primarily, substantially and ultimately is technical and technological. It may be matter that could be referred in detail to the Legal and Constitutional Committee, where perhaps the lawyers of the Senate, sitting in the appropriate atmosphere, might examine it in conjunction with a consideration of State codes of evidence.
Sitting suspended from 12.45 to 2.15 p.m.
– Prior to the suspension of the sitting I was speaking on the general question of the modern amendments and developments of the evidentiary code which are taking place throughout countries with the principles of English law. I do not intend to continue my remarks for very long on the second reading because I know that honourable senators are more interested in the detailed examination of the provisions of the Bill in the Committee stage. I was regretting, at a time when the Commonwealth has deemed it wise to look at these evidential provisions for the Federal Territories, that at the same time there has not been an apparent attempt to write uniform evidentiary codes throughout Australia. For example, Part VI of the Bill deals with the provisions in relation to the admissibility of statements in documents. Clause 28 (1.) provides:
Where direct oral evidence oE a fact or of an opinion would be admissible in a proceeding . . .
That is what is written into this provision. When we look at a similar provision in relation to the admissibility of documents in evidence written into the Queensland Evidence and Discovery Act of 1962, we find that there is no reference to the expression of an opinion in a document. One can see the value of that, for example, if it will enable the admissibility of medical reports, which would involve not merely the oral evidence of the doctor but the evidence of the facts stated in them. In these circumstances medical records may very often embrace the opinion which ultimately stems from the recitation and assessment of the facts. I think it is not inappropriate that this provision for an expression of opinion as part of a document should be admissible subject to the terms and conditions of the section. But a similar provision does not appear to be made in the Queensland statute.
To my mind that highlights the principle to which I was addressing myself, that it is to be regretted that with the constant consultations that now take place beween the Federal Attorney-General and the State Attorneys-General - regular conferences do take place on matters of uniformity - on a matter as important as this uniformity could not have been arrived at. The Attorney-General may be able to tell me - I would be indebted if he would - what developments are taking place and what consultations are taking place in this area of the law. There have been successful consultations in relation to company law and similar matters. But as I say, at a time when law reform committees are being constituted and operating it is a shame that the initiative should not be taken by the Commonwealth, not merely to write a provision such as this into the law but to see that it is embraced by the States and becomes a uniform national provision. More particularly still, a national code should emerge.
As I say, the real application of the Senate in this field obviously will occur in the Committee stage of the debate. I do not see a great deal of reason to pursue general principles any further on the second reading of the Bill. I think we all welcome the advent of this evidentiary code which is perhaps embraced more particularly now in statute. I remind honourable senators that the Attorney-General promised that this would be done when we raised with him previously some difficultiesin relation to this evidentiary code. I am indebted to the honourable senator for the action he has taken. I am sure it will attract the attention of many distinguished lawyers in this place. While I may think that perhaps such a discussion in such a short time and in the context of this debate in this place may not be as valuable as a document such as this, which requires particular and detailed scrutiny in depth, might be entitled to attract, nevertheless I would imagine that the deliberations of the Senate will be of great value to the Attorney-General and of great value perhaps in improving, so far as is within our competence, the provisions now contemplated. We support the Bill in general terms.
(in reply) - I appreciate fully the contributions which have been made by those honourable senators who have spoken to the second reading of this Bill. I think every honourable senator who has spoken has appreciated that it is a technical measure in relation to which the view points which have been expressed can find better expression at the Committee stage. I anticipate that the particular matters which have been raised will be elaborated upon in the course of the debate at the Committee stage of the Bill. I do not want unnecessarily to take up the time of the Senate, because the second reading speech was, 1 concede, a. long one. It was long because it was felt that that was the only way in which a number of these intricate provisions could be appropriately explained.
Before concluding I wish to raise one or two matters. First of all, I urge upon the Senate the fact that the work of preparing this Evidence (Australian Capital Territory) Bill took place over aperiod of what is now in excess of 3 years by a committee which, by universal acceptance, is well versed in the study of the law of evidence, and the opinions of people who are renowned throughout the English speaking world were sought. It was not a labour which was carried through with a dispatch necessitated by an immediate need. It was a labour which was carried through on a basis that the very best that could be done in the conditions in which the law was to be applied should be done. As soon as the work of the committee was completed an ordinance was introduced into the Territory early last year. The Australian Capital Territory has had almost 12 months experience of the provisions of the Bill which is now before the Senate. I cannot speak with authority that it has caused no problems at all, but I certainly can say that if it has caused problems they have not been of the character which has led to requests for amendment or reform. I would have thought that that situation would be the likely result of the work which was done. The experts in this area do not recommend changes lightly, and the changes they do recommend are made after considerable study, research and contemplation of the likely effects of what they have done. Therefore we have not a perfect piece of legislation, because it is difficult to believe that any legislation could be perfect in that sense, but we have working legislation which has been tested and which has worked.
When the Bill is discussed in Committee we undoubtedly will have an interesting exercise by the lawyers of the chamber. I do not question for one moment the ability of any of the legally qualified people in this chamber to speak on the measure, nor do I question the interests of other honourable senators who, whilst they are not legally qualified, have displayed from time to time an interest in legal matters. But I hope that in expressing viewpoints honourable senators, with or without legal knowledge, will recognise that this work has been done by persons who have probed deeply into the complexities of such matters as the competency and the compellability of spouses of parties to an action, and the difficulties in that area have not gone unrecognised. In the light of possibly inadequate discussion of the ramifications of the changes in this ordinance, the steps which are taken here ought not to be lightly accepted unless there is real satisfaction that what we are doing will improve the Bill. Whilst I am not seeking in that way to lecture the Senate or to advise it against taking any step which could be regarded as making an amendment, I hope it is appreciated that we are dealing with the working rules by which those who practise in the courts deal with the rights and obligations of the parties who appear before the courts and that in a sense the practitioners are the persons who are the best judges of what are the appropriate rules. We ought to recognise that, even though we are practitioners, at the same time we are legislators.
asked what activity was taking place in other parts of the Commonwealth with regard to amending the law of evidence. In particular, he sought some information as to what was happening in the Standing Committee of AttorneysGeneral. I can only say, from the one and only Standing Committee meeting I have attended, that there is a considerable interest in the operation of this piece of legislation, which hitherto has operated in the Territory as an ordinance. Unquestionably, the Australian Capital Territory Ordinance is ahead of any comparable evidence law in the States of the Commonwealth. As a result of the fact that some measures were introduced into law by the Ordinance. I think some States have been heartened to move in the same direction; some to move further than the Commonwealth, others not to move as fast or as far.
In Victoria, for example, it was decided that the provisions which permitted the use of computer produced documents should be applicable to criminal proceedings as well as to civil proceedings. That was in advance of the Australian Capital Territory provision, which had limited their use to civil proceedings. It is to be noted - I mentioned this in the second reading speech - that this Bill makes provision for the documents produced by computers to be admissible as evidence in both civil and criminal proceedings. I indicated the reason why I felt that change should be made. It is also to be recognised that the New South Wales Law Reform Commission has been having a close look at the whole subject of evidence. That is a further reason, I suppose, why any substantive change which might be felt to be desirable in the legislation now before the Senate might await the outcome of that Commission’s activities.
Rather than proceed into an elaboration of particular points which were raised by individual senators in the course of the second reading debate and which were directed to particular provisions, 1 suggest that they be discussed at the Committee stage, when I will be prepared to offer such explanations as I am capable of offering as to the reasons for the provisions which now appear and the reasons for any changes that have been made, f think it should be recognised that this is legislation which is an advance on what has existed in the Territory in the past; that it is legislation, as I repeat, which virtually has been in operation in the Territory as an ordinance for almost the last 12 months; and that it is legislation which has worked well. It is the desire of the Senate that this Bill be introduced so that there can be discussion by the Senate of the provisions clause by clause. I can only hope that we will be able to discharge the task of dealing with the measure clause by clause before 3 1st March, which is the date by which the measure must pass through this chamber and the other chamber if the Territory is to avoid being without a law of evidence adequate for the purposes of a growing community.
Question resolved in the affirmative.
Bill read a second time.
Bill - by leave - considered by Parts.
Clauses 1 to 8 - by leave - taken together.
– I wish to seek some clarification of the matter of to whom this Bill applies. ] am not opposed to clauses 1 to 8; but clause 6 - the definitions clause - states: court’ means -
I take it that the term ‘court’ applies to anything that is described as a court but exempts our committees. Clause 7 (4.) states-
This Act does not apply with respect to the taking of evidence under an Ordinance where the Ordinance contains a provision to the effect that the tribunal or person taking the evidence is not to be bound by any rules of evidence.
Am I right in saying that, whilst committees of the Parliament are exempted under the definition of ‘court’, the taking of evi dence under an ordinance is covered by this Bill unless that ordinance contains a provision that this Bill does not apply? Clause 8 states:
What 1 am concerned about is where we can put the contrary intention and where we can exempt the taking of evidence under any Act from the application of this legislation, as provided for in clause 8. This is what I am trying to get at: Whilst it is generally understood that this legislation shall apply to court proceedings, I think that its application is much wider and that the exemptions are contained in the definitions and clauses 7 and 8. How far clause 8 extends and who may be exempted, I do not know. Perhaps the Attorney-General (Senator Greenwood) could explain that.
– Dealing with each of the points raised by . Senator Cavanagh, the definition of ‘court’ must be sufficiently comprehensive to include those places- where evidence is likely to be received. Naturally - this is why it must be included in the definition- it means a court of the Territory, whether it be the Court of Petty Sessions or the Supreme Court. Clause 6 states: court’ means -
For example, included in those tribunals or persons would be a person appointed under the Inquiries Ordinance to conduct an inquiry who is to receive evidence: or, where there is an arbitration by consent of the parlies, the arbitrator who conducts the matter and is entitled to receive evidence. They aTe examples which I envisage are covered by the expression ‘tribunal or person’. Of course, the character of a committee of the Senate or of the House of Representatives is different from that of a court because its function is different. Such a committee is probably to be regarded more as inquisitorial in its investigation rather than adjudicative and the provisions of the ordinance are felt, properly, not to be applicable. I think we all appreciate that at the present time inquiries are going on into areas of privilege and the rights of witnesses before parliamentary committees so that an appropriate code or standard of conduct can be evolved which will govern those proceedings. The second point raised by Senator Cavanagh deals with the provisions of clause 7 of the ordinance.
– Clause 7 (4.).
– Clause 7(3.) first of all. I think that was referred to. It states:
This Act does not prevent the making by or under an Ordinance of the Territory of a provision with respect to evidence., not being a provision inconsistent with this Act.
Insofar as there may occur in the future an ordinance which enacts a particular provision relating to evidence, that ordinance will prevail and it cannot be regarded as invalid by virtue of any conflict with these provisions. If, at the present time, there exists an ordinance which deals with a provision, it is not to be taken that that ordinance repeals the existing provision unless there is an inconsistent provision, in which case it must be taken to be repealed. Clause 7 (4.) states:
This Act does not apply with respect to the taking of evidence under an Ordinance where the Ordinance contains a provision to the effect that the tribunal or person taking the evidence is not to be bound by any rules of evidence.
I assume that there are ordinances - I cannot readily without some research put my finger on one of them - which contain such provisions. It is not an altogether uncommon provision to find in certain ameliorating statutes such as the Conciliation and Arbitration Act in regard to the taking of evidence in proceedings before the Commonwealth Conciliation and Arbitration Commission or before commissioners. I think that this is an expression which one comes across in other statutes. It is a matter of the policy of the legislature as to whether the rules of evidence are lo be adhered to. If, in particular instances, the legislature decides that rules of; evidence are not to apply then specific provision is made to that effect. Bin generally, with regard to the established courts of the land the rules of evidence do apply. 1 think the provision is made simply to ensure that where there is a statute which mav have force in the Territory saying that the rules of evidence are not to apply, a person cannot insist on strict adherence to the rules of evidence by virtue of this ordinance.
– Can ministerial action exclude an ordinance from the Evidence (Australian Capital Territory) Act?
– I would think that if an ordinance were subsequently made and it contained a provision that the rules of evidence were not to apply then that ordinance would have effect according to its terms and the rules of evidence would not apply. Accordingly, this ordinance would not apply. But if that is a matter of concern I point out that the ordinance would be subject to scrutiny by either House of Parliament because the ordinance would be tabled in each House of the Parliament. As far as the final point raised by Senator Cavanagh is concerned, I point out that the Act is to apply to every proceeding, criminal or civil, unless the contrary intention applies.
– Would that include arbitral proceedings?
– If the proceedings are before an arbitrator who, with the consent of the parties, is to receive evidence and who is not, by terms of the arbitration, required to ignore the rules of evidence then I think that the answer must be in the affirmative.
– The words ‘unless the contrary intention appears’ would suggest that one could again opt out by another Act of Parliament.
– I do not think that 1 would go that far in the case of this ordinance. I think that one must find a contrary intention in this ordinance to enable a decision to be made that the provisions of the ordinance are not to apply to a particular proceeding. I take the view that this is a draftsman’s expression. To me it quite clearly indicates that if one talks about any proceeding one means every proceeding. If one wants to make a distinction between a criminal proceeding and a civil proceeding then that must be expressly indicated. If one looks through the provisions of the ordinance in many places one finds reference made to proceedings not being a criminal proceeding or a civil proceeding.
– Senator Cavanagh has drawn attention to some matters of importance. In clause 6 the reference to ‘either House of the Parliament’ probably should not be there when one looks at the opening words ‘unless the contrary” intention appears’. A better expression may have been a positive provision such as a clause 6a in the definition section to say that this does not apply to either House of the Parliament or to a committee of either House or of both Houses of the Parliament. Then it would be quite clear. I do not think that anyone would suggest that in an enactment of this nature it was intended to touch a House of Parliament or its committees. The draftsman has obviously followed the normal form when he has inserted the words ‘unless the contrary intention appears’. 1 think Senator Cavanagh’s point is that it is inconceivable that the contrary intention could ever appear. As I apprehend it, the AttorneyGeneral .(Senator Greenwood) perhaps would agree with that approach and one could not have the contrary intention ever appearing anywhere in this legislation. It would be a simple matter to insert a different clause, perhaps clause 6a, saying that this does nol apply to either House of Parliament. But that is a matter which can be adjusted in light of what Senator Cavanagh has pointed out. Perhaps it may be conveniently done. The intention is clear. It would be a very strange court which ever suggested that the existing provision was intended to cover Parliament or committees of Parliament. Another matter to which I would like to draw attention relates to clause 7 (2.) which states:
This Act shall not bs taken to affect by implication any provision of any other law in force in the Territory, not being a provision inconsistent with this Act.
In the second reading speech the AttorneyGeneral indicated that this Bill was not a code and that large parts of the law were not covered. An important part of the criminal law is the provision relating to a statement from the dock which, as I understand it, is traced from section 405 (1) of the Crimes Act of New South Wales. That section states: 405. (1) Every accused person on his trial, whether defended by counsel or not, may make any statement at the close of the case for the prosecution, and before calling any witness in his defence, without being liable to examination thereupon by counsel for the Crown, or by the Court, and may thereafter, personally or by his counsel, address the jury.
My understanding is that that is one of the provisions covered by clause 7 (2.) and thai there is no intention to do away with the right of the accused to make a statement from the dock. I repeat: It is my understanding that provisions which are traced through in the law, such as the important statement from the dock, would be covered by clause 7 (2.) and that they would remain. Perhaps it would have been advisable for the retention of some of these to have been expressed. I suppose the answer is that once you begin to spell out some it renders more questionable whether the remaining ones are retained. As long as it is clearly understood that matters such as that are untouched and, indeed, protected by clause 7 (2.), I would be content to accept the position that they remain part of the law in the Territory.
Turning now to the other question raised by Senator Cavanagh, I think it should be made clear for his benefit that the Bill, as 1 see it, draws a clear distinction between those Acts or ordinances in the Territory which will be affected by this Bill and those which are in the special category of containing a provision to the effect that the tribunal or person taking the evidence is not to be bound by any rules of evidence. There is a well known catetory of that kind, lt is said sometimes that the judicial power does not extend to those bodies. They have been dealt with in. some of the old cases. 1 recall that Moses v. Parker was one of those cases. In them the tribunal or person is said to be not really exercising judicial power. Indeed, the situation of the High Court as a Court of Disputed Returns is questionable. The cases suggest that if a tribunal is not bound by any rules of evidence that is a characteristic of nonjudicial power. Yet that is one of the instructions given to the Court of Disputed Returns. That was done prior to the Boilermakers case and a question arises around that point which, has npt yet been resolved. To my mind it would not be open under this legislation fbr an ordinance to depart from some of the provisions of this legislation.
– Why could it not depart from it?
– Because the Bill says that it does not apply where the ordinance in question contains a provision that the tribunal or person is not bound by any rules of evidence. Therefore it is not open for an ordinance to be made that certain provisions are not to apply. It is only where there is a provision that the tribunal is not bound by any rules. Therefore it is not possible by way of ordinance to undermine, bit by bit, the provisions of this legislation. It is possible only for an ordinance to say that such and such a tribunal will be set up and will not be bound by any rules or that a certain tribunal already in existence will not be bound by them.
– It has to contain the provision?
– Then it does not have any rules of evidence.
– Then a Minister can decide that an ordinance will not have any rules of evidence?
– He could do that. That is true. But an ordinance could not be made which would have the effect of having some of the rules of evidence and not the other rules or, in some way, modifying the rules. It would have to be an ordinance that is bound by no rules of evidence.
– An ordinance could be made but this Bill would not apply to it.
– That is right. It could only be made so as to exempt the body from observing any rules of evidence. It could not exempt it from certain of the rules under this Bill and not others. That is as 1 read the Bill.
– Does that not make the matter more serious?
– I do not follow that. It seems to me that the ordinance could be made to effect it in part. But this Bill may not apply to such an ordinance. Is that not so?
– No. This Bill applies to all ordinances, as I read it, except where an ordinance contains a provision to the effect that no rules of evidence are to apply. So if there is to be. some exemption by way of ordinance it can only be that a tribunal or person is exempted from all rules of evidence. One cannot start to undermine these provisions in some partial way. One can only set up a body or tribunal which is exempt from all rules of evidence, whether under this Bill or otherwise. That is as I see it. I would be grateful if the Atorney-General would indicate that what I have said about clause 7 (2.), particularly in respect of the statement from the dock, is how it is intended that the legislation should work.
– I think one can say, in response to Senator Murphy, that the provision about statements from the dock really is part of the substantive procedural criminal law and therefore is not affected by these provisions. Nevertheless there is some expression made in this Bill, I think, relating to the right of the judge or tribunal to make comment in circumstances where statements are not made. Certainly, in the generality, I would agree with the approach taken by Senator Murphy to the 3 points raised by Senator Cavanagh. The only slight comment I would make which would depart possibly from what Senator Murphy said is that it was not part of the ordinance that the Houses of Parliament or committees of the Houses of Parliament should be excepted from the definition of ‘court’ because it was assumed that no-one would regard an ordinance as having that application. Where an Act of Parliament is concerned, there is nothing like being cautious of the interpretations which ingenious people may put on provisions.
Clauses agreed to.
Clauses 9 to 11 - by leave - taken together, and agreed to.
Clauses 12 to 16 - by leave - taken together, and agreed to.
Clauses 17 to 21 - by leave - taken together, and agreed to.
Clauses 22 to 27 - by leave - taken together.
– I do not want to oppose any of these clauses relating to bankers’ books. They appear to be a copy of the long-standing provisions in the law. Perhaps the Committee could be told whether there are any significant departures. I am assuming that they are the same as the old standing provisions, lt is a curious aspect of the law that bankers books and not other books have been treated in this way. One can understand why this was so in the first place. It was to enable commercial transactions to take place. It was thought that bankers were meticulous about how they kept books and that this was a satisfactory way to enable matters to be proved without inconvenience. Perhaps some attention could be given to an extension of this into other areas. There seems little reason why the law should not enable books and records, including accountants’ books, of other areas of commerce or government to be proved. This kind of principle, as far as I know, has worked satisfactorily enough to be extended.
One of the problems in the law - I realise that some of the provisions dealing with the admissibility of documents contained in this enactment intend to deal with it - is to cut down on the amount of red tape and nonsense that occurs in a court of law and to allow matters to be proved in the way that ordinary people would generally accept them without having to go through all sorts of bumbledom. If there were some real challenge, that challenge could be dealt with by the procedures in the court. Perhaps the Attorney-General (Senator Greenwood) might enlighten us as to whether, in his researches on this matter, the possibility has occurred of extending such provisions to other areas of trade, commerce, industry or government.
– I rise to speak because a matter has aroused my curiosity. I question the wording of clause 24 (1 .) as it stands. It reads:
On the application of a party to a proceeding, the court or judge may, by order, direct a bank or the manager of a bank or of a branch of a bank, whether within or outside the Territory, to permit the party to inspect, and take copies of, a book specified in the order.
If I, as an accused, want to obtain an order from the court to take copies of documents from the bank to show that I am a bankrupt, and therefore that it would be useless to proceed with an action, I can obtain an order. But if I seek to make an application to the court for an order, my application for an order under clause 24(1.) would not be served on the bank or manager concerned unless the court or judge directed that the application be so served. I would have thought that, even as an act of courtesy, if I wanted to seek an order from a judge to inspect the books of the bank. I would not be debarred from serving notice on the bank unless the judge so ordered that I could serve an application. There must be some reason for this. If the Attorney-General (Senator Greenwood) could tell me the reason. I would be appreciative.
– I think that in answer to Senator Murphy’s query one can say, harking back to something he said, that the evidence law which is proposed in this legislation is not a complete code. It is not intended to be a complete code. Broadly I think there is merit in his proposition that if it were a complete code the provisions relating to bankers’ books have in their generality a capability of extension to cover all books of accounts, records and documents used in business and in industry. In fact that is what has been done in Victoria at the present time. I think that the Evidence Act of 1971 in Victoria supplanted a number of preexisting records with regard to bankers’ books which are, in essence, the same as those dealt with in this legislation and substituted provisions which apply to any books of account of a bank or a business where they record the financial transactions of the business and where they relate to any documents which are used in the ordinary course of the business. I imagine that in due course consideration will be given to undertaking changes of that character in the Australian Capital Territory. But at the time this legislation was being drafted - one must remember that it ante dates in terms of its operation in this Territory what has recently occurred in Victoria - there were no pressures for such changes.
Dealing with the point that Senator Cavanage has raised, one might speculate as to what the reasons are for not requiring an application for an order to inspect proceedings to be served upon the bank c the manager of the bank unless the court so directs. But I would think from the nature of the order which is sought and the formality of the procedure which is involved that it is a saving of expense which is probably the pre-eminent reason why it does not have to be served on the bank or the manager. For example, one could not imagine that the bank or the manager of the bank would be concerned to appear before the judge to show cause or reason why a person should not be able to inspect or take copies of a book which is in the custody of the bank. If that interpretation be correct, why should a party be required to incur the added expense of obtaining an extra copy of the application and the added costs of serving it on a bank or the manager? I cannot say that this is the reason nor, upon seeking advice from those advising me, can I give a better answer. But 1 feel that the explanation I have given is acceptable both to me and to my advisers as a reason why the clause should remain as it is in the legislation.
– The Attorney-General (Senator Greenwood) suggests that we should pass legislation the implications of which we are not aware and about which no one can advise us. He states that the draftsman had some idea; therefore it should be passed.
– I will say that is a good reason why this clause should remain as it is.
– Let us assume that 1 make an application to the court or judge for an order to direct a bank of manager to give me the right to inspect or take copies of the books. Suppose I seek from a judge of the Australian Capital Territory Supreme Court an order to inspect the books of my account at the Commonwealth Bank because I want to do that. Clause 24 (2.) seems to me to contain a prohibition on serving the order on the manager or the bank unless a judge so directs. Why should I be prohibited? If I sought this order next Tuesday from a judge of the Supreme Court of the Australian Capital Territory, I am prohibited from informing the bank unless the judge so directs. Clause 24 (2.) states:
An application for an order under the last preceding sub-section shall not be served -
I do not know what the penalty would be if I acted in defiance of that and served it-
I cannot understand why the legislation contains these words to confuse the matter or why we should adopt it for no other reason than that we do not know what it means.
– If Senator Cavanagh looks at the Evidence Act 1898 of the State of New South Wales, which prevailed in the Australian Capital Territory previously, he will find that in sub-section 2 of section 50 there was a comparable provision which read in these terms:
An order under this section may be made either with or without summoning the bank or any other party and shall be served on the bank 1 clear days before the same is to be obeyed, unless the court or judge otherwise directs.
I suspect that if Senator Cavanagh had examined that provision he would have found that it had certain curiosities and apparent inconsistencies; but that is a matter of interpretation. That would be simply an indication that a person may or may not serve the bank to appear on the hearing of an application made to the court. In those circumstances a party that wanted to make an application for an order would be left in a quandary as to whether it should serve the bank. A party which did not serve the bank might well find that the court required the bank to be served. That would involve the added expense of another court hearing, together with the actual cost of serving the bank. I can only say that a more straight forward and simple procedure is contained in clause 24 of this Bill, which lays down quite clearly that an application does not have to be served on the bank.
– No, ‘shall not’. If it said ‘need not’ it would be all right, but it says ‘shall not’.
– Let us depart for a moment from the language of the statute and get to what it means in practice. In practice it means that an application does not have to be served upon the bank or the manager of that bank unless the court requires that it be served. The use of the word ‘shall’ is an indication in as mandatory and clear a way as one can use words that there is no obligation upon a person to serve the bank manager. But if, with all the affluence of wealth, Senator Cavanagh, as an applicant to the court for an order, felt that courtesy and justice required that the bank manager should be served before he made an application, then - notwithstanding what would appear to be a breach of the prohibition contained in clause 24 (2.) - I am sure the only end result of his actions would be that he would be out of pocket financially.
– I am not satisfied with that position. I agree with the remarks of the AttorneyGeneral that it may not be necessary to serve a notice on the bank and that one need not go to the expense of doing so. But I think it is only right that a bank should know that I am making an application to the court for the right to inspect its books. Therefore, out of courtesy I would desire to serve the bank. The AttorneyGeneral concluded his remarks by saying that 1 would be prohibited from serving such a notice. If the question involved is that, to save the expense of an applicant, the bank need not be served why do we not say so? Why do we not say a bank need’ not be served instead of ‘shall’ not be served. That is ridiculous.
– One could argue interminably, although possibly with profit, on this subject. The words ‘shall not be served’ in this context are to be construed as meaning need not be served. I think it will be found that a draftsman will endeavour to use language which is, as far as possible, comparable from statute to statute. So, if one wants to confer a power or a discretion one uses the word ‘may’, but if one wants to be a little more emphatic one uses the word ‘shall’. I think that there is a tendency for draftsmen to use either the word ‘may’ or the word shall’ in these contexts. I assume Senator Cavanagh and his legal colleagues in this chamber will probably concur with me that if it was necessary for a judge to decide whether a person who served a bank manager in these circumstances committed an offence against the Act the interpretation would be that he had not committed an offence. In short, the words ‘shall not serve’ in this context are to be read as meaning need not serve.
Clauses agreed to.
Proposed new clause 27a.
– The amendments I propose to move on behalf of the Opposition to Part VI of the Bill have been circulated. I indicated in my speech on the motion for the second reading of the Bill that the. Opposition would seek further guidance on certain matters and that, in the light of the guidance given, it might modify some of its proposals. But at the moment I intend to move the amendments which have been circulated.
– Has the Leader of the Opposition in fact circulated some amendments?
– Yes, 2 lots of amendments. They were circulated only a few minutes ago. There are 5 amendments in all to Part VI. They all touch upon the same point, namely, whether there should be a provision restricting Part VI to civil proceedings. Firstly, I move:
Before clause 28, insert the following new clause in Part VI. 27a. In this Part, “proceeding” does not include a criminal proceeding.’.
The other 4 amendments are consequential upon that amendment. The question the Opposition raises is whether Part VI of the Bill should apply only to civil proceedings or to criminal proceedings as well. The Opposition has some doubts about the width of Part VI in relation to civil proceedings. I think that there may be some considerable dangers in practice. My colleagues and I have discussed the various ways in which these provisions could be used to the detriment of, say, persons commencing actions at common law and how statements which have been gathered by insurance investigators and so forth could be used. On the balance we have come, down in favour - unless the discussion causes us to change our minds - of not opposing the extension of these provisions to civil proceedings. It appears from the second reading speech of the AttorneyGeneral that those who advised him in relation to the ordinance did not advise him properly and that the ordinance did not provide for the application of these rules in criminal proceedings. We feel that further experience of these provisions in civil proceedings is warranted before they are extended to the criminal proceedings.
– Do similar provisions exist in New South Wales?
– Not in criminal proceedings.
– I mean in civil proceedings.
– More or less, yes. They seem to have been hedged around a bit. Very little use has been made of them.
– Were they written into the New South Wales law fairly recently?
– No, the first part of them, 1 think, is found in clause 14b of the Evidence Act of New South Wales. My colleagues and 1 who have had considerable experience in civil matters in New South Wales find that these provisions, while they are on the books and although there may be some variations from what is proposed here, rarely come to be used. We have had no practical experience of them in civil matters. It is quite a rarity. I can think of one or two cases only in which they have been invoked, and then not to any subs’ an tia] degree.
– Does the honourable senator think that this is probably because the profession has been brought up on the old idea that hearsay is excluded and its members have not really caught up with the changes?
– Perhaps that is so. Whatever the reason is, I cannot say that there has been a proper experience of these provisions. Wc are not suggesting that they should be cut out of the civil proceedings although I am a little apprehensive about the extensions of the New South Wales rule. But we are not prepared to say that we are opposed to them in civil proceedings. Not having had any experience of them in criminal proceedings, not having had any real practical working of them in civil proceedings to the full extent that they are provided here, our feeling is that we would like to see them operate in this Territory in civil jurisdiction before they are extended to criminal proceedings. That is in accordance with what was originally proposed in the Ordinance.
Broadly, that is our approach to the mater. We do not say that essentially they are bad. We need to be extremely cautious, as I think appears from the second reading speech, in dealing with criminal matters. We feel that we would like to see how these provisions operate in the Territory in civil jurisdiction. Let them remain where they would have been with respect to the proposals in the ill-fated Ordinance, but let us see how they opera’ e for a while before we extend them to the criminal proceedings.
– Supplementing the remarks made by Senator Murphy on this aspect of the Bill, I wish to cite one or two examples that fall within my own experience in the civil sphere which, I think, underline the dangers of extending these provisions into the criminal sphere. As Senator Murphy said, even though similar provisions do exist in relation to civil actions in New South Wales, they are in fact very rarely availed of in practice. Let us look at the terms of clause 29 and consider what could be done pursuant to that provision in a civil action. Let us take as an example a common law action for damages for personal injury occurring at the steel works at Port Kembla. I choose that example because in my own personal practice T have conducted many such actions.
A material witness to the events that are the subject of the action might be, say, a Yugoslav migrant. The steel works at Port Kembla employ many such people. Before they come to this country, some of them are Macedonian peasants with no acquaintance whatsoever with secondary industry, no knowledge of the language and completely strange in their new environment. Such a man might be a witness of an industrial accident. Shortly after such an accident occurs, it is the practice for a safety officer or an industrial officer employed by the company to investigate the circumstances of the accident, to take statements often with the assistance of an interpreter and to reduce those statements to writing, have them signed and witnessed by a justice of the peace and preserved against the possibility of just such litigation.
It also frequently happens in practice there, or it has in the past, that such people do not stay in Australia a great length of time; they go back to their mother country. Under clause 29, such a statement would fulfil the requirements of this Bill. It would come into the category defined by that clause. Clause 29 provides: 1 Where direct oral evidence of a fact would be admissible in a proceeding–
Clearly the evidence contained in such a statement would be admissible as oral evidence if the man were persent: . . a statement made by a person in a document tending to establish that fact is, subject to this Parliament, admissible in a proceeding as evidence of that fact if the maker of the statement had personal knowledge of the matters dealt with in the statement–
As indeed he would - and if–
He may have moved away from the Port Kembla area and gone somewhere else leaving no forwarding address. All of these requirements would be fulfilled. Counsel for the company, after the plaintiff had given his evidence tending to show that he had been injured by some negligent act of the company, could produce this statement and it would be. unobjectionable at the suit of the plaintiff except, I admit, for the safeguard which is provided by clause 32 of this Part which gives the presiding judge a discretion to reject such a statement if he decides that it was made under certain circumstances.
As I say, in practice I have not known counsel for the company, even though I have known counsel in many cases, to be armed with just such a statement to make an application to tender such a statement in evidence. For some reason or other, I have never encountered this. Perhaps the reason is the one suggested by Senator Durack, namely, that counsel in New South Wales are so steeped in rules against the admission of hearsay that it has not occurred to them to try to introduce such a statement
– I was not directing my remarks to counsel in New South Wales only.
– I am confining myself to my own experience. But, in any event, under this clause I can see that there would be an opportunity for an enterprising counsel who was able to argue his way around any of the prohibitions or hedging in provisions contained in clause 32 to get such a statement into evidence. I believe that it would be a most dangerous thing for such a statement to be injected into the transcript of the case and to be considered as part of the case. I say that for obvious reasons. This is the sort of evidence which requires to be very severely tested in cross-examination. I am not reflecting in any way on the character or veracity of the type of person about whom I am talking. But because of his cultural background and the circumstances in which he finds himself, such a man may put into a statement matters which just will not stand up under cross-examination. He may have been over-borne, not in any deliberate or bullying sense, by the circumstances in which he makes his statement. He may feel that his job is in peril in some way if he does not give the answers which are, suggested to him by a foreman. If the evidence is to have any real weight, I suggest that it would need to be made by the man in person and would need to be tested in cross-examination. I would not like to see that sort of evidence admitted in a civil action and I say that, in practice, I have not seen such evidence tendered. But, as Senator Murphy has said, even though we feel these inhibitions about this sort of evidence even in a civil proceeding, we do not feel that there is an absence of safeguard.
For instance, I have pointed to clause 32. I would hope that the average judge would avail himself of the provisions of clause 32 to receive any such evidence with great caution. But a criminal trial is a different matter. We feel that, because of the dangers that are inherent in the admission of this type of document into evidence, we would like to see these provisions tested in the civil jurisdiction for some time before they were extended to the criminal jurisdiction. In this Part there is another clause - clause 31 - which imposes some restrictions on the admission of such a document, but we consider that it does not go far enough. The clause limits the admissibility to a certain set of circumstances which would not meet all the circumstances that could arise. We do not think that clause 31 provides sufficient safeguard for us to feel happy about this kind of code applying to criminal proceedings.
– I must say that I feel that bo’h Senator Murphy and Senator James McClelland are adopting an unnecessarily cautious approach to the applicability of Part VI of the Bill. Part VI is designed to bring about a change in the law of the evidence in the Australian Capital Territory so far as it relates to the admissibility of documentary evidence. Prior to the ordinance coming into force last year the law in the Territory was such that the courts preferred to see witnesses rather than documents. That did have the unfortunate consequence that in many cases cogent evidence could not be considered. One should not forget that plain’ im with rights to assert could often be in difficulties if, for example, medical evidence which could be given in support of their case was not given because in the period be’ween the examination being made by the doctor and the case being adjudicated in the courts the doctor had died. In those circumstances there is no question that a plain’iff is prejudiced unless there is some way in which what may be vital evidence is able to be brought before the courts. The vital evidence may be that on the initial examination the doctor discovered a certain condition and diagnosed it in a certain way and whether that is consistent with what subsequently transpired. Under the old provisions, if the doctor died there was absolutely no way in which that evidence could be brought in. It was to meet situations such as that that provisions of the character of those contained in Part VI of the Bill were introduced initially into the law of evidence in England in 1939. They were introduced into the law of evidence in my State, Victoria, in 1955.
– They were introduced in Queensland in 1962.
– I am indebted to Senator Byrne - in Queensland in 1962. They were introduced in New South Wales in civil proceedings in 1954. From my experience I think they have a utility in the conduct of civil proceedings. Possibly their utility is no: as great as it could be because I believe there is a tendency on the part of practitioners to feel that judges construe these provisions somewhat rigorously against the persons who seek to rely upon documentary evidence. Accordingly not as many applications are made as could be made to have the documentary material brought before the courts. But this is all in the realm of civil proceedings. I gathered that, while a certain caution was expressed by Senator Murphy and Senator James McClelland as to the advisability of these provisions in civil proceedings, they are not challenging that area of operation. What they are challenging and what they are seeking to do by way of amendment is to exclude the operation of these provisions in regard to criminal proceedings. I think that as a general rule if material is admissible as evidence in civil proceedings prima facie the same conditions of admissibility should apply with regard to criminal proceedings. Because there is a risk of prejudice to an accused person and because the accused person is in jeopardy in a way that a person is not in jeopardy if he is engaged in civil proceedings, the law has always clothed criminal proceedings with a particular cloak which has to be pierced in order to have certain evidence admitted. This is the view which has been taken with regard to Part VI of the Bill.
It will be noted that certain criteria apply to both criminal and civil proceedings where documentary evidence is admissible upon certain conditions being satisfied. A distinction is drawn in clause 29 (3.), which applies to civil proceedings. Clause 31 deals with criminal proceedings. It states:
Nothing in this Part renders admissible, as evidence in a criminal proceeding a statement in a document made at a time when that proceeding was pending or at a time when- it might reasonably have been contemplated by the maker of the statement that criminal proceedings would be instituted.
As far as time is concerned that avoids any suggestion that a document may have been fabricated for use in a criminal proceeding. Under clause 38 (2.) the judge is given a discretion to exclude a statement. I will read the sub-clause. It states:
In a criminal proceeding, the judge may refuse to admit in evidence in pursuance of this Part a statement in a document tendered in evidence if he has reason to doubt the reliability of the document or is satisfied that it would be unfair to the person charged to admit the statement in evidence.
I think that is a guarantee and a protection to the accused person. If that does not take the situation far enough, clause 76 does. It states:
Nothing in this Act affects the court’s discretion to exclude evidence in a criminal proceeding if the court is satisfied that it would be unfair to the person charged to admit that evidence.
Throughout the Bill there are protections - admittedly reposed in the court. I believe that all of us who practise law accept that the discretion exercised by judges as to what may or may not be introduced in evidence is a very real safeguard to accused persons.
– Depending on the judge.
– -I accept what Senator Murphy said. I suppose history reveals particular exceptions, but I believe that Australia is tremendously well served by its judiciary. I make the statement that I am making on the basis that the judges do exercise their discretion in a way that generally works in favour of the accused rather than in a way that prejudices him.
– I think all of us would agree with that. That is the general rule, but there are exceptions.
– I think they are very few. I sense that there is an overall interest which has to be preserved and which is preserved by ensuring that a prosecution is not nullified by inability to put before the judge and the jury relevant material and leaving it to the judge to exclude the material if it is or if it would be unfair. These provisions are not new provisions. As 1 said in my second reading speech, the provisions permitting the admissibility of documentary evidence were introduced in England in 1965 by the Criminal Evidence Act, and similar provisions have since been introduced in New
South Wales, Victoria and Western Australia. In New South Wales similar provisions were introduced in 1965. I think it is incumbent on those who would seek to exclude the applicability of these proviions to criminal proceedings to show where they have operated unfairly in the 6 or 7 years that they have been in operation in the United Kingdom and New South Wales and in the periods for which they have been in operation in the other States of Australia.
I had not heard in the almost 12 months that these provisions have been in operation in the Australian Capital Territory that their application had excited comment. I should have thought that, with the discretion reposed in the judges who sat in the Australian Capital Territory, no problem was likely to be experienced in this area. I can only suggest to Senator Murphy and his colleague that the provisions are reasonable. They do permit the use of documentary evidence in a way that documentary evidence ought to be admitted where exceptional circumstances preclude the direct appearance and attendance of the person who made the statement in the document and where the admissibility and weight to be given to the statement is clearly preserved by express provisions entitling the judge either to exclude the evidence or to diminish the weight to be given to it. I think the provisions are reasonable and I do not think they would be prejudicial to an accused.
– This departure which is contemplated in the Bill is most important. Senator Murphy has approached its extension with some concern. The basis of Senator James McClelland’s concern apparently rests on the fact that it is a new provision applied in a criminal jurisdiction. He feels that more experience should have been gained in the application of this principle in the civil jurisdiction. That may be an appropriate comment, but surely enough time has gone by to have observed the operation of it in the civil jurisdiction. As it has operated also in criminal jurisdictions in the States which were mentioned by the Attorney. General (Senator Greenwood) and has operated in England, there must be now a great volume of experience available as to how it has operated in all those places where this extended law exists.
It does not operate in all States of Australia but only in the ones mentioned by the Attorney-General. For example, it does not operate in Queensland - at least I do not think it has been applied there to criminal proceedings. I propose to cite from An outline of the Law of Evidence’, second edition, by Rupert Cross and Nancy Wilkins in relation to records admissible in criminal cases under the Criminal Evidence Act 1965. The book states at page 125:
In any criminal proceedings, where direct oral evidence of a fact would be admissible, any statement made by a person in a document which is, or forms part of, a record is admissible as evidence of that fact provided the following conditions are satisfied:
The record relates to any trade or business end was compiled in the course of that trade or business.
The record was compiled from information directly or indirectly supplied by persons who have, or may reasonably be supposed to have, personal knowledge of the matters dealt with.
To put the matter in context I read the explanation, which states*
The Criminal Evidence Act, 1965, was passed in order to obviate the principal effects of the decision of the House of Lords in Myers v. Director of Public Prosecutions according to which motor manufacturers’ records were inadmissible at common law as evidence of the numbers on cylinder blocks placed in engines bv workmen who had long since ceased to be identifiable or who have any recollection of the matter. If the workmen had been identified and proved to have been dead, the records might have been admissible as statements made by deceased persons in the course of duty.
Although its wording is, to a large extent, similar to that of the Evidence Act, 1938, set out in the previous article, the scope of the Act of 1965 is much narrower because it is confined to records kept for trade or business purposes, lt does not. like the Act of 1938, extend to statements made to solicitors or police officers by potential witnesses who have died or gone abroad, or to letters containing relevant assertions. Such statements, as distinct from records, will generally only be admissible in criminal cases as agreed statements of fact, discussed in article 49. Even then, the requisite consent is only likely to be forthcoming when the evidence is of no great importance.
The conditions of admissibility are more liberal under the Act of 1965 than under that of 1938, in three respects. First, the fact that the supplier of the information recorded was a person interested does not render the record inadmissible though it may affect the weight to be attached to the record. Secondly, the Act of 1965, unlike that of 1938, allows for the reception of records where the information is supplied indirectly to the person compiling the record. Thirdly, to be admissible under the Act of 1965, the record need not be a continuous one.
In the Act of 1965, ‘document’ includes any device by which information is recorded or stored. This is wider than the wording of the Act of 1938 under which document’ includes simply books, maps, plans, drawings and photographs. It is doubtful whether either definition is apt to cover all computerised records. As I understand it - the Attorney-General may care to correct me on this - apparently this extension to the criminal law is not in any way apart from the discretion given as cited by the Attorney in his last comment. There is no circumscription of this as against the principle applied in the civil jurisdiction. Apparently in England there is a limitation on the information; it must be information which, as has been said, is much narrower, because it is confined to records kept for trade or business purposes. If, therefore, we are looking at the experience of this provision operating in other jurisdictions, the experience in England would be of very great moment, but if the English Act is so much narrower and confined in that area the English experience would not be particularly pertinent or compelling.
The fact that the Act has operated now for 6 years with some experience would not necessarily be a cogent fact persuading us to the adoption of a similar principle in our law. As I read it - perhaps the Attorney would be kind enough to indicate to me whether I am correct - there is no particular qualification or circumscription of this principle in its application to the criminal jurisdiction. It is as wide in the criminal jurisdiction as it is in the civil jurisdiction, unlike its English counterpart. That might well affect the attitude that could be taken in relation to this matter.
– The legislation before us is, in its general language, the same as the English Act of 1939. However, there is one exception, quite apart from the exception to which I referred earlier, which distinguishes the application of these English provisions in their criminal area as brought in by the 1963 legislation in England. The provision to which I refer is contained in clause 29(3.)- If Senator Byrne refers to that provision he will note that it is expressly limited to civil proceedings. It states:
Where, in a civil proceedings, direct oral evidence of a fact would be admissible, a statement made by a person in a document tending to establish that fact is (whether or not it would be admissible under the preceding provisions of this section) admissible in the proceeding as evidence of that fact if-
Then follow 2 conditions which must be satisfied. Those 2 conditions are the requirement of personal knowledge of the matters dealt with in the statement and that undue delay or expense would be caused by requiring the attendance of the maker of the statement. That may be a convenient way in a civil case of having documentary evidence tendered, where the maker of a statement is not present and available to be cross-examined, but certainly it is not adequate in terms of criminal proceedings. In criminal proceedings it is necessary to show, as is provided by clause 29(1.), that the maker of the statement had personal knowledge; that the maker of the statement is dead or out of Australia and that it is not practicable to obtain his attendance; that the maker of the statement is unfit by reason of old age or his bodily or mental condition to appear as a witness; or that he cannot with reasonable diligence be found. Suppose a statement is made by a person who had personal knowledge of the events which are involved in the criminal proceedings. 1 think to the minds of most of us to have a person’s statement produced in court in that sense and not be able to cross-examine the person who made the statement is to create a situation where I believe injustice could be imposed upon an accused person who challenges that account, and he has no way of rebutting the document. If that situation arises, with alf the conditions having been satisfied - that the maker of the statement is dead, that the maker of the statement is outside Australia - we are forced back to the discretion of the judge. Of course, we have to decide as a matter of balance whether that discretion may be vested in a judge. After all, I think we have relied in times past - we can rely in the Australian Capital Territory - upon the judges to exercise that discretion in a way that will not work hardship or injustice on an accused person.
I refer to clause 76’ and clause 38 (2.) to indicate the scope and the width of the discretion which is available to the judge. To that must be added, of course, the further provision contained in clause 31 that nothing renders admissible in a criminal proceeding as evidence a statement made at a time when that proceeding was pending or at a time when it might reasonably have been contemplated by the maker of the statement that criminal proceedings would be instituted. I think that is the sort of situation which overcomes that passage which Senator Byrne read from Dr Cross’s book. I refer the honourable senator to that part which indicates that the English provision did not admit statements made to solicitors or police officers by potential witnesses who have died or gone abroad, or letters containing relevant assertions. Some of those letters would be admissible under the Australian provisions which we are here contemplating, but I imagine that statements made to a police officer certainly would not be admissible because it is highly probable that they would be made at a time when proceedings were pending or when it might have been reasonably contemplated by the person who was making the statement to the police officers that criminal proceedings would be instituted.
As for the general weight which is to be given to a statement which is introduced, I draw Senator Byrne’s attention to clause 32 of the legislation. This is comparable to the provisions which are contained in the language of the Australian statutes which introduce the admissibility of documentary evidence in criminal proceedings. Clause 32 states:
In deciding the weight (if any) to be given to a statement admitted in evidence under this Part, a court shall have regard to all the circumstances from which an inference can reasonably be drawn as to the correctness or otherwise of the statement, including . . .
The clause then sets out such things as the time the statement was made in relation to the occurrence or existence of the event which the statement is tendered to prove, the question whether or not the person who made the statement might be supposed to have had any incentive to conceal or misrepresent the facts, and whether or not there was an adequate basis, where it is a matter of opinion, for the making of that statement. Clause 33 provides for a further protection in relation to a statement which is admitted under clause 28. This is not to be treated as corroboration of evidence given by the maker of the statement. One obviously would not expect otherwise.
All of these provisions are designed to ensure that in the applicability of the provisions to the criminal area there is adequate protection along the lines I have indicated. I have no doubt that the matters to which Senator Byrne adverted and the matters to which Senator Murphy and Senator James McClelland adverted were considered by the persons who comprised the committee which established this legislation. I do not think for one moment that Mr Justice Fox is a person who is concerned to treat lightly the right of accused persons in trials in the courts of law. I think he has illustrated that on many occasions. I think the other persons who participated - Mr Justice Mason, Mr Harding, Professor Waller, Dr Cross and the officers of the Attorney-General’s Department - have achieved in their approach to this a fair result. I can add only those persuasions which I have mentioned - that the weight of professional opinion which was to look at these matters ought to be added into any scales which may require to be balanced to support what are the considerations plainly to be seen in the language of the legislation which is designed to hedge the general admissibility of documentary evidence in criminal proceedings and to ensure that there is a protection to the accused in the discretions which are vested in the judge who tries the matter.
– I am indebted to the, Attorney-General (Senator Greenwood) for his comments but, with respect, the Attorney-General directed his mind to what he called the hedging provisions which protect persons affected by this clause from any element of unfairness or anything of a prejudicial character. I agree with that but what I am directing my mind to is the are.a within which this type of evidence can be given, and not the protections that are given if the evidence is purported to be presented.
As I say, the English law does not extend the whole of the availability of this type of provision in the civil law to the criminal jurisdiction. It seems to hedge around it. It ties it down expressly to the. Criminal Evidence Act 1965. lt is confined to records kept for trade or business purposes. If my reading of the provision is correct it is an extraordinarily limited application of the principle. After all, in the searching of commercial records we can see very many reasons why this may be a condigne principle in that limited area. As a matter of fact, as stated in this book to which I made reference, the 1965 amendment to the Criminal Evidence Act stemmed from a decision of the House of Lords in Myers v. the Director of Public Prosecutions, according to which motor manufacturers’ records were inadmissible at common law as evidence of the number of cylinder blocks placed in engines by workmen who had long since ceased to be identifiable or to have any recollection of the matter. I suppose that is a very practical reason why, within the area of trade and commerce, such a provision should be applied in the criminal jurisdiction.
– I think we would all agree to that kind of extension.
– Yes, I think that would be right. I think it is very reasonable, very logical and very compelling. But I would be pleased if the Attorney-General would give us a further comment as to whether, in the absence of any such circumscription and in the application of the principles generally over the criminal field and over all areas of operation, he would still consider that so extending it merely with certain qualifications and protections would be a proper course to pursue and whether perhaps he should not reconsider this matter in the light of information from Great Britain as to the operation of the Criminal Evidence Act 1965 with the limited extension there given; that is, whether that is proof of some value or whether it is inadequate proof. I do feel that this is a most important principle. If we are to take the initiative in this extension it will certainly be a very big leap forward. It will be a very much bigger leap forward than Britain made at that time in 1965 after 30 years.
– Or backwards.
– Or backwards, whatever it may be.. I appreciate the comments of the Attorney-General but very often it is rather like the old situation when an accused was not allowed to give evidence on his own behalf and then he was permitted to give it. Some people said that one finally finished up operating almost prejudicially to the accused by permitting him to give evidence. The same thing could happen here. We may appear to be giving an advantage to a person but we may be giving a disadvantage. On the other hand, we might be depriving a litigant of legitimate access to records which would exculpate him or at least give him a chance of success.
– How would that come about?
– That is what the Attorney-General said - that the denial of this provision could operate to the prejudice of an accused. I think that was the Attorney-General’s proposition. I agree with that. But we must not think that this provision will tell always against the accused, lt may tell in his favour. The Attorney-General says that deleting it may be prejudicial to the accused; whereas, in fact, at times it could be of benefit to the accused. I think that was the AttorneyGeneral’s proposition. He may be quite right. We are being asked to take this big leap forward - it would be a very big leap forward - in the absence of some element of certainty and in the absence of some information as to why in Great Britain as far as they were prepared to go was to operate within this very limited and very logical field. So I would be a little concerned about supporting the proposition. I do not say that finally and definitely; but I would have some very deep concern about supporting it in these circumstances.
– I respond to the invitation from Senator Byrne. I appreciate his concern and I see where the considerations to which he has adverted lead him. But I must say that I am a little at a loss to know why those considerations to which he has adverted trouble him in the way they do. When I look at the English Act and the New South Wales Act I find that the provisions, which were introduced 7 or 8 years ago, state that documents which form part of a record relating to any trade or business compiled in the course of that trade or business may be admitted in evidence. 1 fail to see why those documents are acceptable as documents to be admitted in evidence whereas other documentary evidence is in some way unacceptable. That, to me, is a difficult proposition to accept unless one relies simply upon the basis that in England 7 or 8 years ago it was decided to introduce that provision in relation to commercial records. I imagine that the commercial records provision was introduced because it was Myers’ case specifically which was desired to be overcome.
I think it is fair to say that the legislation with which we are concerned here is quite deliberately broader in its scope than the English provisions and the provisions in New South Wales. I am assured by my advisers that that was the way in which the committee consciously made this decision. I cannot speak as to what part Professor Cross played in this particular area; but, of course, be was consulted about this matter. One would suppose that if there were problems arising from the English experience they would have been adverted to; or, more accurately, if the problems arising from the English experience were such that they questioned the extension here proposed, then that would have been apparent in the end result which was forthcoming. 1 pose this somewhat rhetorically: Why should not direct oral evidence of a fact or of an opinion-
– Or of an opinion?
– That is very wideranging.
– I quite agree, but that is the scope of the provision, lt relates to direct oral evidence of a fact or of an opinion which would be admissible in a proceeding. That immediately cuts down the width of what otherwise would be referred to, because there are not many cases in which opinion evidence is admissible in a court proceeding - fewer in criminal matters than in civil matters. There are few people whom the law regards as sufficiently equipped to express their opinion in court and to have it admitted as evidence. That is a matter of practice.
– In an insanity defence, for example, the opinions of medical men may be given.
– Professional people are in the position that they can have their opinions admitted as evidence. But, apart from professional people, there are not many instances, if any at all, to which we can point, of opinion evidence being receivable in the courts.
– That could be critical evidence. Often it is critical evidence.
– It is critical evidence, of course, in a plea of insanity in a criminal case. Also, in probate or testator’s family maintenance litigation in which the competency of the testator is involved it can be highly critical. But the point I make is simply this: If that sort of opinion evidence or evidence of fact could be admitted if the person was present to give it, are there any circumstances in which, if the person who made the statement in a document is not available because, for example, he has died, is outside Australia and cannot be found, is unfit by reason of old age or his bodily or mental condition to appear as a witness, or cannot with reasonable diligence be found, that document should be excluded both for the purposes of the prosecution, which might want to rely upon it, and for the purposes of the accused? One might suppose that a prosecution has available to it many more resources with which to overcome the problems in getting hold of the maker of a statement who is not available. The accused has fewer resources. If he had an opinion from a doctor as to the event or occurrence which is crucial or an opinion from a doctor as to his condition at a particular time, and he is not enti’Ied under any provision to have that statement introduced in evidence, he is the person who is penalised.
– No. not necessarily. It might be a statement adverse to his personal claim and he might particularly want to test it.
– In adversary proceedings all that he is concerned about and, I think, all that we are concerned about in this area is that type of statement which a party, be it prosecution or accused, wishes to tender to advance or further the case it is concerned to prose cute. I just pose for consideration - it fs a matter of weighing the various factors in the balance, as Senator Byrne indicated before with regard to the possible prejudice to an accused person - that if these statements are not able to be introduced in evidence and to be assessed either by the judge or the jury we are shutting out relevant material which could make all the difference to the result and we are shutting it out because the maker of the statement is either dead or unable to be present. They are considerations which have to be borne in mind.
If one looks at the third edition of Professor Cross’s book, one may find some passages which will be of some assistance to Senator Byrne, seeing that he drew some assistance from Professor Cross’s joint work earlier. Talking of the Criminal Evidence Act of 1965, which was the one with which Senator Byrne was concerned, Professor Cross said:
The Act is presumably, only intended to be a palliative pending a complete overhaul of the law of evidence by the Law Refrom Committee and the Criminal Law Revision Committee respectively. It may, however, be helpful to note the points in which the Act is more liberal and more restricted than the Evidence Act 1938, its counterpart in civil cases.
If honourable senators will bear with me, I will read out the respects in which the Criminal Evidence Act is more liberal and those in which it is more restrictive. Dr Cross stated:
The Act of 1965 is more liberal than the Act of 1938 in five respects:
The fact that the information was supplied by an interested person does not render the record inadmissible as it would be under the Act of 1938 on account of s. 1 (3).
– I may have read that from my edition.
– Yes. I shall not read the following passage elaborating on that. Dr Cross continues:
The author then goes on:
There are two respects in which the provisions for the reception of hearsay under the Act of 1965 are more restricted than those of the Act of 1938:
The Act of 1965 is confined to records, whereas Idlers, proofs of evidence and all manner of documents may be received under the Act of 1938.
The Act of 1965 is confined to records relating to any trade or business and compiled in the course of that trade or business’.
After a passage which 1 shall not read he goes on: lt remains to be seen how the terms ‘trade or business’ will be construed by the courts, but it is unlikely that they will be. held to permit the reception of n doctor’s records, or regimental records under the Act of 1965. A soldier’s regimental records will continue to be inadmissible in criminal proceedings as evidence of the fact that he was abroad at a particular time, although they arc admissible for such a purpose under the Evidence Act, 1938.
In the final conclusion Dr Cross states:
There may well be cogent reasons against a complete assimilation of the law of evidence in criminal and civil cases, but there is little, if any, rhyme or reason in the distinctions which have bien mentioned in this section.
With respect, 1 think that the distinctions which appear to have attracted the interest of Senator Byrne are distinctions which have little rhyme Or reason. I must say that I think that if one is prepared to admit as records in a criminal case certain documents relating to business which is being carried on, it is hard to see on what logical principle one can exclude documentary evidence of the character of doctors’ opinions or of facts related by doctors which an accused person may want to rely on and tender in evidence on his own behalf, just as a prosecutor may want to tender them. We must recognise that this legislation is a step forward. As Dr Cross said, he would presume that the English Act is not the last word on the subject and providing that we have the safeguards which I believe we have, then we should not be over cautious in taking steps forward. As Senator Byrne said during the second reading debate, in Australia we have been slow in taking steps forward. If we have the precaution of this legislation we should not be similarly hesitant in this field.
– Here wc are dealing not with an extension in civil matters but with whether whatever we do in regard to civil proceedings should apply to criminal proceedings. I am referring to the admissibility of statements in documents. The last matter raised by the AttorneyGeneral (Senator Greenwood) was about the position of an accused who might want to tender a statement under these rules. If an accused person had a document which somehow fitted under these rules, such as a dead doctor’s written notes or something which went to exculpate him and if the Crown were satisfied that they were correct but. for some technical reasons could not be admitted, I would be astonished if. in this country, we reached the stage where the Crown endeavoured lo exclude the accused person from attempting to have that material admitted.
– I think the honourable senator said that there have been harsh prosecuters from time to time.
– Yes, but I would be astonished if that were the attitude. I think that probably in some way an accused could get this material into his statement from the dock even if he had, in some way. to read it. I see there are suggestions that such a statement need not necessarily be restricted to an oral statement. 1 do not think we should approach this matter on the basis that the accused is going to be injured if, in some way, the rule is not extended. The references which have been made to the protective clauses do not seem to us to be really good enough. Clause 31 is restrictive. Certainly it deals with the position where proceedings are pending or contemplated. There are some other provisions about the discretion to exclude. They are not quite what we think they should be because they put the probability of unfairness instead of the possibility of unfairness.
We are dealing with the admissibility of statements in documents. Anyone familiar with proceedings, whether civil or, more so, criminal proceedings which are triable by a jury, will be aware of the powerful effect of a statement in a document. For a start, the evidence is heard orally by a jury. When it is heard by a judge he has the advantage of going over a transcript and looking at it. By and large, I think the tendency is to pay greater regard to the oral evidence than to any statement in a document. But it is well known that in civil proceedings if one can produce a statement when a person comes before a jury that statement is one of the few objects which may be with the jury in the jury room. All the oral evidence has been said and gone. It may have left some impression upon the mind but it is nothing like the document which is with the jury containing a partial version, perhaps, of what has been said and which remains with the jury. This has a most powerful effect. Also in the circumstances which are envisaged, in part this is a piece of evidence which is not subject to the test of cross-examination because the person who prepared the document is not there. I think that these are very strong reasons why we should be extremely anxious about extending in one swoop from the civil to the criminal area.
Again, I should like some assistance from the Attorney-General. It is my recollection - this point has been raised - that under the Evidence Act of New South Wales, the relevant provisions, when they were introduced certainly restricted the use of such documents in civil proceedings to non-jury cases. I am talking about the general extension of these provisions. To my recollection those were non-jury matters. If the Committee applies its mind to this it. will find that we are doing 2 things. Firstly, we are going to extend this provision to the jury cases where it was thought proper to confine it to the non-jury cases. Secondly, we are going further than that; we are going to take it over generally into the field of the criminal law.
I think that that is a very strong step to take. If we are to take this step I would have preferred a set of extensions whereby the kind of things affected were detailed. I do not mind dealing with regimental rolls as I would with bankers’ books. If this problem is arising in various other categories we should decide upon a simple method of proof in cases where books or records are kept in such a way. The community is pretty well satisfied that these documents are kept in a satisfactory way. I refer to such things as the journals of the House, bankers’ books, regimental rolls and all these other documents. Let us cut through the red tape and say that they are admissible. They would be subject to rebuttal but let us have a simple method of proving matters in that way.
In the present case we are extending across a whole field of things. Simply because person cannot be found with reasonable diligence, these facts, or opinions, are going to be available for use against persons in civil proceedings. They may even be brought in in criminal proceedings. This is not a step to be embarked upon lightly. I would have preferred the simple step of extending in defined categories about which we were quite happy, to take those over into the criminal law rather than make this wholesale extension of hearsay evidence into the criminal area.
– I do not know whether the Committee really has given this matter the consideration that it feels it warrants. I do not suggest for one moment that the issues canvassed by the Leader of the Opposition (Senator Murphy), and canvassed earlier by myself and Senator Byrne, are not fresh in our minds and that we are not well seised of what is involved. However I must say that I see enormous complications arising out of any precipitate act which does not take account of what might occur. I do not think those things are adequately catered for by the amendments which have been moved, if it is the wish of the Committee to adhere to Senator Murphy’s point of view. I am conscious of the fact that if those amendments are carried there will be criminal proceedings in which there are no provisions whatever for the admissibility of documentary evidence. That is an issue which concerns me. I would like to give more consideration to this. I do not expect that following the resolution of this issue the balance of the Bill will be passed this evening. In the circumstances it might be agreeable to the Committee to report progress or to defer consideration of these clauses. Perhaps it would be best to defer further consideration of the amendments to these clauses and proceed to the next Part or some other Part in order that some consideration can be given to both the issues canvassed and the other consequences if a certain view is adopted - 1 do not know whether it will be adopted - which might create a problem which none of us wants to see.
– The Opposition has no objection to that course being followed.
– I move:
Question resolved in the affirmative.
Clauses 39 to 45 - by leave - taken together.
– The Opposition sees no difficulty with these clauses, assuming that there is to be an amendment of some kind to Part VI of the Bill. However, we would not like to be prejudiced in the consideration of Part VII of the Bill by anything that may or may not occur with respect to Part VI. The Opposition really does not oppose the substance of Part VII except in respect of clause 45. In fairness, if there are considerations which would affect Part VI, we would not like to lose any ground in respect of Part VH. By agreeing to Part VII we do not anticipate giving away anything that is involved in Part VI. Subject to that, we would not mind dealing with Part VII if the Attorney-General (Senator Greenwood) would prefer to go on with it.
– lt might be advisable - I am prepared to move accordingly - for us to do as we did with Part VI and to postpone consideration of Part VII also. If the viewpoint which the Leader of the Opposition (Senator Murphy) has been urging prevails with the Committee, it would be highly anomalous that computer records should be admissible in criminal proceedings and other documents, hedged with various discretions of the character contained in Part VI, are not admissible. It may be that I am putting this on a different level but I think both ought to be linked because similar considerations must apply. I think there is prudence in adopting that course. I move:
Question resolved in the affirmative.
Clauses 46 to 51 - by leave - taken together and agreed to.
Clauses 52 to 65 - by leave - taken together.
– Perhaps some questions may be asked about clause 52 but I want to move on to the main matters with which we are concerned. The first of the main matters relates to clause 54. This raises the question of the compellability of spouses and the compellability to disclose communications made between them during the marriage. We on the Opposition side do not suggest that this is an easy matter. There may be some problems. As the Government is willing to sort out these problems I point out that what we want to arrive at substantially is a state of law where the spouse is not compellable - a state of law where if he or she does give evidence there is no compellability to disclose communications between the spouses. I envisage the position where a spouse may decide to give evidence. The further question arises, in a case where a spouse is a witness, whether the spouse should be compellable to discJose communications. That is our general approach.
We think that that ought to be the rule in civil proceedings and that it could be expressed as simply as that. One might say: Should not the spouse be compellable at the instance of the other spouse even in a civil proceeding?’. We concede that if one spouse is not happy to give evidence at the instance of the other there is not much of a relationship left. The amendments which 1 have proposed in the circulated documents are aimed to achieve that. My first amendment in relation to this Part deals with clause 54 which reads in part: (2.) The wife or husband of a party to a proceeding (not being a criminal proceeding) and the wife or husband of a person on whose behalf such a proceeding is prosecuted or defended is a competent and compellable witness in the proceeding and is compellable to disclose communications made between them during the marriage.
I think I should correct what I said earlier because the provisions of sub-clause (2.) were designed to deal with the possibility of some litigation interspouse or some matter in which there may be some commercial difficulty in which they had some adverse interest We think that it is not worth while to provide that this relationship between the spouses should be able to be broken down by other parties or that they should be caused by them to disclose communications simply because of some civil issue. 1 will deal with criminal matters later. We recognise that there are cases where this sub-clause might cause some injustice. One can conjure up cases. We also recognise that it has been a policy of the law for an extremely long time that the relationship between the spouses and the privilege which attaches to their communications should not be invaded. One would think that should be so except for some extremely serious reason.
I think it was at the first Commonwealth Law Conference to be held in Australia that the Chief Justice of India said that the law is full of technicalities and necessary procedures and that sometimes the observance of these technicalities or procedures leads to injustice. He said that one cannot expect perfect justice, but that if we are to have it done with a degree of efficiency, if we are to provide that injustice is not done the other way by providing so many avenues of appeal and so many protections, etc., one has to accept that there will be certain injustices through the operation of procedural rules. So the public interest is balanced. Here, there is a very powerful public interest in preserving the relationship between the spouses free from invasion of that privacy by forcing one spouse to give evidence against the other and especially by forcing one spouse to disclose communications which have been made between them. That is the basis of our approach. We do not deny that on occasions this may work some injustice but we feel a terrible breach in this court prin ciple would occur if we were to make spouses compellable witnesses and compellable to disclose communications made between them during the marriage. Is this a logical approach to marriage in the case of a civil proceeding? Clause 54 (1.) states:
A party to a proceeding (not being a criminal proceeding) and a person on whose behalf such a proceeding is prosecuted or defended is a competent and compellable witness in the proceeding.
Clause 54 (2.) states:
The wife or husband of a party to a proceeding (not being a criminal proceeding) and the wife or husband of a person on whose behalf such a proceeding is prosecuted or defended is a competent and compellable witness in the proceeding and is compellable to disclose communications made between them during the marriage.
We feel that this is going too far and that the interests of the pursuance of civil proceedings are not such that that immense breakdown should occur in this extremely important principle. Broadly, that is the basis upon which the Opposition approaches the matter and it is the intention of the amendment to change this. We hope that will be achieved by what we have proposed.
– This is an area in which the law is less important than one’s approach to social questions. That is the way I view the position. The view one takes on this matter depends largely on whether one takes the view that the sanctity of the marriage is as real these days as it was in more mediaeval times when this rule was initiated. I sense that a very real problem exists in regard to what ought to be the limits to which a person should be required to give evidence. Yet, once one embarks on an inquiry into the truth and what are the facts of a given situation, it is hard to draw a line somewhere along the process. I believe that this is what is involved in Senator Murphy’s proposition. Let us look firstly at what the legislation proposes. It proposes that in civil proceedings a person who has instituted the proceedings is entitled to call his wife to give evidence. His opponent is entitled to call the wife of the plaintiff in order that she may be examined and possibly give evidence which will be destructive of the case which is being made by the plaintiff. I do not know that that arouses in me a feeling that it is a situation that ought not to be allowed to arise because the rules under which evidence is to be given preclude it from happening.
– Under the Opposition’s proposed new clause, she can come if she wants to. but the exising clause forces her against her will.
– It does. She can be compelled to give evidence. It is a question of how one approaches this matter in terms of social policy and morality. Senator Murphy takes the point that it is wrong to compel her to come. I suppose that if it is wrong to compel her to come it is wrong to compel her to answer any questions related to the matter whatsoever. I think that proposition contains the very real problem that injustice can occur because one party who knows the true facts and who is known by the person who is being sued in the civil proceedings to know the true facts is not enabled to call that person to prove, for example, that the story told by her husband is a complete lie. I sense that a very real problem arises in solving that. Yet to make a person compellable and to give some sanctity to communications which may have passed between spouses during the marriage is, in fact, to compel a person to come to the court to give evidence on some matters but to enable that person to refuse to answer questions on other matters because he could be asked questions relating to matters which were not communications made during the marriage. Once a person sought to probe into what were communications between the parties during the marriage which could alter the whole impact of the evidence otherwise given, a person could object to answer and that objection must be upheld. That again could cause injustice and it could lead unquestionably to weight of an entirely improper kind being given to untested evidence.
I do not doubt that Senator Murphy appreciates that these problems exist. I sense that they are there. It is a question of whether one comes down, as a matter of judgment, in making the choice. I believe that the committee which proposed this provision for this legislation made the appropriate choice. In these days, I believe that if there are civil proceedings in which a party wants to call the spouse then that party ought to be able to call that spouse if thereby the court will be given more material from which to gauge, the truth. I think that any lesser approach is an approach which is unsustainable. But I do not know how one can argue this point in a way any different from that which I have advanced.
I raise for Senator Murphy’s consideration the point that it would seem to be the position that the expression ‘the wife or husband of the party’ includes the divorced wife, or husband of the party or any person who previously had been married to the party and whose marriage has been annulled. That would seem to be the case law on the subject. No point has to be made in clause 54 as it is drafted because the making of the husband or wife of a party competent and compellable applies to the existing spouses as well as to the divorced spouses. But if the amendment which Senator Murphy has proposed were adopted I sense that different considerations would apply as to whether a divorced spouse may be called to give evidence and to disclose communications between the divorcee and his or her wife or husband as the case may be when they were married. I should think that different considerations ought to apply there.
It may be that the view which Senator Murphy holds is one which would preclude even divorced parties from being compellable to give evidence. If that is the. case no further amendment is required. But this would have widespread ramifications if, once having been married to a particular person, one could not thereafter be compelled to give evidence in any proceedings in which one’s ex-spouse was engaged - certainly not evidence as to what had passed between the parties. I suppose it is again a matter of social policy, but I think that that is taking things too far. That is how those matters appear to me on their face value, but I would be interested to hear Senator Murphy’s reaction to my own impression that what the. committee has decided in this instance is justifiable, prudent and in accordance with what ought to be facilitated in the ends of justice in the society in which we now live.
– As I have already pointed out, the Opposition takes the view that although some injustice could occur - one could conjure up cases - it is a very great principle of law that the relationship of spouses ought not to be invaded. A moment’s reflection will show that the law has created other categories in which similar objections could arise. For example, state documents are privileged. The state might, within the well known limits, object to the production in a court of documents because of some reason of state. It may well be that an injustice could result from documents of this nature not being produced. A party may think that the production of these documents will help to turn the scales in that party’s favour but the law says: ‘The interests of the state are paramount. No matter what injustice may be done to an individual state documents are not to be produced’.
The law also states that a privilege exists between a legal adviser and his client, lt may well be that if one were to call the solicitor of the other person he would say: That is not the story he told me originally’ or ‘Here is some fact or circumstance that J got out of working as his client which will blow his case sky high’. However, the other party would be unable to cause that legal adviser to come and give evidence. Indeed, the law forbids the solicitor of a client to give evidence against him. He must claim privilege. It is the solicitor’s duty to do so. That applies in criminal matters as well as in civil matters, except in some very unusual circumstances that it is not necessary for me to go into.
– There is one difference, though, in that the solicitor who disclosed prior to a court case what it was his obligation to conceal because it was a client’s privilege might find himself in trouble before his law institute or his professional academy. A wife is under no such compulsion.
– But leaving aside the exceptional circumstances and speaking generally there is a privilege attaching to communications between a solicitor and his client. That extends right across the board. I can think of much stronger reasons for saying: ‘Let us sweep that privilege away’ than I can for saying: ‘Let us sweep away the communication between a husband and his wife’. I should think that one would have much less cause to complain about one’s solicitor being forced to come and give opposing evidence than about one’s wife being forced to do that. If a litigant lost his case because of evidence given by the solicitor he would probably grumble and say: ‘Well, that is the law’. But I should imagine that it would not be very helpful to a happy conjugal relationship if he lost his case because his wife gave evidence against him, even under a subpoena.
I really think that we ought to preserve this privilege. I know that the existence of it may in some cases give rise to an injustice in that a spouse, if he or she could be called, could give evidence which would assist the other party. But one has to lake into consideration that a spouse can be called to give evidence if that spouse wants to do so. It would be a pretty rare case where a spouse who could give evidence which would be helpful to the other party would do so without being compelled by the other party to give evidence. In the practical realities of life one docs not call a witness unless one knows what thai witness is going to say.
I do not think that there would be much injustice caused in practice if the amendment were carried and we were to preserve something that the law has regarded through the ages, as being of extreme importance, namely, the privileged relationship between a husband and his wife. I suggest to honourable senators that there would have to be much more than the theoretical approach of some writers on these matters before this very great principle should be broken down. I believe that we ought to do whatever we can to preserve this principle. Unless we are satisfied that there is a real evil occurring in some way in our society as a result of the operation of this privilege, we should not do anything to break it down.
– On this matter, looking at it from the aspect of public policy, there is one other consideration which, I suggest, has to be taken into account. That is that if the law is to compel unwilling spouses to give evidence it may be introducing a greater evil than the short-comings of the law which the Attorney-General (Senator Greenwood) has pointed to and which he says he seeks to correct by this provision. He asks: Why should a case arise in which a plaintiff may have given a false account of events and that false account may be thrown out of court by the truthful evidence of his spouse who may, if this law is passed, be called upon to testify? But, surely as a matter of reality, the introduction of this provision could be said to be fostering the giving of false evidence.
It is well known among practitioners that the matrimonial courts are the scenes of perjury on a grand scale. I am not telling any secrets out of court. Every layman and every lawyer knows that so absurd are our matrimonial laws - they are held in such low regard by the community; they are so completely out of tune with modern reality - that they are flouted day in and day out by respectable people who otherwise would never think of telling lies, let alone telling lies on oath. I instance the provisions on collusiveness. Everybody knows that a great majority of undefended divorces are collusive divorces. Everybody knows that false evidence is constantly given in the matrimonial courts. Are we not perhaps fostering the proliferation of this social evil? Are we not inviting it by putting an unwilling spouse in the agonising position of being compelled to give evidence against the interests of the person in the world who may be closest to her? Are we not inviting that spouse to deviate from the truth? Is not the proposed provision substituting a greater social evil for the social evil which the Attorney-General says this measure is designed to eradicate?
– As I expressed in my speech at the second reading stage, I am concerned now as I was then about the feature of clause 54 sub-clause (2.) which takes away a privilege which has existed for more than 100 years, I think-
– 1 think that it goes back into some of the ancient laws as well.
– Well, it does not. This privilege in relation to communication between spouses was created by statute in 1851, I think.
– I am talking of ancient civilisations which had similar rules.
-], do not know about that. I think that we will confine ourselves to our civilisation - at least I will confine my thought to it. This Bill, in extending the provisions in relation to compellability, may be extending the law as it applies in New South Wales. I gather from re-reading the second reading speech delivered by the Attorney-General (Senator Greenwood) that the position in New South Wales has been one of competence and not of compellability. However, in other States and in England, it has been the rule all through this period that the spouse of a party as well as the party may be compellable to give evidence. For that reason, I could not support the proposition as contained in the amendment. It seeks to confine the spouse to being a competent witness only and not a compellable witness.
The problem that I have with clause 54 is purely in relation to communications between husband and wife. Although the statutory privilege from disclosing such communications does apply to people provided they are still married, regardless of whether they are living together, nevertheless there does seem to be no particular purpose in the privilege once the marriage relationship has broken up. For that reason also I could not support Senator Murphy’s amendment in relation to the privilege of communication because it seems to extend, as the Attorney-General has pointed out, very much wider than the existing provision. It would cover the case where in fact the other spouse was dead or if a couple were divorced, apart altogether from whether they were separated. Therefore, my view is that the amendment is far too wide. T could not support it.
– I think that there are other problems which an examination of the amendment brings out, quite apart from the social problems which I think are at the heart of this matter. If one looks at the amendment, one sees that it proposes that a person who is a spouse:
In short, if a husband seeks to call his wife to give evidence on his behalf, the husband has the right to call his wife. What happens when the wife goes into the witness box? She undoubtedly will give the evidence which her husband had in mind she could give when he called her. That will be of assistance to the husband’s case. One does not know in those circumstances whether the wife was or was not compellable - she may have been quite prepared to go - but whatever be the motivation for her going into the witness box and giving evidence for her husband, she ought to be subject to cross-examination; and there is no question but that she is.
Then we come across the provision which is contained in sub-clause (3.) of the amendment, which reads:
In a proceedings (nol being a criminal proceeding) a person who is, or has been married, cannot bc compelled to disclose communications made between himself and his spouse or former spouse during their marriage.
The incredible situation arises, as it seems to me, that a wife could go into a witness box and, for whatever reason, say, yes, she was present at an accident, that she saw what had happened, the position of the cars and the events immediately preceding the accident, and she could be tested uphill and down dale on her recollection of these events; but it is known to her as it is known to the other party and to the counsel of the other party that she had openly told people that her husband had admitted to her that certain aspects of his evidence were untrue. Yet she cannot be questioned about that matter because questions asked about that subject would seek to interrogate her about a communication which passed between herself and her husband.
How that aids justice, 1 do not know. It is one of those areas about which Senator Byrne talked, that people just do not understand why it is that certain questions cannot be asked and why certain facts cannot be brought out. That is a problem which a number of lay people find with regard to these intricacies and these webs of mystery with which lawyers encase themselves. I sense that that would be one of the problems which Senator Murphy’s amendment would create. 1 do not think we are dealing with a situation which arises each day in the courts. I think we are dealing with a situation which arises only rarely. When it does arise it creates problems for the parties involved, for the judge who has to try the case, and for those academics who make their living from writing about what happens in relation to the law of evidence. It seems to me that we should have a provision regarding the compellability of (he wife to give evidence. The question is: What is the right provision? I arn not absolutely wedded to the clause in the Bill. I think it is the right provision in the way in which our society has developed. If the Committee could come up with an adequate alternative I would not be averse to it. I see a lot of problems in Senator Murphy’s amendment. I think it would create the situation to which I referred in my second reading speech when I referred to the speech made by Lord Reid in 1964 in Rumping’s case. His Lordship said: lt is a mystery to me why it was decided to give this privilege to the spouse who is a witness: it means that if that spouse wishes to protect the other he or she will disclose what helps the other spouse but use this privilege to conceal communications if they would be injurious, but on the other hand a spouse who has ‘become unfriendly to the other spouse will use this privilege to discloss communications if they are injurious to the other spouse but conceal them if they are helpful.
That puts it pithily and 1 think it is involved in the amendment.
– This Part of the Bill is a very big departure from the traditional altitude to the husband-wife relationship and communications between the 2 spouses. 1 would have felt that as this is such a major departure the Senate and the Parliament would have been owed a total examination and that a collection of philosophical and legal comments on the subject should have been provided for the Senate. We can do our own researches. We can have our own views. Practitioners who have had long and distinguished careers in law have spoken on this; they would speak from their experiences. But their comments may well be brushed aside on a closer and deeper philosophic and social examination of the situation. 1 feel that we should have been asked to make this radical departure only when we had before us, perhaps at the instance of the Government, papers presenting a collection of judicial opinion, judicial experience, academic opinion and things of that nature. It may not be thought that that lies within the province of the Government.
The Attorney-General, in his second reading speech, condescended in particular detail, but really in an explanatory way, to point out the variations in the law but he did not give the philosophical or social bases on which it was suggested that the variations be made. As the departure is a very radical one I feel that it should not be left to the resources and the researches of individual senators but that the subject should have received examination by the Government and that we should have been provided with the source materials. Obviously if a departure such as this is to be embarked upon something must have stimulated the Government to make it. It would be stimulated either by the experience of the Crown’s officers or by the examinations of the academics or the social philosophers who have placed their views before the Government. I think that the Government should have acquainted the Senate with what prompted it to make this departure. As I have not had the opportunity to make the necessary research or to form a firm conclusion I am reluctant to be a party to the departure. I know that the Attorney-General has been asked to and has agreed to defer consideration of certain parts of the Bill until a later hour. I am afraid that if my proposition is accepted consideration would have to be deferred until a very much later hour so that there could be a study of this base material.
– Beyond 31st March?
– I understand the position. That is one reason why I am most reluctant to agree to this extension, in the absence of a deep examination of the proposition. I do not know whether the Attorney-General might care to comment on the suggestions that I have placed before him.
– I am more than willing to comment on Senator Byrne’s suggestions. In the first place I think Senator Byrne has posed something which the Government could do if it had the time and the resources which, believe me, it has not. My second reading speech was as long as it was because it was felt that it would be of assistance. Whilst it did not elaborate philosophic concepts it did indicate the changing patterns, the changing standards, and how from the idea of the sancitity of marriage as a prime consideration we are now moving to an area in which pursuit to truth and doing justice are the primary considerations. I would be quite happy, if it is agreeable to Senator Byrne, if this clause were stood over to allow further consideration to be given to it. 1 appreciate that he is in the position that he is not happy with the. existing clause. I think that, having regard to the way in which he spoke, he would be even less happy with the amendment. I think he would be looking to see whether another provision would meet his requirements. If he could come up with another provision which would meet his objection it may be that that would meet both Senator Murphy’s consideration and mine. We could deliberate on it in some. way. If that is Senator Byrne’s wish, I will not oppose it.
I raise this matter for the consideration of the Committee. I think that if the Senate Standing Committee on Legal and Constitutional Affairs were able to bestir itself a lot of these matters could readily be referred to it. If it were to utilise part of next week to examine in some depth matters which are of particular concern to the lawyers - which matters do not concern other members of the Senate in nearly the same way - it would be able to work at its own leisure and in its own way and provide a practical solution to the problems. I know it would mean all the lawyers getting together and talking about these matters.
– Would you agree?
– I agree that my suggestion is one of the possible solutions. I put the suggestion to see what comment might come from the Committee. The matter would have to be dealt with reasonably expeditiously because of the time, limit involved.
– As one member of the Senate Standing Committee on Legal and Constitutional Affairs, it would not be possible for me to attend next week. Another important tribunal of a voluntary nature is meeting in Adelaide, the festival city of this country, next week to deal with matters of major national importance - some of a legal nature and some of what might be described as a constitutional nature. The Federal Executive of my Party meets next week. The questions that we are considering are really social and philosophical questions rather than legal questions. The problem is not with the drafting. The. experts can deal with the drafting problems. The question really is what we want to do about the clause. The Attorney-General (Senator Greenwood) said that it seems wrong that a witness can be called to give evidence on some matters but not on matters that deal with other parts of the law. A solicitor may be called to prove certain matters. He may say that he sent documents to the other side, that he did so and so and that he did all sorts of things. He may not be asked about communications or those things which are within the area of privilege between the solicitor and the client. In the same way, if the wife gives evidence she is not to be compelled to give evidence as to the communications between the spouses.
The second part of the clause continues that principle. If one dies or if there is any other disruption of the relationship and if a person wants to maintain what he or she may regard as the special relationship - the sanctity, if one likes - by saying that the communications between them were personal, the special relationship must be maintained. To people with certain religious beliefs, that is part of the sacredness of the relationship. For others who view it on a non-religious basis it is nevertheless part of the special relationship between the spouses. There is no real case in respect of some great evil that is occurring for saying that somehow this relationship has to be broken down.
We are faced with the situation that the proposition in the Bill is that the wife is to be competent - we are not quarrelling about that - but also that she is to be compellable. We know that in most circumstances she might appear if she feels that some injustice, has been done, and if she feels that she should give evidence she may do so. An example would be when she feels that some injustice is occurring and that she should reveal some indication. In that event she may do so. But this is to provide not only that she may be compelled to give evidence against her husband in civil proceedings but also that she. can be forced to say what passed between them in their own personal relationship. We think the case is overwhelming that a spouse - whether husband or wife - should not be forced by the law to do this. Because we have a time limit upon us may I suggest that the approach that we have suggested is not unreasonable - that is, that she should not be compellable by the other party and she should not be compellable by anyone to disclose communications, but that she may do so if she wishes? If at some subsequent time the Government comes forward with a strong case we can consider an amendment to the measure, but at this stage, if we have to make a choice between whether to break down this great principle, or to preserve it, we in the Opposition come down on the side of preserving the relationship until a strong case is made out for the invasion of the privacy of the spouses.
– Senator Murphy raised a number of points. Firstly, I think the analogy he draws between the fact that a person may have a solicitor called as a witness who may give evidence on some things but cannot be asked about other matters which have passed between the solicitor and client is not a true analogy. After all, the solicitor is not a person who makes known - so that other people are aware of it - what has passed between his client and himself. A wife is a little different. Often she will speak her mind and what might have passed between herself and her husband, particularly if he is her ex-husband, becomes public knowledge. In that way there is knowledge which passes to the other party and knowledge which is the foundation of the questions which are sought to be asked. I think that is one restriction which is of some validity and I think it. weakens very much the analogy which is sought to be made by Senator Murphy
– Supposing there was a question of litigation in negligence by a client against the solicitor?
– It would then be the client’s privilege. If the client seeks to open up what occurred between himself and his solicitor the matter is opened up for all purposes - at least that is the law in Victoria, and I should imagine that it would be the law generally in this area. On the other hand, if a spouse calls his wife or his ex-wife and asks her to give evidence, she may give such evidence as relates to the matters for which her husband calls her, but if she chooses not to disclose the communications which passed between herself and her husband she may shut up. That seems to me, as I said earlier, to be an unjust result. Senator Murphy did not advert to the situation about exspouses.
– That is covered in the question. If they are married, communications are privileged. The compellability clause is restricted to espoused parties, but the non-disclosure of communications is protected from compulsion if they have ever been married.
– I think it takes it wider. A person who has been married cannot be compelled to disclose a communication. There are some much married people in the community and therefore a wide range of protection is afforded.
– The reason why we put that is to protect the relationships. A man can talk freely to his wife knowing that, at least unless she wants to, she cannot be forced by any party thereafter to disclose that information. That is tending to preserve the relationship between the spouses. That is the reason why it applies even if the marriage is gone.
– I acknowledge the way in which that is put, but on the other hand we may reach the situation that a person cannot be compelled to give evidence but is competent to give evidence in other areas. This would create a dichotomy which I feel would work against the ends of justice which litigation is designed to serve. That, to me, is a factor which one cannot leave out of this consideration. I understand that at present in the Australian Capital Territory a spouse is not only competent but compellable, but nevertheless not compellable to disclose communications which pass between them. That situation is different from what Senator Murphy is proposing.
– It would disappear under the Minister’s proposal.
– It is different from what is involved in the legislation for which I am responsible and it is different from what Senator Murphy is putting. I am not sure whether it is the situation for which Senator Byrne would contend, if he could. But the point is that I feel that if we have reached a stage where a witness is a compellable witness to give evidence on some matters, that witness should be available to be tested on all matters. It is not as though in being tested on all matters there is a probing inquiry into the matrimonial relationship. This is a situation in which the rules of relevance determine the matter and in which the only questions that can be asked are those for which there is some basic foundation to enable counsel to ask the question, and it must be related to issues which are before the court. In the ordinary circumstance I cannot see that there is any real difficulty which the adoption of the provision will create.
– The Minister indicated that if I felt so disposed, he would in some way accommodate me on this matter. Could 1 know what the Minister had in mind?
– I said that if the honourable senator wished to have this clause postponed I would accommodate him. I cannot speak for the Committee, but certainly I would not oppose its postponement so that there might be some further consideration of the clause.
– Postponed until when?
– A later hour this day - which may mean not until Tuesday week.
– That would be very good. I would be happy about that.
– If the honourable senator asks for that I shall not oppose it.
Motion (by Senator Byrne) agreed to:
That consideration of clause 54 and the amendment proposed thereto by Senator Murphy be deferred until a later hour this day.
– I now refer to clause 57 which reads:
– (1.) Subject to this Act and to any other law in force in the Territory, a person is not bound to answer a question or interrogatory in a proceeding if the answer to the question or interrogatory would incriminate, or would tend to incriminate, the person or his spouse or would lend to expose the person or his spouse to proceedings for an offence against a law in force in the Territory or in any other part of Australia. (2.) Where, in a proceeding, a person called as a witness or required to answer an interrogatory declines to answer a question or interrogatory under the last preceding sub-section, the court may, if it is satisfied that, in the interests of justice, the person should be compelled to answer the question or interrogatory, inform the person -
The Opposition has some observations to make in relation to this clause. First of all, sub-clause (1.) would seem to give the general kind of protection to persons against questions which would tend to incriminate a person or his spouse. I do not think there is any departure from the general law here and we do not quarrel with this provision, unless something emerges which is not apparent at the moment. The remainder of the clause provides in substance for a procedure whereby a person may be forced to answer questions notwithstanding that his answers may incriminate him. There is a provision which requires that the person be informed that if he answers the questions that may be put to him or an interrogatory - I will include interrogatory in the, term ‘question’ - the court will give him a certificate under this section. If he is told of the effect of the certificate he is not entitled to refuse to answer questions. If after being so informed he answers all questions put to him, the court shall give him a certificate under the section. That raises certain problems. I suppose the first problem relates to what answering is. It may well be that a person may assume that he will get a certificate but in the end does not get it. In some cases that practice may be justifiable but it is a pretty chancey sort of immunity which is given to the person. It is a very conditional kind of immunity that is given to him - that if he satisfies someone that he has answered all the questions put to him he gets the certificate.
– The general scheme has been working very well in Tasmania.
– I thank Senator Rae for his observation. Sub-clause (5.) states:
Where a person is given a certificate . . . a statement made by the. person in answer to a question . . . put to him … is not admissible in evidence against the person. . . .
If the protection given under clause 57 is wide enough to enable a person to decline to answer a question which would incriminate or tend to incriminate him or his spouse, why can it be broken down and a certificate given to him which would protect, only the person and not his spouse? That seems to me to be a defect in the provision. Suppose I am the person involved and I decline to answer questions on the grounds that it will tend to incriminate either me or my spouse and the judge says ‘1 inform you that if you answer all the questions that may be asked of you 1 will give you a certificate.’ It seems that once he has informed me of this fact I am required to answer; I must answer. Suppose I give an answer which incriminates my spouse, which I am forced to do under this doctrine that one must not breach the law. If I give those answers and later I get the certificate, that cerificate protects me but there is nothing in the provision for the protection of my spouse against proceedings. I would like the Attorney.General’s answer on this matter.
On the face of it, it seems that thai is not a very great protection to the spouse. I do not know whether someone who is intent upon undoing any advantages which may arise from marriage has had a hand in the drafting of these measures, but unless there is some easy answer to this problem it seems to me that the protection which was given by this great old provision does not extend to the spouse. 1 would like to know also how far this immunity under sub-clause (5.) extends, because there may be serious questions as to whether in fact a real immunity is given under State law. I would think that it is within the competence of this Parliament to protect any person who answered questions even in proceedings under State law. But I am wondering whether the provisions of this clause are really a sufficient protection. If the answers are given and the material is available, I think one could envisage that it would not afford very much protection at all. It could occur in many cases that once the person is forced to give the evidence one could set about, by a set of inquiries, getting the same kind of evidence or other evidence in some way, and the person or his spouse would be exposed to proceedings.
There is a doctrine that a person should not have to incriminate himself but if he is forced to incriminate himself - to say something that would tend to incriminate him - the general notion of the law has been that he should not be exposed to prosecution. He ought not to be subject to prosecution by reason of anything coming out of that. I do not know whether it is enough to say that his answer will not be admissible against him. One would think that if he is forced to answer he ought not to be exposed to prosecution, otherwise the doctrine of self incrimination or incrimination of one’s spouse is really gone. Perhaps the Attorney-General will tell us who is responsible for this provision. There may have been some slip in the matter or I may be wrongly reading it. It looks very much as if the immunity provisions give no protection whatever to the spouse, although the doctine set out in sub-clause (1.) is intended to enable a person to protect himself or his spouse against incrimination.
– In the light of what Senator Murphy has pointed out and on the advice of those advising me here, I concede that there has been a gap and that there should be an amendment to include the spouse in the protection which was the intention of the provision.
– A Freudian slip on someone’s part to leave out the spouse.
– It may be, but I would have thought that it was one of the unfortunate problems which arise from overwork in the drafting area. I do not think there is any question that the Commonwealth has power to give the exoneration throughout Australia which the certificate contemplates should be given. To that extent, apart from the amendment to which we shall give some attention before consideration of this Bill in the Committee stage is finally concluded. I think that in effect answers the points raised by Senator Murphy.
– There is a further problem about the real immunity provided by this provision. I would like to know whether simply providing that the answer is not admissible is enough to give a real protection against incrimination; that is, against exposure. My understanding is that the purpose of the provision is that a person cannot be forced to expose himself to prosecution, ls it enough to provide that the answer is noi to be admissible? Should we not be contemplating something like immunity from prosecution - one would think that this is certainly the case in relation to Federal law - rather than simply saying that the answer is not admissible? The purpose of sub-clause (1.) is really to say to a person: You do not have to say something which will expose you to prosecution’. It is not enough to say that once the person gives evidence it is not to be admissible. In many cases the person will be exposed to prosecution if no more is provided for than the non-admissibility of the answer. Could some consideration be given to that?
In the light of the answer given by the Attorney-General, I would like to move, without prejudice to what has been done elsewhere: “That the words “or his spouse” be included after the word “person” in sub-clause (5.)’.
– I was hopeful that I could obtain the assistance of the draftsman in composing an amendment. I know that it appears simple, and it probably would be adequate.
– I will let it run. If my proposed amendment is not suitable, somebody might suggest something else. Perhaps my proposal could be considered.
On the matter of principle, could the Attorney-General tell us why we do not provide an immunity against prosecution? That is really what should occur, especially when we are dealing with an invasion of this doctrine which has been regarded very highly in many parts of the world. If we are to say that it is so important to get a person to answer a particular question even though it would, if answered, otherwise tend to expose him to prosecution, is not the simple thing to do to say: ‘If we want that, we will give him an immunity from prosecution’? Let us go as far as we can in that direction. That is what is worrying us. We do not think this is a satisfactory protection for the person who is forced to incriminate himself.
The CHAIRMAN (Senator Prowse)Order! Senator Murphy, I draw your attention to the fact that your original amendment is designed to leave out sub-clauses (2.), (3.), (4.) and (5.), and now you are suggesting the addition of words to subclause (5.).
– Precisely. That is why I indicated that I wanted to move this amendment without prejudice.
– It would be necessary to confine the original amendment to sub-clauses (2.), (3.) and (4.) in order to do what you wish to do.
– Perhaps I should say that I will move this amendment if the amendment to leave out sub-clauses (2.), (3.), (4.) and (5.) is defeated. This amendment is the alternative. It is designed to amend sub-clause (5.) by inserting the words ‘or his spouse’ after the word ‘person’.
– I suggest to Senator Murphy that we have a vote on his amendment to delete sub-clauses (2.), (3.), (4.) and (5.); and then, if the decision is to retain them, we can open up this other question and consider the appropriate amendment to be made. I recognise that there is a casus omissus which has to be looked at, and I am sure that we can do that in a satisfactory way. As Senator Murphy has finished for the time being, let me say that I do not accept for one moment the proposition that there should be an immunity from prosecution. I believe that there should be simply a prohibition upon an answer given in circumstances which might amount to duress in the face of the court being used against the person concerned in subsequent proceedings. There is nothing about that which is unusual or exceptional in Commonwealth law. Furthermore, there is nothing exceptional in the police, even though they cannot use the answer that has been given in the proceedings, using the material or information that is come to them to seek to discover, if they can, other evidence that will establish an offence against a person who, for example, may have admitted to the offence in the course of a hearing before a court but who cannot be prosecuted because that admission cannot be used against them.
– It puts a person in a terrible position, does it not. if he is getting no immunity, because really he is exposing himself to prosecution if he answers.
– I do not want to be misunderstood. I say that if a person is before a court - maybe unwilling before a court - because he is able to give evidence in the court proceedings it i« in the interests of justice that he be compelled to answer the question or to accept the penalty for not answering If it be said that that is a difficult situation into which to put a person because if he answers the question he may incriminate himself, what is fairer than to say to him: ‘If that is the difficulty you have in answering the question, any answer you give cannot be used in any proceedings which may be taken against you afterwards and in respect of which you have this fear of incriminating yourself?
– But proceedings might arise out of his answer, whereas if he had not given the answer that he was compelled to give proceedings might never have been commenced against him. Why is not he entitled to an immunity from being put in that position? It is not just a matter of evidence that may be used in a subsequent trial.
– I agree, in one sense, that the proceedings might never have arisen if he had not given that answer; but the proceedings will arise only if there is a prima facie case upon which a prosecution can be instituted, quite apart from the answer that was given. 1 do not believe that we should so disregard the public interest that, if the police can maintain a prosecution which can be launched effectively against a person, the mere fact that he set the police on his track because he happened to be in court and gave an answer is any reason for not doing that. It is suggested that he should have a complete immunity from prosecution. I believe that that is really a fantastic proposition to put, because if I were a wrongdoer 1 could not get into a relevant court action quickly enough and there put myself in the pose of being a reluctant witness unable to answer a question and then, in an appropriate way at an appropriate time, answering the question and asking for the certificate under this provision and thereafter, as Senators Murphy and James McClelland suggest, being immune from prosecution. 1 believe that that is one factor to be urged against the plea that-
– He is not immune from prosecution; that evidence is not admissible against him.
– I think Senator Byrne is missing the point that has arisen. I maintain that the answer should not be evidence in a prosecution. As I have said, that pattern is to be seen in quite a lot of legislation. But, as I understand the position, the reason why Senator Murphy has moved this amendment to have the sub-clauses deleted is that they do not give a complete immunity from prosecution.
– From the consequences of the evidence.
– Yes. I say that that proposition goes far too far and is one which I would not accept and which I do not think honourable senators should accept, because it would create a situation in which all sorts of devices would be adopted whereby law breakers would obtain for themselves an immunity from prosecution simply by getting into court as quickly as they could and obtaining a certificate which would render them immune forever. 1 do not think there would be very much difficulty in their achieving that result. 1 certainly believe that this amendment, which seeks to delete these provisions which will permit the answer to be given but then not to be used in evidence, should be defeated.
– There has been some little discussion of this matter. I know that Senator Rae has said that Tasmania has some such clause. T think that the clause with which we are dealing is one about which, if extended throughout Australia or perhaps even left in this Bill, we are certainly going to hear a great deal more in the community. It will be the cause of the utmost contention. If this clause is passed there will be great public controversy about its operation and questions of human rights which will arise under it.
– There will be great perjury, too.
– Yes. I do not think it is sufficient that the Attorney-General (Senator Greenwood) answers that one will be able to rush into court and obtain an immunity. It is simple enough to devise a procedure under which the Crown can give a certificate. It does not have to give the certificate to everyone but only to a person who is given immunity from prosecution. There may be some conditions, limits or whatever they are but there should be an immunity against the consequences of this step before a person can be forced to break down this privilege against incrimination. I am not satisfied that the clause is fair or proper or that it is’ going to work properly. If a person who is required to incriminate himself declines to answer and the judge says: If you answer all the questions I will give you a certificate’, we hope that that person will be advised that all the protection he will get is that that answer itself will not be used against him. If he answers truthfully, such answers may give all the ways in which a prosecution may be found against him. The police will be able to go out and find the leads. In effect, the accused person will provide the basis for convicting himself. What is that going to do except raise the utmost, resistance by people? They will want to refuse and the matter of contempt of court will arise. It will be contempt because a person refuses to incriminate himself. I can see that there is going to be the greatest difficulty over this matter. If it is important enough to force a person to give an answer which will expose the fact that he has committed a crime, or his spouse has, or would tend to do so, that should only be done under some circumstance such as the Crown deciding to give that person an immunity certificate. They could choose the cases.
– Would we not finish up like America where people plead a certain amendment giving them immunity? It is like the American fourteenth amendment where a person stands on his civil rights. It is very big and wide.
– If that were so I think that that would be a more desirable result than the result which will be obtained from this clause. If this clause goes through that is my prediction to the Senate.
– But it has been in force in Tasmania since 1910.
– Tasmania is Tasmania; it is not the whole of this continent. It is an important State in this Commonwealth in tourism and industry. In many respects it is not treated as well as it should be. It is a place which has had a harsh history and it is not widely considered.
– We do not disobey laws which we do not like.
– I heard that down in Tasmania there has been flagrant disobedience of the law. I am told that in recent weeks citizens have been known actually to stand outside shop windows and little children have been known to leave suitcases on the footpath while waiting for buses! The new Superintendent of Police has said: 1 am going to stamp this out’. The full force of the law of Tasmania is being brought to bear upon what has been described as ‘these persistent law breakers’. In this comical situation perhaps we should not be diverted by what Senator Marriott has said. Tasmania is a fine place but we are dealing with the laws which will apply to the Australian Capital Territory and which may be extended to other parts of Australia. I think that the law should not be left in the position where we are going to have the gravest contention. There is no doubt that most serious problems are going to arise if the only result of an immunity certificate is that the answer cannot be given. In most cases a person would be a fool to answer questions. Suppose he felt that his answer would expose him to a successful prosecution for a serious offence. It would be far better for him to defy the judge and refuse to answer the question, rather than answering questions which might injure him. We should not. force persons into such a position. If the situation is important enough to require people to give away the privilege against incrimination then there should be something far more satisfactory than a mere provision that the answer will not be used against a person.
– I can only say that where Senator Murphy was not exaggerating he was being melodramatic. In the first place I think this provision has existed in Tasmania snce 1910. It has not created the situation which he is fearful may occur in a small community like the Australian Capital Territory. I think that therefore there was a degree of exaggeration and melodrama in what he said. In the second place, I think that to make an exception in this area is to deny the efficacy of the provision where it appears in other legislation. In this country in recent years many of the major company investigations have been carried out under a provision that a person is required to give answers to investigators appointed under the Companies Act. Those investigators are assisted by the information which they receive. I have little doubt that they receive information from otherwise recalcitrant, reluctant witnesses because there is an immunity from prosecution in the sense that the answer which is given cannot be used in subsequent proceedings. Such a provision appears in other legislation introduced after the Companies Act.
Thirdly, it is appropriate that the immunity should extend to the non-use of the answer which is given in a particular circumstance in which a person finds himself. If a person is a wrong doer he knows that, he is a wrong doer. If he has to give an answer when he is in court it appears to me that he has to make his choice. Either he answers the questions or he remains mule and possibly goes to goal until he answers. That situation can be avoided if he is given the assurance that if he answers the question that answer cannot be used in prosecutions against him afterwards. In such circumstances. I think he is jolly lucky. It is hard enough on many occasions for the police to obtain material which may be used as the basis of a prosecution against a person. But if the police receive such material I think it is only appropriate in the interests of the community that that person should have to face his trial. He has the advantage that he has given an answer which cannot be used in evidence against him. But if there is other evidence why should it not be used? To argue the case that he should be completely immune from prosecution raises enormous problems some of which 1 canvassed when I last spoke but to which I do not really feel Senator Murphy has addressed himself.
That the words proposed to be left out (Senator Murphy’s amendment) be left out.
The Committee divided. (The Chairman - Senator Prowse)
Majority . . . . 2
Question so resolved in the negative. Sitting suspended from 5.49 to 8 p.m.
General Business Taking Precedence of Government Business After 8 p.m.
Debate resumed from 29 April 1971 (vide page 1 1 80), on motion by Senator Murphy:
That the Bill be now read a second time.
– in reply -I have risen to speak because it appears that the Senate feels it has debated the matter sufficiently.
– At the second reading stage.
– Yes, and that it is ready to proceed to a vote on the matter. I do not propose to delay the proceedings any further. I am conscious of the fact that it has been a very long time since the Bill was first introduced and that a vote ought to be taken. I noted that one of the national newspapers suggested today that in these issues of lost causes, no cause is lost. I think it suggested that all that can happen is that you might die before it is won. Bearing that in mind, I do not propose to chance fate any longer. I ask the Senate to consider what has been said here. It is an extremely important issue. All over the world, the trend is towards the abolition of capital punishment. People who consider this question often have very strong views on it. I, for one, am not a person who ignores the views of those who have views different to mine. I can see that there is some basis for their views. I can see that on some occasions the killing of persons becomes necessary in the saving of life. Sometimes it is to prevent escapes. Sometimes it is inevitable in order that life be protected. But this is a question of punishment; not one of killing in order to save a life.
Often, questions involving moral problems are posed. The question is raised: What would you do on various occasions if you had to save someone? Such questions are not really directed to what the state should do by way of punishment. This is what we are concerned with. We are concerned with punishment and not the occasions on which it may be necessary for someone to kill someone else. That is in a different category. I think we have reached the stage where the state ought to set an example to its citizens, even though this may be at considerable cost and even though it is not done by way of mercy towards those who have transgressed the laws. Nevertheless, I think that we have reached a stage where the greater part of our community thinks that it would be far better if the state were to set the proper example and to say that it will abolish this form of punishment and do that in the general public interest not only on grounds of humanity but also because of the example that it sets to all citizens. Therefore, I again commend the Bill to the Senate and ask that honourable senators vote in order to enable this matter to be dealt with at an early stage and the House of Representatives given an opportunity to vote on it.
That the Bill be now read a second time.
The Senate divided. (The President - Senator Sir Magnus Cormack)
Majority . . . . 5
Question so resolved in the affirmative. Bill read a second time.
Clause 1 agreed to.
This Act applies throughout the whole of the Commonwealth and the Territories and also applies beyond the Commonwealth and the Territories.
– Some amendments to the Bill have been circulated in my name. The first amendment relates to clause 2. I move:
Proposed sub-clause (2) seeks the enactment to have the widest scope, subject to what appears later. Proposed sub-clause (3) provides in effect that the Territory of Papua New Guinea be allowed to do what it thinks should be done in regard to its own laws. It may wish to take its own course. We know that this matter has been the subject of some consideration in the Territory. The information available to the Standing Committee on Constitutional and Legal Affairs when it considered this matter was that 2 Bills of opposite intention have been introduced in regard to the matter. This provision would leave it entirely to the Territory to decide what it thinks it should do. In relation to proposed subclause (4) I would point out that it is not known when this legislation will come into effect. So, if at the time that it comes into effect, a sentence of death has already been passed, the legislation is to operate in relation to that sentence.
These new sub-clauses are intended to deal with some of the questions raised in the report of the Standing Committee.
That Committee suggested that if the Bill received a second reading consideration should be given in the Committee of the Whole to the following matters: The possible effect of existing Imperial laws; the application of the proposed law to proceedings pending; the question, if the word offence’ is used in the proposed law, of the extent to which this would have effect in relation to the defence forces; and the effect of the proposed law on existing and future laws of the various Territories of the Commonwealth. The sub-clauses I have sought to include in the Bill by way of an amendment are intended to deal with those matters.
Perhaps I should expand a little on this matter. The Standing Committee referred to the possible effect of existing Imperial laws. The purpose of the amendments is to make it clear that the Bill extends to any Imperial Acts that impose the death penalty insofar as it is within the power of the Commonwealth to effect those Acts under the Statute of Westminster. The Standing Committee referred to the matter of the application of the proposed law to proceedings pending. The amendments would make it clear that the Bill will apply to offences committed before its commencement, including those in which proceedings are pending, and would also apply in the unlikely - or perhaps not so unlikely - event of a person being under sentence of death at the commencement of the Act. The Standing Committee referred to the question of whether the word ‘offence’ would have effect in relation to members of the defence forces. The intention of the amendments is that the word ‘offences’ in the amendments would be of wide import and not in any way intended to be taken narrowly and that it would not be taken narrowly by any court.
– The word ‘offence’ appears in the Bill as well as in the amendment. How does the word ‘offences’ in the amendments clarify that issue?
– If I may just go on, the word ‘offences’ insofar as the defence forces are concerned is dealt with in section 96 of the Defence Act, which makes certain provisions in regard to trial by a court martial if the offence charged be punishable by death. So that the word offences’, on the information that has been given to me and which 1 accept, would be appropriate to deal with such a matter that is dealt with under military law.
The Committee referred to the effect of the proposed law on existing and future law of various Territories of the Commonwealth and made special reference to Papua New Guinea. As regards Papua New Guinea, the amendments would apply the Act to offences under Commonwealth Acts and Imperial Acts extending to the Territories but not to offences under local laws of the Territories. The amendments however will apply the Act to all laws of the Northern Territory and the Australian Capital Territory. As far as future ordinances of the internal territories are concerned, any ordinances that attempt to impose the death penalty will be invalid as being inconsistent with clause 3 of the Bill, it being a well accepted principle that an ordinance cannot be inconsistent with a Commonwealth Act. There are some other matters dealt with, in the Committee’s report, but they will arise in later matters which are dealt with. Therefore, 1 put these proposals to the Committee.
May I say this: An attempt has been made to take away any possible ground of complaint. I do not wish to argue about the merits of the Bil) as it stood. It is my view, and it is not only view, that the Bill as it stood was perfectly all right and would have operated to achieve the desi.-ed effect. Indeed, it passed through the Senate previously without any adverse comment being made on it although there was very great expert opinion available to deal with it. But I have taken the view that this matter should not be open to attack on the basis of any technicalities. So, 1 have endeavoured - I have sought the assistance of those who are expert in these masters, the Parliamentary Counsel - to draft amendments to meet any possible objection on the technicalities of the matter, lt is on that basis that 1 present these amendments to the Committee. I have moved the amendments in relation to clause 2 and I ask the Committee to accept them.
– Before the Committee embarks upon a discussion of these amendments, may I suggest that each of the sub-clauses of the amendment moved to clause 2 be dealt wilh separately?
– I think that is the right way to deal with them.
– There being no objection, that course will be adopted.
– I think it is apparent that what is involved in subclause (2.) raises problems of a different character to the questions which are raised in sub-clauses (3.) and (4.) of the amendments that Senator Murphy has proposed to clause (2.). For my part, I speak against sub-clause (2.) only. I appreciate that, in the acceptance of the principle which the Senate has given by granting the second reading, it has broadly agreed to the principle that the death penalty should be abolished. But, as far as I am concerned, I do not believe that that decision should have the widespread application that is contemplated by the language of sub-clause (2.)
That sub-clause would indicate that the Act: . . applies in relation to, and in relation to offences under the laws of the Commonwealth and the Territories of the Commonwealth, and, to the extent to which the powers of the Parliament permit, in relation to, and in relation to offences under, Imperial Acts.
Insofar as there is an offence of murder for which the penalty is death and an offence of treason for which the penalty is death, being laws of the Commonwealth, this Act will mean that the death penalty will no longer apply. But it extends further. It means that if people cheerfully put a bomb on an aircraft with a view to personal gain or for any other reason and they destroy people who are travelling on that aircraft, they may do so with the acceptance that, whatever loss of life they may cause to others, they do it without peril to their own lives.
But, more importantly, what it does mean is that that which has always been the accepted rule with regard to our defence forces will be set at nought in an area where, distressing as it must be to those who have experienced actual warfare, which I have not but which I must acknowledge with feeling from what I have heard and read, with death everywhere apparent,” those who would desert their colleagues and those who would traitorously give away their own side to an enemy, may condemn their colleagues to death but in terms of their own crime they will be subjected merely to life imprisonment.
This to me is quite an incredible attitude. I had thought that we might have had an examination of this matter by the Senate Standing Committee on Constitutional and Legal Affairs following the vogue of Senate committees inquiring into all sorts of matters. Unfortunately - and I can say only that I regret it - the Senate Standing Committee to which this matter was referred with, I would have thought, a quite clear indication from the Senate as to what it was intended to do chose on its own initiative to ignore the Senate’s request and to report in the way that it has reported without giving any consideration to these matters. I think it is a pity because it indicates that Senate committees are not quite what they could be. I sense that a great opportunity was offered, but it was ignored.
In the result, we come to this debate without the assistance of a study m depth and an examination of the very real problems that the deterrent principle in punishment involves, without any sense of understanding of whether there might be a death penalty according to appropriate offences, and we must consider this matter in terms of the traditional political arguments which were the vogue 20 or 30 years ago, and must do our best to make a judgment. I do not think that is worthy of the Senate. I do not think it is worthy of the positions that we hold. Still, it is something which we must undertake as best we can.
I do not believe that those of us on this side of the chamber who feel strongly about the matter should willingly, and without some protest, accept a position that in our defence forces people may engage in treason and that they may engage in traitorous conduct in the face of the enemy and, in those circumstances, imperil the lives or worse of their colleagues, and do so knowing that they do not face the death penalty in the face of the enemy but that they will suffer life imprisonment. This is what is involved in sub-clause (2.) because to the extent to which the powers of the Parliament permit, this law is to apply to offences under Imperial Acts. If we look at the report of the Committee we see that, in the one area of activity in which it concerned itself, it did look at - I presume that it looked at - and give consideration to the views of the Department of Defence with regard to the laws which impose the death penalty within the responsibility of the Department of Defence.
It is apparent that the Defence Act creates certain offences by way of adapting to the purposes of Australian defence the provisions of the Naval Discipline Act of the United Kingdom and the Army Act of the United Kingdom. The Naval Discipline Act of the United Kingdom by section 3 defines ‘traitorous conduct’ as: . . failure to obey, orders when preparing for or in action with intent to assist the enemy.
It does so also by section 4 which states:
And it does so by section 5 which provides:
That type of traitorous conduct has previously carried the death penalty. By subclause (2.) of the Bill, such conduct no longer will carry the death penalty. I simply say that I oppose it.
The offence of mutiny is denned in section 9 which provides:
At one stage a conviction for that offence incurred the death penalty. If the clause is carried it no longer will. Under the Army Act there was traitorous conduct in the abandoning or delivering up of a post or place shamefully and traitorously, by the casting away of arms or ammunition in the presence of the enemy and doing it shame.fully by communication with the enemy treacherously or through cowardice and traitorously by the assistance of the enemy with supplies of arms and knowingly harbouring the enemy and by the serving with or voluntarily aiding the enemy when a prisoner of war and knowingly doing any act when on active service calculated to imperil the success of Her Majesty’s forces. That constituted traitorous conduct under the Army Act and conviction for any of those breaches carried the death penalty. It no longer will.
I believe that if we hold the view that the defence of our country is of paramount importance - I know that a majority of the Committee takes that view - the least we should be prepared to do is to maintain our support for those who bear arms and risk their lives. For them to be deserted by persons who can cavalierly do so knowing that, whatever loss they might cause to their colleagues, at worst they may be imprisoned for life is, to me, an incredible proposition. I recognise that the Senate has indicated a view on this subject. I regret that the Senate - philosophically and without, I think, an appreciation of the particular issues - has committed itself to a course which I do not believe redounds to the credit of the Senate. I speak as I do because I feel that this is an area in which we should show some concern for the people who carry arms and risk their lives in the service of this country. I think that they should be supported. To remove the death penalty for the types of offences which I have indicated, to me, is not supporting our defence forces. I oppose the clause.
– In the absence of anyone rising to speak, I wish not to be silent about this clause. Whatever may be said about the manner in which the debate is proceeded with, I for one will not yield on an occasion like this without there being a full debate such as should be characteristic of the Committee on a matter of such grave significance. Recognising that the general principle of the Bill has been endorsed by the second reading of the Death Penalty Abolition Bill, I want the Committee of the Whole to give consideration to that part of the report that was presented to the Senate that touches upon the second amendment moved by Senator Murphy. If the amendment is accepted by the Committee there will be a wholesale repeal of all the provisions to which I wish the Committee to turn. I refer to page 2 of the letter which was sent to the Standing Committee on Constitutional and Legal Affairs by the Department of Defence on 9th November 1971.
– If the amendment is accepted there will not be a wholesale repeal. The Minister said that there will be a wholesale repeal if the amendment is accepted by the Committee.
– I am not sure that I understand my colleague. What I meant to convey was that there will be a wholesale repeal of those provisions that apply to the offences to which I am about to refer and for which there is the death penalty. I wish I could share the understanding of the honourable senator. Perhaps he will make clear whether he is in agreement or disagreement with me. Page. 2 of the letter to which I have referred will suffice, for a Committee discussion, to indicate the nature of the offences. Paragraph 8 of the letter states:
Under this legislation the offences carrying the death penalty are:
Section 4: Traitorously delivering up to the enemy a garrison, fortress, post or guard or traitorous correspondence with the enemy;
Section 7: Mutiny or failure to suppress mutiny. 1 ask: In what effective manner can the law be enforced in a field in which life or death is the order of the day when one or a minority traitorously delivers up to the enemy a garrison, fortress, post or guard or when one has traitorous correspondence with the enemy? A person may inform the enemy about the dispatch of troops by sea or aircraft in order to enable the enemy to shoot down the aircraft or to sink the ships so that the troops will drown. Paragraph 1 1 of the letter states:
Under sections 4, 6 and 7 of the latter Act-
That is the Air Force Act of the United Kingdom - numerous offences committed in the face of the enemy, or treacherously or involving mutiny or sedition are made the subject of the death penalty.
In my opinion, that is sufficient to call attention to the fact that in regard to offences under military law - whatever may be the merit for repealing the death sentence under civil law - the repeal of the death penalty would cause a subversion of the strength of the armed forces. I would have thought that the repeal of the death penalty would have had a corroding influence on that spirit which is the basis of the strength which armed forces exert when fighting the enemy. It would be a most unfortunate step if the Senate saw its way clear to repeal that part of those provisions which provide the death penalty.
I can understand, in the case of a single murder and in some cases of treason, the modern thinking that the application of the death penalty is inappropriate. It is argued that, in modern days, the death penalty should not apply to the universality of offences to which by the letter of the law it is capable of application. The prerogative of mercy has been exercised in this field with what I would think was fairly general satisfaction to the sense of justice of the whole community. At the second reading stage I submitted a case in support of the proposition that in individual cases the death penalty should be reserved for the ultimate crime. In this instance I am focusing attention upon the actual constitution of the defence forces and upon the enforcement of discipline, firstly from the point of view of physical confrontation with the enemy and secondly from the point of view of traitorous correspondence with the enemy. The man who can leave his unit and, due to an evil influence, put himself in the position of communicating with the enemy and of informing the enemy of the dispatch of aircraft or the departure of troop shipments and thereby enable the enemy to cause death to his comrades who have been fighting the enemy in reliance upon mutual loyalty, to my way of thinking, should be punished.
The Senate has not given sufficient consideration to that situation to warrant a positive acceptance of the clause. In the second place I put to the Committee the proposition that once we consider it, it has to be rejected.
– Is the honourable senator considering this penalty as a deterrent or as a punitive measure?
– As one of those provisions of the law which make the fabric of the law and ordinary men’s understanding of their mutual obligations accepted as a matter of common decency among members of the Armed Forces. Secondly, of course, it is a deterrent. In any unit there are men who are good, bad and indifferent. One has only to see a film depicting a wartime story to see the villain, the trator and the con man, and when the con man comes under the influence of the enemy he becomes the traitor. We have achieved something if one man is deterred by the historic provision that we have had until now, where the penalty is the extreme penalty. I say to honourable senators, not for the first time, but now in about my 22nd or 23rd year in this Parliament, and still persevering - not always in a cause in which 1 know I shall win, but, as heretofore, persevering in a cause in which I believe there is justice - that we cast a great deal of disadvantage and a great deal of injustice on the Armed Forces if we relieve the traitor who commits the offences that I have mentioned form the supreme penalty simply to gratify a sociological generalisation. 1 would say that if we accepted that the man who traitorously, with 4 or 5 others or alone, delivers his own post to the enemy or corresponds with the enemy to enable a ship to be torpoeded within a couple of hours of its departure, at a time when we have sent troops to the battle line and have required our garrisons to face the enemy, should not be subject to such a rigorous provision of the law as the penalty of death, we. should surrender our right to be defended.
– It takes no effort of imagination to get back into the Kiplingesque world of Senator Wright in which all actions are to be measured in the world of embattled forces, goodies and baddies, traitors and heroes.
– And loyalists.
– Yes. What Senator Wright is doing and what Senator Greenwood is doing in a more realistic, less picturesque and less melodramatic manner is fighting a desperate rearguard action in the face of the express opinion of the Senate that the death penalty is a barbarous, outmoded, and uncivilised way of punishing people who have committed a dreadful offence. What does it amount to when we analyse what it is that the 2 honourable senators have said? Does it not come down to this, that some murders are more horrible than other murders? Certainly the instances that Senator Wright has mentioned are such as to make any of us feel indignation. We on this side of the chamber, no matter what Senator Wright may feel tonight or on any other occasion, are no more pleased with traitors than he is. We also view wilh horror the sort of instances that he has given of actions by cowardly men which may imperil the lives of thousands of their countrymen. We think that action of this kind is awful and that it should be punished. What we do not agree with is that we deter someone from doing this or prevent this from hap- pening by doing the evil barbarous thing of putting that man to death. This issue has been debated philosophically in the Senate.
– Not by honourable senators on your side of the chamber. The honourable senator is the first one to speak on this matter in the last 6 months.
– We have heard learned and thoughtful contributions from men like Senator Carrick, men who have studied the matter in depth and who have considered every type of crime. Anybody who listened to Senator Carrick ‘s speech on this matter must have been impressed with the fact that he had considered every aspect of the crime of murder. Senator Carrick had looked at every sort of horrendous action for which men are usually tried and, hitherto in the more primative uncivilised corners of the world, put to death. Thare is nothing new in the instances which have been brought to our notice tonight by super-patriots like Senator Greenwood and Senator Wright. That is not to denigrate patriotism. Senator Greenwood laughs. Does he want to stack his patriotic record up against mine? ls this what he is suggesting? I would remind him of the old saying that patriotisim is the last refuge of a scroundrel.
– ls that why the honourable senator is taking refuge in it?
– I am not taking refuge and I do not need to take refuge in it. If we want to talk about patriotism 1 will compare my record wilh anybody’s. We have as good a patriot as there is in this chamber in the figure of Senator Carrick. I know he will be embarrassed to have me refer to it, but at the risk of embarrassing him, 1 say he is a man who should be entitled to feel as much indignation about, acts of treason, about actions that have let the country down, as anybody in this chamber. He. having looked at all these dreadful acts by human beings, comes down on the side of mercy. We have a young senator opposite who is a super-patriot but who has never heard a shot fired in anger. I do not think he should stack his record up against Senator Carrick’s or against mine. If we are talking about treason or about murders outside the ordinary private scale of murders, these have already been taken into account by those of us who are opposed to taking the life of a human being in reprisal for the most dreadful conduct by human beings.
We believe that history shows that this is not only uncivilised but also that it does not work. It does not eradicate the crime of murder. It really makes my gall rise to sec this man over here, who applauded the murder of thousands of people in Vietnam, being so tender about the taking of a single life as to advocate its punishment by the taking of another life by the State. I really find this the height of hypocrisy. All I say about what has been said by Senator Wright and Senator Greenwood tonight is thai it is a last desperate rearguard action in line with the action that Senator Greenwood took in trying to have this matter referred to a committee so that it would be delayed and buried. He hoped that it would never hit the deck. It has hit the deck in this chamber tonight and honourable senators clearly have expressed their will. But now Senator Greenwood and Senator Wright are attempting to whittle down that expression of will by the Committee. We on this side of the chamber agree that some murders are more horrible than others, that there are murders more horrible in war time than in peace time, but some dreadful murders also occur in peace time. We who have thought of this and who have adopted a philosophical attitude towards the taking of human life have considered all these examples and, having taken all these matters into account, believe that the taking of life by the state is still impermissible under any circumstances. Therefore we reject any exceptions that may be suggested by Senator Wright and Senator Greenwood as a last desperate rearguard action against this Bill.
- Mr Chairman, under standing order 410 I claim to have been misrepresented and I wish to make a personal explanation, as of right.
Leave is granted.
– I was said by Senator James McClelland to have applauded the murder of tens of thousands of people in Vietnam. I should have thought that I might have been entitled to the protection of the Senate from a statement of that character which is untrue, which is malicious and which is quite unnecessary because it is not the truth.
– Mr Chairman-
– All right, if you want to deny me, go ahead.
– I rise to a point of order. The honourable senator is en’itled to explain himself and to say that he has been misrepresented but the occasion should not be used for turning back the attack upon somebody else. When an honourable sena or invokes the provisions of that standing order he is given leave of the Senate in order to clear himself, not to indulge in an attack upon another senator.
– There is no point of order.
– I have sat here and I have never once interrupted the speech of any honourable senator in order to object to what he has said about me. I have chosen to use the right which this standing order gives to me, if 1 object to what the honourable senator has said because it is untrue, to claim that I have been misrepresented. I think this is a fair way of going about it. I personally express the objection that when I am about to make my representation there should be an objection taken on a point of order on the basis that I ought not to be’ allowed to explain properly how I have been misrepresented. I have a right in this chamber to speak as I will. To have it said of me that I have applauded the murder of tens of thousands of people - honourable senators opposite should ponder the enormity of that accusation - ought to be offensive to anybody, and it is offensive to me. Yet it is said as if it is something which can be clearly and easily said and then laughed away. How would Senator James McClelland feel if someone said that of him? I repudiate absolutely an accusation of that character. I feel, Sir, that this Senate ought to take some heed of the way in which its proceedings are conducted if those things can be said and then it be argued afterwards that in some way a person is entitled to say them and the aggrieved party not be allowed to make a response. I have my pride. I have my feelings. One does not like to be accused of being someone who applauds the murder of tens of thousands of people. I think that Senator James McClelland ought to appreciate that if he wants to say these things in the cavalier, easy way in which he does, there are people who do object to them and will expose him for what he is saying.
The second point I want to make by way of explanation of how 1 have been misrepresented is that 1 was accused of having wanted to delay this measure, to tuck it away, to hope that it never hit the deck. That is quite untrue. It is absolutely untrue. If anybody would care to remember what 1 said or to read the record of what I have said or to speak to anybody on this side of the chamber to whom 1. have spoken concerning this matter he will know that it is untrue. But it is part of a typical smear in which the Labor Party engages in order to denigrate anybody who happens to disagree with the point of view that it holds, and it will do it in complete defiance of what the record says. I have been concerned to have looked at in some depth the very deep problems which this issue has raised and which are involved in it. That is why I said earlier that I regret that the Committee to which it was referred had not done so.
– Order! The Senate has debated this matter hitherto on a very high level. I trust that tonight there will be no exception to the way in which this serious matter has been discussed. These comments apply equally to both sides of the chamber.
– I too was shocked by the remarks of Senator James McClelland. I do not propose to become highly involved in the events which have taken place, but I. found both the accusations and the way in which they were made quite extraordinary. I do not think I need say more. They were more than extraordinary. But I will not go into them. The matter I will go into is that an accusation has been made, has been repeated and is false. That accusation is that the Attorney-General (Senator Greenwood) was deliberately scheming to keep this Bill from coming before this chamber to reach finality when he recommended and moved that it be referred to the Senate Standing Committee on Constitutional and Legal Affairs. That is an untrue allegation. 1 can speak from my own knowledge as to its lack of foundation. But the accusation has been repeated and encouraged. 1 was one of those who was present when a discussion took place with the Attorney-General as to whether it was a good idea to have the matter referred to that Committee for the purpose of trying to iron out some of the problems. I had hoped that some of those honourable senators from this side of the chamber who have a free vote, as well as members of the Australian Democratic Labor Party and the independent senators in this chamber who may be wavering in their attitude or who may be in favour of capital punishment would have had an opportunity of hearing the matters argued in a different context from the context of the chamber debate. I was hoping to have some of the considerations such as those put forward by Senator Withers in his contribution to the second reading debate and those matters put forward by Senator Byrne and other honourable senators considered by a committee. That is one of the reasons why I thought it was a good idea for this whole matter to be referred to that Senate Standing Committee. I fully supported the proposal and encouraged the Attorney-General to move in the way in which he did.
As honourable senators know and as I have proved, I am personally in favour of the passage of this Bill. There has been a continuing smear against a person whose integrity in relation to this particular matter is beyond question. If anyone wishes to challenge other honourable senators on this side of the chamber who voted as I did he will find that the support for the move was unanimous. He will find that I spoke to those honourable senators who were not present at .the meeting and obtained their agreement to the course of action which was proposed. A stop has to be put to the continuation of this smear against the Attorney-General that he has been deliberately avoiding this matter coming to a hearing. If Senator Murphy would be fully frank he would agree also that there were special circumstances last week as to why this matter did not come on, and those circumstances were not the fault of the Attorney-General. 1 simply wish to make it abundantly clear to this chamber and to anybody else, who is interested in this matter that it was not at the instigation of the Attorney-General that the matter was referred to the Senate Standing Committee on Constitutional and Legal Affairs.
– Rarely in the last few weeks have I spoken but tonight I must express my concern about this matter of the personal attack by Senator James McClelland. This debate has gone on for quite some time. It has been a debate of conscience. We have seen honourable senators from this side of the chamber speaking in favour and speaking against the Bill. We have not heard many speakers from the Opposition. 1 do not intend to do other than pass comment. I am not passing any criticism. I say this qui e fairly to Senator Murphy because I wish to take my point further. The only reason 1 mention this is because of the fact that criticism of Government members in relation to this Bill has been expressed in the Press and in this chamber. I feel that if we are all honest we must admit that there has been a variance of opinion from this side of the chamber on the subject of capital punishment. More importantly one expected tonight to hear this matter again debated in depth and with sincerity and on a low, constructive key. I give full marks to Senator Murphy for the way in which he closed the second reading debate on this very important matter tonight. Personality did not come into it. Senator Murphy made a firm plea and spoke with conviction.
I regret very much that tonight we have seen Senator James McClelland bring personalities into the debate. I sat here and saw him being vicious and personally abusive to the Attorney-General. I admire firm, frank, hard debate, but I do not accept personalities being brought into debate in this place. Fortunately very few senators do. It would appear on the ‘surface that Senator James McClelland has conducted a personal vendetta against the Attorney-General (Senator Greenwood) tonight. I only hope that we can come back to the honest, sincere, low level, constructive way in which the Leader of the Labor Party opened up this discussion tonight so that all of us can settle down to debate from a conscience point of view this very important humanitarian question in relation to which we all have differing views. Politics should be completely divorced from this issue which we are debating tonight, lt is up to each and every one of us to vote and speak as we see the issue. 1. hope that now we can go back to that level and act as honourable senators dealing wilh a very important matter and keep personalities, vendettas and viciousness completely out of the debate.
– I wish to contribute to this debate to only a very minor degree. First of all, I deplore the attack that was made on Senator Greenwood by Senator James McClelland.
– Let us hope that he apologises.
– I hope that in all decency he will do so. I voted against this proposition, and I for one do not believe that we lake these actions lightly. 1 do not believe that we should take the responsibility of depriving someone of life on this planet: but I think there are one or two areas that warrant the retention of this penalty. I reflect on the comments made by the Leader of the Government in the Senate (Senator Sir Kenneth Anderson) when he voiced that opinion. I rise to support what he said. There are certain occasions on which this penalty should be imposed. I think of a case in which a person rapes a young child and then disposes of her at the end of that depraved act. I think also of the headlines in the newspapers today which refer to a person who puts a bomb on an aircraft and jeopardises the lives of many people. 1 believe thai in’ those areas we should take some action to make sure that there is a deterrent within thi; laws of this country. Tn all sincerity I believe that in most of these cases there is a way in which the death penalty can be obviated. But I rise at this stage really , in indignation at the way in which Senator James McClelland attacked Senator Greenwood.
– Let me say this in relation to the main argument that has been advanced-
– Are you replying?
– No. This is the Committee stage. I propose to try to confine my remarks to the proposed new sub-clauses we are considering-
– Mr Chairman, I raise a point of order.
Order! What is the point of order?
– I am only an independent. 1 heard what was said just now by Senator James McClelland and I do not think that you, as Chairman, should have accepted it.
– Order! Senator Negus, against whom are you raising a point of order?
– 1 am raising a point of order under standing order 4.18. 1 feel that the remarks passed by Senator James McClelland should be struck from the record and I suggest-
– Order! The honourable senator will resume his seat. A point of order in relation to another senator cannot bc raised against Senator Murphy, who has the call. Therefore, there is no substance in the point of order.
– Well, I will raise a point of order. Although Senator Murphy has the call at the moment, I wish to raise a point of order against a previous speaker, Senator James McClelland, who used offensive words with reference to the Attorney-General (Senator Greenwood). I ask you. Mr Chairman, lo act under stand ing order 41 8. which reads:
No Senator shall use offensive words against cither House of Parliament or any Member of such House, or of any House of a State Parliafent, or against any Statute, unless for the purpose of moving for its repeal, and all imputations of improper motives and all personal reflections on Members shall be considered highly disorderly. 1 request, Mr Chairman, that you ask for a retraction of the words that Senator James McClelland used*-
– Order! The honourable senator will resume his seat. As the Standing Orders provide that any objection shall be taken at the time when the words are spoken, the honourable senator is quite out of order in raising the matter at this stage.
– Mr Chairman, speaking on a point of order, I point out that honourable senators on this side of the chamber have been rising continuously so that the objection could be taken as soon as Senator James McClelland finished speaking. By a chain of fortuitous circumstances, they have been precluded from doing so. Therefore, I believe that Senator Webster is in order in raising his objection under standing order 418, and possibly under standing orders 438 and 439, in respect of the words used by Senator James McClelland.
– Order! Senator Greenwood rose in his place and objected, as was his right. No point of order was raised following his speech. Therefore, a point of order on the matter that was before the Committee then cannot be raised at this stage.
– I wish to pursue the point of order-
– Mr Chairman, 1 wish to raise a point of order. There is a standing order which says that a senator may not be interrupted while he is on his feet. No point of order has been taken against my speech: so I request that I be allowed to complete my speech. No exception has been taken, by way of a point of order, to anything I have said.
– Order! 1 have ruled 3 times - and I sustain this point of view - that 1 have called Senator Murphy and that no point of order can be raised on another matter.
– I return to dealing with the matter the Committee is considering; that is, the matter of the proposed new sub-clauses. The substantial issue that Senator Wright and Senator Greenwood have raised is perhaps as old as the discussion on the abolition of capital punishment; thai is. should certain crimes be excepted when one abolishes capital punishment? This was considered in great depth by the Gowers Commission in Great Britain. This was one of the tasks upon which it entered. The Commission, under the chairmanship of Sir Ernest Gowers, decided, after considering all the foreign experience, that while foreign experience gave support to the case for abolition it did not give support to the case for a grading of murders. The members of the Commission did not reach that conclusion with any relish or without great consideration; but they reached it quite definitely. They wrote:
Our examination of the law and procedure of other countries tends no support to the view that the objections to degrees of murder which we discussed above are only theoretical and academic and may be disproved by the practical experience of those countries where such a system is in force. We began our inquiry with the determination to make every effort to - see whether we could not succeed where so many have failed and discover some method of classifying murders so as to confine the death penalty to the more heinous. We conclude with regret that the object of our quest is chimerical and that it must be abandoned.
If one refers to the book called ‘The Homicide Act’ by Christopher Hollis - the first thorough examination of how the Homicide Act has been working in practice - ons finds I hat this whole topic has been discussed at great length, lt is impossible to arrive at any logical classification of crimes and say that such and such a crime is so atrocious that it must be accepted and that somehow other crimes can be dealt with by imprisonment only. The author concludes:
Not only is capital punishment not essential for the protection of society,, it has no effect on the murder rate whatsoever. Therefore there can be no question that the solution of all the conundram about responsibility and diminished responsibility, about murders of the first degree and mur.sers of the second degree, is to cut boldly through them by following the greater part of the civilised world into total abolition.
It appears that experience shows that no solution can be found by picking out one crime or the other. If one wants to one can imagine terrible crimes. The purpose of the enactment is not so much to do something for the individual; it is to do something for society. The purpose is that society will set an example by showing that the taking of human life by way of punishment is not to be permitted. Whatever might be done on a battlefield, by way of self-defence or in all these other cases, society is going to show that one shall not punish in this way and thereby help to set the example’ to show that human life is so important that people will be deterred by moral suasion from putting bombs on aircraft and from committing acts of an atrocious nature which have been described in this Senate. I ask that the matters be dealt with on the basis of the experience which I have indicated, that is that it is really not possible to distinguish and it is not proper to start to distinguish between crimes. I ask honourable senators to say whether they are in favour of this Bill. This is a matter of punishment. The State has to start to set the example and it should inflict this punishment for no reason whatever.
– Mr Chairman, on 3 occasions you ruled out of order-
Order! Is the honourable senator rising on a point of order?
– I am rising to a point of order. 1 ask that you give some ruling in relation to the matter which I previously raised. When Senator James McClelland made 2 assertions against the AttorneyGeneral they were quite clear in their area. I believe that standing order 418 deals with the use of offensive words. I did not take objection to the use of the words at the time because I believed that it was your perogative to protect the AttorneyGeneral. Standing order 418 states:
No senator shall use offensive words . . .all personal reflections on members shall be considered highly disorderly.
I believe that in the context of those comments which were made it was not for anybody to rise to a point of order but objection should have been taken by the Chair to the comments which were made by Senator James McClelland. No comments could be considered more disorderly in that context. Mr Chairman, perhaps your reliance was placed on standing order 424 which states:
Every such objection must be taken at the time when such words are used, and will not be afterwards entertained.
I would agree with your suggestion if a senator were to rise and take objection to the words. But the point is that standing order 424 ties up with standing order 423 which states:
When any Senator objects to words used in Debate, and desires them to be taken down, the President shall direct them to be taken down by the Clerk accordingly . . .
Standing order 424 then suggests that the objection must be taken down at that time. Mr Chairman, I suggest that no words which could be used in this Senate could be more highly objectionable than those used by Senator James McClelland. I ask you, Sir, to again review your ruling and under standing order 418 declare that the words used by Senator James McClelland were offensive words and that they personally reflect on a member of this Senate. I ask that you request Senator James McClelland to apologise for his remarks.
– I cannot sustain the point of order. It has been the practice in this Senate for objection to be taken at the time when the words are used. Senator Greenwood, as was his right, chose to rise and object. He did no ask for an apology. I find nothing in the practice of the Senate to sustain any point of order at this time subsequent to the occasion. If Senator james McClelland desires to offer an apology following the objection which has been raised by Senator Greenwood I feel that that action may improve the tenor of this debate. If that request had come from Senator Greenwood the position would have been clear and my action would have been prompt.
– Mr Chairman, I merely ask whether’ your attention has been drawn to standing orders 438 and 439 In which no time limit is mentioned. There is no suggestion that the objection must be taken al the time.
– Are you reflecting on the Chairman’s ruling?
– I am asking the Chairman a question. I am not laying down the law as honourable senators on the other side of the chamber attempt to do. I ask. Mr Chairman, whether your attention has been directed to paragraph (c) of standing order 438.
– 1 find no provision under which you can draw my attention to this mailer. If you are rising to a point of order I hope that you will state it.
– I state that standing order 438 does not require any objection to objectionable words to be taken at the time they are used. I think it will be generally agreed that the words used were extremely objectionable. I feel that Senator James McClelland probably used them in the heat of debate and that upon a mature consideration if he is asked he will probably withdraw the words. I merely say to you, Mr Chairman, that Senator James McClelland should be given the opportunity of withdrawing the words. If he will not I propose to move that action be taken under standing order 439.
Iiic CHAIRMAN - I cannot sustain (hat point of order.
– Mr Chairman. I have-
– The Chairman has said that he does not sustain the point of order.
– 1 think that a few words have to be said.
– Senator Cavanagh, are you raising a point of order?
– What is the point of order?
– My point of order is that there has been a deliberate attempt in this chamber to obstruct the business of the Senate. We have just seen this attempt in relation to this matter and it is a breach of standing order 438. Senator Greenwood who took objection to Senator James McClelland’s remark made a personal explanation and he was quite satisfied with his personal explanation. Therefore the matter should lie.
– I find no substance in the point of order.
– I rise to participate in the Committee debate. I preface what I have to say by expressing the greatest contempt, that 1 can possibly summon against a miserable expression from a professional man on the floor of the Senate, under privilege, amounting to criminal defamation of-
– Mr Chairman, I rise on a point of order. A question of order arose on several occasions, before. You have ruled upon that question and that matter has concluded. If objection were to be taken on this matter there is a procedure for it. If objection were to be taken against your ruling then that objection should have been taken at that time Objection to your ruling not having been taken then, the matter is at an end. The question before the Chair is the amendment to the clause, not the pursuance of some earlier matter which was disposed of by your ruling. I ask that honourable senators be kept to the subject matter of the debate, which is the clause before us, and that they not be allowed to continue the diversionary tactic of pursuing something which has been ruled upon by you and from which ruling no dissent has been moved.
– I wish to speak just 2 sentences to the point of order. If Senator James McClelland was speaking to the subject of the debate, any comment I make upon any specific part of his speech directly relevant to it is also relevant.
Earlier I appealed to honourable senators on both sides of the chamber to conduct this debate on the highest possible level. I think it will assist the Committee to attain that objective if the incidents that have occurred now can be regarded as past. Let us now proceed to a consideration of the matter before the Committee.
Sena’or WRIGHT - I wish to express a spirit of mercy and yield to that suggestion but unfortunately my point of view is that it is my right to engage in relevant debate in this Committee and if we have been submitted to an utterance of utter contempt
– This is defiance of the Chair.
– No, it is not. The Chair has ruled only that if offensive words are to be objected to they are to be objected to at once. Do not insult the Chair by saying that the Chair would ever fail to register an opinion on the contempt and filth of a senator who would utter words imputing to another senator that he applauds the murder of thousands of Vietnamese and Australians. To a senator who is low enough to use his privilege to that degree I shall summon such peaceful quiet as is appropriate at the proper stage. To look upon the individual is an incitement of the uttermost crudity of one’s nature. Having said that, Mr Chairman, let me turn to the substance of the debate. Senator James McClelland had the impudence, had the arrant ignorance, to suggest that the second reading resolution concluded the question now before the Chair which is-
– A lack of knowledge.
– It was complete arrant ignorance by someone . strutting round the place, a newly pledged endorsement from the Labor Party giving him impulses of impertinence. Let us pass on. He was followed by the Leader of the Opposition, Senator Murphy, with a glorious parade of references to the Gower Commission and Christopher Hollis.
– Christropher Robin is his favourite.
– I- pass no sinister reference about Christopher Hollis. He has an opinion, but he is not a member of this
Senate. In the Australian idiom, we represent a section of the people who are entitled to put a view on sub-clause (2.). Whether Senator Murphy knew it or not - I do not charge him at this stage with conscious deception of the Senate - he grossly misled the Senate.
– In what respect?
– Just a minute. I am making no imputations against the honourable senator except gross error. We are continuing this discussion of degrees of murder. Another aspect, he said, is degrees of crime. He should have said degrees of murder. The point is that whether Senator Murphy knew it or not the Gower Commission was considering only the crime of murder. Whether Senator Murphy or Senator James McClelland knew it or not, the United Kingdom has retained the death penalty for treason and for offences against the military law. So has New Zealand and so has Canada. Such was the indignation of Senator James McClelland upon my rising and .upon Senator Greenwood’s rising to debate proposed sub-clause (2.) in SenatorMurphy’s motion that perhaps he forgot that, the Standing Committee on Constitutional and Legal Affairs, which was charged with the consideration of this mat:ter, explicitly stated in its report: . . the Committee is of the opinion that, if the Bill should receive a second reading, additional consideration should be given in the Committee of the Whole to the following matters:
In my first speech on’ this Bill I specifically drew attention to that matter and I have heard no clarification from the learned jurisprudent of Sydney, Senator James McClelland, whose practice, I suppose, at some times has risen above the police court of Sydney. Another thing that the Standing Committee asked us to consider, with that singular outlook that betokens a wooden head, was this:
So I rise at this stage, Mr Chairman, id aver that Senator Murphy misled the Senate to a gross degree by suggesting that the matter that I had referred to as being embraced in his proposition - that is to say, the death penalty under the military law - had been swept under the carpet or had gone by the board. That is what he was putting to the Senate. The Gower Commission was not concerned with that; it was concerned only with degrees of responsibility for murder. The United Kingdom, Canada and New Zealand have failed to take the blind plunge which the learned Senator James McClelland would urge us to take - that is, to repeal all laws that require the death penalty as a proper sustain ment of the laws of treachery and military law. I am hoping that those who proceed with their inane laughter in support of the learned Senator James McClelland
– What is the Chair doing about the order of the House?
– I am saying that I have now risen to invite the learned advocates on the Labor side to clarify what the Committee stated - that the Committee of the Whole should inquire into the extent to which this law will effect the repeal of imperial laws and the impact it will make upon capital penalties in respect of military law. ls there anybody in this place so inane, now that these matters have been drawn forcefully to- the attention of the proponents of the Bill, as to suggest that they do not deserve discussion and that discussion will be inconclusive unless there is a complete and convincing clarification from either of these most learned gentlemen? In the case of Senator James McClelland, his experience would be less than that which might be obtained in any police court.
– The argument which has been put by Senator Wright seems to be an argument addressed to the person rather than to the subject mat’er. 1 will nol speak from my own experience. Now that the attack has been made on the experience of Senator James McClelland 1 should say that anyone familiar with his career and anyone familiar with the law books of- this counTy will find that his name occupies an honoured place in the law. If one were to look at the first pages of the first volume of the Commonwealth Law Repor’s one might find a starting point. Then one can proceed through the other reports of this country and find his name mentioned many times in most dis inguished company.
Speaking in answer to Senator Wright, he staled that in some way the Senate had been grossly misled. I will read again what I read to the Senate. Honourable sena’ors will see whether I suggested to the Senate something that was wrong. I spoke of the Gower Commission and I read this passage:
The Commission therefore decided that while foreign experience gave support to the case for abolition it did nol give support to the case for a grading of murders.
The Commission did not reach this conclusion with any relish or without great consideration, but it reached it quite definitely. The report continues:
Our examination of the law and procedure of other countries lends no support to the view that the objections to degrees of murder which we discussed above arc only, theoretical and academic and may be disproved by the practical experience of those countries where such a system is in force. We began our inquiry with the determination to make every, effort to see whether we could not succeed where so many have failed to discover some method of classifying murders so as to contine the death penally to the more heinous. We conclude wilh regret that the object of our discusion is chimerical and that it must be abandoned. 1 will leave it “o the Senate to say whether I suggested that the Gower Commission was not engaged on that task. 1 also referred to what was said by Mr Christopher Hollis. 1 said that he wroe:
Not only is capital punishment not essential for the protection of society, it has no effect on the murder rale whatsoever. Therefore, there can be no question that the solution of all the countries about responsibility and diminished responsibility about murders of the first degree and murders of the second degree, is to cut boldly through them by following the greater part of the civilised world into total abolition.
It is my suggestion that whatever these crimes may be. whether they be murders or otherwise, one can have differing views to hose held by others about which is the worst kind of crime which may be committed. I suggest again that the test is really the attiude of the state. It should not be looked at so much from the point of view of the individual, but rather that the s ate sei the example that it will not punish by way of capital punishment
– 1 wish to take up the argument thai Senator Murphy has just concluded. It is a repetition of something that he has said before. It is that the state should set the example. When I come to deal with one of my amendments, I intend to bring to the notice of honourable senators a vivid illustration of this case. I remind honourable senators that during the second reading debate I referred to the principle underlying self defence and said that if somebody were to raise a pistol at me and I got in first, I would lawfully kill according to the laws of this country. There can be no argument based upon the state setting an example. The state exists to administer the law with justice. We in the Parliament formulate the law so that courts will have a law capable of being applied with justice. To illustrate just how vivid is that situation, 1 draw to the attention of honourable senators the incident that occurred a day or so after our debate on 1st October when 2 policemen were shot in Sydney. One was going to the house of a man who had committed murder. He was shot while approaching it. His companion followed the criminal in the car. As the cars were turning at an intersection, the criminal levelled his revolver at the second constable who was pursuing him. Fortunately, the constable killed before he was killed; What 1 say is not h lawyer’s theoretical matter but actual experience. 1 have not a record of the second incident, but honourable senators will remember it. It took place 4 or 6 weeks ago when a young constable, pursuing a criminal in the afternoon, was shot almost in the presence of his wife. As for the law setting an example, I would think that if those pursuers had been fortunate enough to be surrounded by force so that the criminal could have been overpowered without being killed, in a case of sufficiently heinous murder, the state would set a very good example by taking the life of the man who had taken life in such disgraceful circumstances. The, other case I cite is of an incident which occurred in London on 4th November 1971. A young policeman, having fallen in love with another girl, strangled in bed his own wife, who was 8 months pregnant. He left signs of a forced entry on the windowsill and a note at the bedside consistent with an attack by an assailant. That is an instance of the state setting an example. I hope I have set that argument at rest for all time. 1 address myself now to the first argument that Senator Murphy restated. He read most carefully certain quo’ at ions a second time. I did not detect the same emphasis being placed on his first recitation.
– 1 used the same words as I used the first time.
– I said I did not detect the same emphasis the first lime he read the quotation which showed that the Gowers Commission was dealing Wit murder, nor did 1 detect in the passage that he read from Christopher Hollis the same emphasis. How ashamed Senator Murphy must feel now that he has confessed that the quotations which he put forward were confined to murder. They were put forward in answer to an argument I had put to the Committee on murder by treachery - treacherously surrendering a post to the enemy or by treacherous correspondence with the enemy enabling the enemy to torpedo one’s own troops. It was in answer to that argument that Senator Murphy first put forward these authorities. How could he say that they were quotations of propriety to put forward in answer to an argument that in respect of military murders, murders committed by treason and military treason the death penally should be abolished? Neither the Gowers Commission nor Christopher Hollis were asserting any such thing.
As Senator Murphy failed to refer to the fact that the United Kingdom still has not abolished the death penalty for treason or any other military offence, nor has Canada or New Zealand, T must say that I have some strength in suggesting to honourable senators that nothing Senator Murphy has yet adduced to us would advance the acceptance of proposed sub-clause (2.), which includes in it a repeal of the Imperial Acts which still apply the death penalty to the matters T have mentioned, that is to say, the treacherous surrender of a military post and treacherous correspondence with the enemy and consequent murder. I hope that the Committee will discuss this matter objectively now that it is in possession of the knowledge of the position in the United Kingdom. At first the United Kingdom abolished the death penalty for . a degree of crime - a degree of murder - but it has recently gone much further. I cannot stale the precise position at this stage, but 1 do know thai discussions are going on in that country at the present time in regard to this matter. But I would point out that, although the United Kingdom has repealed the death penalty for civil offences, it has retained it for all military offences and treason, as have Canada and New Zealand.
I plead with honourable senators not to put this chamber in a position where it could bc accused of precipitant irresponsibility by accepting this proposition. Let us give it further consideration and clarify the position. In the pressures of the day since mid-day when I knew that this matter was coming on for debate I have not had time to clarify the position lo my own satisfaction. I do not mind if somebody clarifies the position for me and convinces me to adopt a certain course as it is a matter of no import to me. I shall not be involved in military service or anything of the sort. But f do plead with the Committee to take full acceptance of its responsibility and not enter into a precipitate decision to accept proposed sub-clause (2), which would repeal provisions in the defence legislation which are’ absolutely indispensable to a proper system of defence.
– When I spoke some’ months ago on the motion for the second reading of this Bill I did so on the understanding that the Senate would be regarding this matter as one for an open vote. I find some difficulty in reconciling the fact that there appears to have been a solidarity of voting on one side of the chamber and an open vote on the other. I did so also against the background that I was of the view that it was a profound subject in relation to which individuals have the absolute right to be different. There should be no question of poking tongues out at each other. This debate tonight has in fact suffered by an intrusion of the argument that those who are in favour of the retention of capital punishment are in some way primitive and out of time with the 20th century. I stand here as a complete opponent of capital punishment, but I say now that I fully respect the views of those who seek to retain it. I think this chamber is doing itself a disservice in indulging in the kind of slang-whanging that has gone on. I wish to speak only briefly. I shall repeat that the view I have taken is that legal slaying - the use of capital punishment to terminate the life of a person convicted of murder or treason - is noi justified by the crime of illegal slaying. In other words, legal murder is nol to me the correct punishment for illegal murder.
The other thing I want to say is that it was of no joy to me tonight to find that the accident of history of my own life was quoted by the Australian Labor Party and then linked, however fortuitously, with what 1 regarded as a wrong, violent attack on the Attorney-General (Senator Greenwood). Lest anyone has any doubts about this I would point out that when I rose to speak on this Bill some 5 or 6 months ago I made it clear to the whole Senate that, although I held the views I have expressed on capital punishment, I did. to my back teeth support the military operations of the Allies in Vietnam. Let me make it perfectly clear that I said that. That being the case, I want to point out that .1 share the views of the Attorney-General in supporting Australia’s commitment in Vietnam. I deplore those who . seek to say that those who do that are relishing in murder. I se? the position as being quite to the contrary. I want to say that, in his stand on Vietnam and on other things, I have an immense admiration for the Attorney-General. I say to those honourable senators who are trying to interject that silence would be the more eloquent in this kind of situation. I want no part at all of my history being used to be turned against the AttorneyGeneral. 1 join with him proudly on where he stands on Vietnam. At the same time I believe in a vote of conscience and 1 will vote in favour of the abolition of capital punishment.
I will have some twinge of conscience regarding the question of the abolition of punishment for treason. I will vote for the abolition of capital punishment because in fact in time of full war when conditions are so precipitant that it is necessary for the Department of Defence to use capital punishment, the Government of the day has the powers so to implement. In peace time I am opposed to the use of such powers. I rise only to clarify the fact that I regret the remarks made about Senator Greenwood and, to the extent that they were linked with Vietnam, I join with him proudly.
Question put -
That the proposed new sub-clause (2.) be agreed to.
The Committee divided. (The Chairman - Senator Prowse)
Majority . . . . 3
Question so resolved in the affirmative.
Proposed new sub-clause (2.) agreed to.
– Mr Chairman.I have explained the effect of proposed new sub clause (3.). I think that it speaks for itself. I do not know that any further question arises–
– It is not clear to me, but I will explain my difficulty in a minute.
– I understand that Senator Wright may have something to put.
– It will be remembered that, in the second reading debate. I referred to the question of the application of this Bill to the Territories. Proposed new sub clause (3.) states:
This Act does not apply in relation to, or in relation to offences under, the taws in force . . .
I want to know why the double expression in relation to or in relation to offences under, the laws’ is used?
The second thing I want to know is why it is limited to the ‘Territory of Papua or the Territory of New Guinea’? What is to be the position in the other external territories of the Commonwealth? Proposed sub-clause (3.) continues:
I take that to mean Acts of the Commonwealth Parliament - or Imperial Acts, as extending to either or both of those Territories of their own force.
I have not had time to examine the proposition, but 1 would have thought that there were Acts of the Commonwealth Parliament which extended British Acts to the Territories. But these words are inserted: . . extending to either or both ofthose Territories of their own force.
That is my difficulty with regard to the text of the amendment. As to the substance of the amendment, it may be that what has been put before us by the Standing Committee on Constitutional and Legal Affairs has been examined by others in full. I will not dwell at length on the mutter, but it is my duty to bring it to attention. One of the matters that the Standing Committee was of the opinion that additional consideration should be given to in the Committee of the Whole was:
The effect of the proposed law on existing and future laws of the various Territories of the Commonwealth. The Committee understands that the Act would not apply to the Territory of Papua and New Guinea unless expressly stated to do so. .
That is the opinion of the Standing Committee. Despite that opinion Senator Murphy has moved an amendment which is an express direction that the Act should not apply. What is the position as to future Acts of Parliament? Do they need an express provision excluding Papua New Guinea? What kind of a vacuum does that create? I have not had occasion to consult the Act constituting the government there, but I think that domestic criminal law, if I may call it such, is one of the subject matters that is within the province of the
House of Assembly of Papua New Guinea. The defence forces are not. Therefore we Should consider the different application of our laws to the civil laws and the defence laws of New Guinea. The Standing Committee said that we should consider the effect of the proposed law on existing and future laws of the Territories of the Commonwealth.
I would be accused of taking up time if I were to attempt to read the great number of offences in the various territories which the Standing Committee has cited - not only Papua New Guinea but also Cocos Island and, I think, Norfolk Island. For my part, I have not had the slightest opportunity to examine these references. If the Committee is prepared to accept the amendment without examination of the references that is its responsibility, but I do believe that anybody who asks the Committee to take that course is under an obligation to explain the general effect of the provision before the Committee votes.
– I did that originally, but I will repeat what I said. The effect of the proposed law on existing and future laws of the various Territories of the Commonwealth, including the Territory of Papua New Guinea, is this: As regards Papua New Guinea the amendment will apply the Act to offences under the Commonwealth Acts and Imperial Acts extending to the Territories but not to offences under local laws of the Territory. However, the amendment will apply the Act to all laws of the Northern Territory and the Australian Capital Territory. Future internal Territories ordinances which might attempt to impose the death penalty would be invalid because they would be inconsistent with proposed clause 2, sub-clause (3.) of the Bill, on the principle that an ordinance cannot be inconsistent with a Commonwealth Act. Proposed Sub-clause (3.) purports to apply to the full extent that the Commonwealth Parliament is able to legislate. That is the clear basis and operation of proposed subclause (3.).
Proposed new sub-clause (3.) agreed to.
– Proposed sub-clause (4.) deals with the question that the. Standing Committee on Con stitutional and Legal Affairs raised about sentences which had been, imposed before the Bill came into operation. The amendment makes it clear that the Bil! will apply to offences committed before its commencement, including those in which proceedings are pending and those for which the person is under sentence of death at the commencement of the Act.
– The provision gives retrospective effect to the operation of the Act in relation to offences committed before the commencement of the Act. I suppose the Bill contains a provision which states that if a sentence of death has been pronounced and one of life imprisonment has been substituted that sentence is not affected by the Bill. Is there a specific provision to that effect?
– I beg your pardon?
– If an offence carrying the death penalty before the Bill is passed has been carried. to conviction and if life imprisonment has been substituted for the death penalty, I take it that that sentence of life imprisonment is preserved by the Act. T see no express provision to that effect. 1 have seen express provisions to that effect in State Acts. But that is not the point of my rising. I point that out incidentally. My real reason for rising is to call attention to the retrospective effect of the provision and to say that although it may be simply part of the penalty and not part of the specific ingredients of the crime - ordinarily our principle is not to apply different penalties and not to make different ingredients of crime retroactive^ - in this instance I would agree that once the provision comes into effect, as a general application of the criminal law, it should apply to all offences that are prosecuted after the date of the Act although the offence was committed prior to the commencement of the Act.
That principle was decided by the High Court when an alteration was made to the jury system to allow majority verdicts of manslaughter as an alternative to murder. It was decided that it was not a procedural provision, that it was so much embedded in the fundamental foundations of the law as to be part of the substance of the law and that it would not have retrospective effect without express operation. I think the principle - not the same but analgous - applies to this case. I wish to go on record as stating that as my reason for not opposing retrospectivity in this instance.
– The general effect of this clause is that where the offence had been committed before, on or after the date of the Act, capital punishment would be removed and there would be a substitution of a sentence of imprisonment for life. Therefore it would not in any way detrimentally affect any case where that penalty had been imposed beforehand.
Proposed new sub-clause (4.) agreed to.
Clause 2, as amended, agreed to.
Clause 3 agreed to.
– I move:
Omit ‘any Act, Regulation, Ordinance or other law”, insert ‘any law in relation to which this Act applies (including a provision that would, but for this Act, have effect by virtue of such a law).’
The purpose of this amendment is to deal with the operation of the Bill in Commonwealth places. This Bill would apply the law to all Commonwealth places. The intention is to apply it to the extent of the possible application of Commonwealth law, and that is the effect of this provision. Because the law of the States is incorporated by reference, technically this would apply the law so that persons guilty of an offence against those laws would not be subject to the death penalty.
– I come in where I earlier expressed myself in terms of the first amendment moved by Senator Murphy. The only purpose of this amendment, as I understand it, is to ensure that with respect to those laws which are brought into operation in the Commonwealth field by virtue of the fact that they are adopted by reference, this Bill shall have application. To be consistent with the view which honourable senators on this side of the chamber have expressed in regard to their opposition to the abolition of the death penalty, one should express the same points again. I think the only caution I should recognise is that having expressed my views before, I need not elaborate them as I did on the earlier occasion. I simply say that if it is felt desirable by Senator Murphy to raise this amendment and to put into the Bill a clause which says that its provisions apply to any law in relation to which this Bill applies, including a provision which would, but for this Act, have effect by virtue of such a law, it means that he feels that it is desirable, either for precautionary or for other reasons, to ensure that it would cover (hose areas in the Defence Act which adopt the English provisions. As I have said, I personally feel that this is an area which is quite incredible in the way in which it is invoked by the Opposition. T do not want to say anything more than that, but I feel that this is an issue in which the view I hold is such thatI would call for a division on the clause.
Statement by Senator
-I ask for leave to make a statement.
– Is leave granted? There being no objection, leave is granted.
– I refer to some remarks that T made earlier in the debate. I admit that in the heat of the debate I used language in excessive fervour. As I recall what I said, I accused Senator Greenwood of applauding the murder of thousands of people in Vietnam. I am prepared to withdraw the word ‘applauded’ and substitute the words ‘took no exception to’.
Senator GREENWOOD (VictoriaAttorneyGeneral) - by leave -I thank Senator James McClelland for the courtesy which he has extended.I do not regard it as anything more than a qualification of a remark which was made earlier.I have no exceptions for the attitude which I adopt. I have made my position clear in terms of the way thatI play politics. I play it hard. However, I hope I am not personal and I feel that if the record is examined it will be found that very few if any exceptions have been taken on a personal basis to anything that I have said. If Senator James McClelland feels that I am happy and that 1 regard what he has said as acceptable - that 1 took no exception to the murder of thousands of Vietnamese - he can take such consolation in that as he pleases. For my part I do not think there has been any murder of Vietnamese. If there was I would take exception, but I do not regard myself as having any occasion to thank Senator James McClelland for what he has said.
– I seek leave to speak on the same matter.
– Is leave granted? There being no objection, leave is granted.
I indicate to the Committee, and through the Committee to the Senate, that I intend to make a serious examination of the incident which occurred tonight. I indicate that I. reserve my position as Leader of. the Government in the Senate to move a substantive motion in relation to Senator James McClelland on our reassembly after this recess.
– The purpose of the proposed amendment to clause 4 is related really to the State Acts rather than the position in Commonwealth places. It is this derivative law to which it is directed. Senator Greenwood raised a question which he says correctly is already covered by the earlier matter. Perhaps Senator Greenwood might agree with me that the issue which he thought was being introduced is not being raised. The Bill relates really to Commonwealth places. That is what is being covered by this proposal. On that basis, whilst the amendment is a subsidiary matter, it means that there will be uniformity. I ask the Committee to agree to the amendment.
– I quite agree with what Senator Murphy has said and with the interpretation that he places on the provision - that it will have relevance to Commonwealth places. I believe that the draftsman had that in mind. I still would ask that the Committee divide on this amendment because I think it has a wider application. When you leave out the words any Act, Regulation, Ordinance or other law’ and insert in their place the simple words “any Jaw in relation to which this Act applies’, it appea»s to. me that it does raise those issues which 1 have canvassed already. Because it does raise the issue again, 1 for my part would seek a division on the matter.
Question put -
Til at the words proposed to be left out (Senator Murphy’s amendment) be left out.
The Committee divided. (The Chairman - Senator Prowse)
Question so resolved in the affirmative.
The question now is: ‘That the words proposed to be inserted be inserted.’
Question resolved in the affirmative.
Clause 4, as amended, agreed to.
Proposed new clause 5.
– I move:
That the following clause be inserted in the Bill: 5. - (I) This Act does not apply to or in relation to:
the offence of murder where the person murdered was a person performing duties as a member of the Commonwealth Police Force or the police force of a Stateor Territory of the Commonwealth;
the offence of murder committed by a prisoner where the person murdered was performing duties as a member of thestaff of a prison; (2.) In this section: prison’ means a place of imprisonment or detention of persons convicted of or charged with offences; prisoner’ meansa person who is undergoing imprisonment or detention ina prison or who. while liable to imprisonment or detention in a prison, is unlawfully at large.
The proposed new clause relates to the enforcement of civil law. Unless the appropriate penalty is preserved in the Act for the murder of a member of a civil police force whose duty requires him to confront criminals of great violence, you weaken the administration of the law and deter the recruitment of a proper police force. I wish to submit that every honourable senator who votes against this proposed clause is completely unjust to the policeman whom he puts in a position where his duly requires him to face violence on the part of criminals throughout the country. The effect of the second part of the amendment is that the Act should not apply in relation to a murder committed by a prisoner where the person murdered was performing duties as a member of the staff of a prison. It will be noted that this provision is confined to the case of a prisoner committing murder not on a fellow prisoner or on a civilian but on an officer who is required to exert force and discipline.
– In accordance with the sessional order relating to the adjournment of the Senate I formally put the question:
That the Chairman do now leave the Chair and report to the Senate.
Question resolved in the negative.
-I know that I will be met with the argument that Britain preserved this exception in its first modification of capital punishment and that it has since removed the exception. I am not sure what stage has been reached in the debate that is now going on in Britain on whether the decision to remove the exception was right. At all events, I maintain that it needs very scant consideration of the factors involved in maintaining a police force or a force of prison guards to see the justice of applying this deterrent against anybody who would be minded to murder a policeman or a prison warder.
I shall make a brief reference now in the context in which I intended to make it. If anybody wanted to consider this matter objectively, he would only need to consider the incident that was reported in the Sydney Morning Herald of 1st October 1971, even if it stood alone and there was no comparable incident to support it. But, in fact, there was another incident in which a constable was shot in Sydney within 6 months after this incident. As i said before, a criminal has caused the death of a woman in a house. The police approach. A constable or sergeant is shot as he approaches. The criminal then escapes in a car. A second constable pursues him in a car. On an intersection, during the pursuit, the criminal turns and raises his gun. The constable it a good enough shot to gel in first. Fortunately, he shoots the criminal dead in self-defence.
That is the sort of incident which, I submit, illustrates that the law is entitled to have this deterrent. So far as I know, there is no suggestion that this incident was anything other than a plain case of selfdefence by the policeman. If that policeman had not successfully dealt with his victim as his victim would have been dealt with by sentence of death if he had come before a court of justice, can anybody say that justice wou’d not have required that the death penalty be imposed as a deterrent against that sort of conduct, in defence of the police?
– Whom would it deter?
– Senator Cavanagh would be deterred. I do not imply anything against Senator Cavanagh. Let me add that all members of the community who have a potential for crimes of violence would be deterred, and the police would have that encouragement which comes from justice in that al least they would feci that their assailant had the deterrent of capital punishment if he thought that he would murder a policeman whose duty it is to secure him and arrest him.
– f hope Senator Wright will not think 1 am discourteous if 1 do nol deal with his amendment in great detail. I regard it as having been covered by the debate on the earlier matters. We have put the proposition that we think there should bc no exceptions. Senator Wright puts forward an exception in relation to a particular type of crime. Whilst there may be a lot to be said for the argument that that is a special and grave offence, it might be said by others (hat some kind of poisoning is a worse offence than that. There are all sorts of crimes of which one could think and which are terrible crimes. But the debate which has taken place has been on the basis that there should be no exceptions. I do not propose to go into the rights or wrongs of the particular exception which Senator Wright seeks. Rather do I say that the Committee has expressed, by vote, the view that there should be no exception to the principle. I ask that the Committee adhere to that.
– I support Senator Wright’s amendment which appears lo me to be a manifestly just provision to protect those who risk their lives io protect society. I recall having discussions in Melbourne with the staff of a prison a few years back. The circumstances of the case were, that a policeman had been murdered in Caulfield in particularly revolting circumstances. The criminal wa.s apprehended, convicted and sentenced to life imprisonment. The warders whose duty it was lo guard this man were, on 2 subsequent occasions, murderously attacked - in one case with a knife and in /mother with an implement. So, there was no penalty whatever to deter this life sentence murderer from taking such revenge or such action as he saw fit against tho.>e people in society who were discharging their duty of protecting the rest of the community.
I refer now to the fact that the London police force, which of course is directly concerned with the murder rate in that large city, realising that the death penalty has been not abolished but suspended for an experimental period in England has requested the Government to restore the death penalty in the case of the murder of policemen. Why? Because since the death penalty was lifted the murder rate against policemen has increased by 500 per cent; 5 times as many policemen were murdered after the suspension of the death penalty as previously. 1 join with Senator Wright in supporting this amendment, whatever may bc said about the rest of the Bill. 1 do not propose to go back over that. The Committee has spoken on that. But I believe that justice would be served if Senator Wright’s amendment were accepted by the Committee.
– As no-one else is seeking the call, I rise to make only a brief remark. I am grateful to Senator Hannan for filling in the details as to what is happening in London. 1 knew that the matter was under reconsideration, but 1 am very grateful to him for the information on the police death rate. What I want to add is that in Canada, after repealing the death penalty en bloc, it was specifically restored in the case of prison warders and policemen in 1967. ft was restored by a specific Act passed after, debate. The only other thing I wish to say is that I take exception to Senator Murphy’s statement that the Committee has resolved to abolish the death penalty without exception. The Senate has passed the second reading of this Bill; but I trust that the Committee will give consideration to all exceptions which have been circulated or which may be brought forward.
– I did not suggest that the proposal by Senator Wright was out of order. I said thai the effect of the previous decisions was that the exceptions would not be permitted. That is what was debated upon and, as I understand it, that is the view which the Committee was expressing. I ask that the Committee do not permit any exception. I suppose that on a practical matter this may be a small aspect but in relation to prison, as I understand it, this is not really a mat- ter of Commonwealth law. In any event, we do not have Federal prisons. It would be an offence against State law.
– What about the. Northern Territory?
- Senator Wright may be right about the Northern Territory but for the most part it is not really a matter of Commonwealth law. That is not the main reason for opposing the amendment. The reason is that we should accept that there will be an abolition of capital punishment and not a retention in some cases.
– Of all the cases which might attract one to resist the abolition of capital punishment this is possibly the most conspicuous because it is a situation where there is extreme vulnerability in the case of the victim and virtually a total immunity in the case of the perpetrator. As I say, that might well induce one who is opposed to capital punishment to resist its abolition in this particular case. However, I do not fe.el that one can select particular exceptions. I suggest as an example the. hijacking of an aircraft. There may not be the same immunity from punishment but possibly there is an ever greater vulnerability. If one puts emphasis on vulnerability as against immunity I think that one would say that of the 2 cases capital punishment should be retained in the case of a hijacking rather than in the case of an assault on a policeman.
– The honourable senator will have, an opportunity to vote on the mutter in a minute.
– Yes. I do not want it to be thought that there is any callousness of attitude, particularly in relation to the police. I am sure that every honourable senator in this place is particularly sensitive to and aware of the work and the courage of the police and of the danger into which police duty necessarily takes members of the police force. Therefore the Senate is not being callous and saying: They can take the risks and we will deny them the protection which the law could give them.’ I certainly would not like anybody to think that that dictates my attitude in this matter. It is primarily to make that clear that I rise. But I do not mink that one can go on making particular exceptions. If the philosophical principle is there then I think it has to be given legislative expression. We still do not appear to have resolved the basic question of the purpose of the exaction of capital punishment. It has been referred to as capital punishment. Is it punitive?
– What about the facts Senator Hannan brought forward?
– That is right. But I do not know that we have altogether discovered the real purpose. Is it to be punitive or is it to be deterrent in concept? One of the great dangers to which Senator Hannan drew attention when he spoke of most horrifying circumstances and to which the Minister for Works (Senator Wright) drew attention earlier is this: It can have the effect of clouding the calm, objective assessment of the position. About 18 months ago I was in the House of Commons when the Bill dealing with the abolition of capital punishment was presented. I could stay for only a limited period but the Bill was presented by a most distinguished bevy of members of the House of. Commons. It was brought in by the Home Secretary, then Mr Callaghan. It was spoken to by Mr Quintin Hogg, the former Viscount Hailsham and by Mr Duncan Sandys. One thing which impressed me was the. calmness and the lack of emotionalism in the discussion which took place in the House of Commons. It was a sensitive matter. Tt was a matter which might well have evoked the emotive response of every member of the House as could the matters which Senator Hannan and Senator Wright brought forward. But in the calm objective committee atmosphere of the House of Commons the matter was discussed with complete objectivity. I think that that is the only way in which this matter can be or should be discussed.
– I do not think I was emotional.
– No. The honourable senator raised very emotional circumstances which would certainly produce emotive response in a person of ordinary sensitivity and sensibility. If one went into these matters one could build up a totally emotional atmosphere which might completely destroy the ability to approach this situation in an atmosphere of calm intellectual ism. I think that that is how it has to be approached. While realising that in this case a person might be persuaded to resist abolition, I do not think that an exception can be made in particular circumstances. If this is an instance in which an exception should be made I am afraid that I cannot support it, even in this case. In those circumstances I do not support the amendment as propounded by Senator Wright. I can see the merit, the apparent logic and many other qualities in the amendment which would induce the honourable senator to present it and other honourable senators to support it. But in the total balance I find myself unable to be with him in the acceptance of this principle and this proposition.
– I was surprised to hear Sena’or Byrne say that this was a matter of emotion and that what. Senator Hannan and other honourable senators have said in this debate was emotional, lt is my view that the very basis of the movement of people who are so strong about t,he abolition of the death penalty is emotion. I find that people who want the abolition of the death penalty are always worried about people who have committed crimes such as people who have killed other people or people who have done the most dastardly and shocking things. I should imagine that to a victim’s relatives and close connections it must be a terrible circumstance. To me it seems that emotion is the very basis of people who want to wipe out the death penalty. When we look over the history of people who have been let out of prison after doing dastardly things, what do we find? They have done them again. Other -people have been killed.
– Do not become emotional.
– J am not being emotional. I am being factual. These people have been lel out and as a result others have been killed.
– Who were they?
– What about the fellow who raped several models in one of Sydney’s parks? A kindly judge gave a parole period of so many years. Judges poke out their chests and say that they have put people in gaol for so many years - 10 or 15 years - ‘but they are paroled after 4 years or some’hing like that. To my way of thinking, very often the courts are as weak as water. When these people are let out on parole we find that they do damage. What happened to the fellow whom I mentioned? He was released and he went to a school. An innocent young school girl was shot. A school teacher and another member of the staff or a pupil were also shot. These are people to whom emotional sympathy is given. As far as I am concerned in this human race of ours we might as well take an example from some of the lower order of animals which get rid of parts of their community which are not worth while. I think that we should do the same. As I said before, 1 believe in the death penalty. I resist Senator Byrne’s suggestion that because somebody on this side speaks on something, it is emotional. Let me say that without any question whatsoever emotion is the basis of the advocacy of people who want to wipe out the death penalty - and very often misplaced humanitarianism
– I am persuaded to enter this debate in relation to the amendment only because of! what Senator Wood has said I think he diverted attention from the amendment which is before the Chair to the general principle which was decided on during the debate on the second reading. I do not think it is emotional to draw the attention of the Committee to statistical facts, I accept Senator Hannan’s figures because I have no knowledge of what has happened in other countries which have tried what we are proposing here. J.t is understandable that those statistics would be as they are because if a man has committed a particularly violent crime such as armed robbery and has wounded somebody. Tn the course of that crime, when the police are endeavouring to apprehend him he is probably already up for a life sentence. What more has he to lose by shooting down a policeman in an effort to escape? The policemen are the representatives of society. I do not think we can ignore the statistical fact that one country faces great difficulty because of a huge leap in the percentage of crimes of this character - the murder of policemen. We have argued that the death penally is not a deterrent; that it is an act of vengeance in this case. Bui here we see a specific set of circumstances in which perhaps the threat of the death penalty is a deterrent. Do we owe more to the criminal than we do to those in our society who have to do the unpleasant jobs on our behalf? 1 think of the warder in the gaol who is charged with the incarceration of a murderer already under a life sentence for murder. If that prisoner murders the warder there is little that can be done to increase his sentence. He may be put on bread and water but then we get back to torture, which is something that none of us agrees with these days. I wonder whether the death penalty could not be considered as a further punishment which would act as a deterrent in those circumstances. I would like somebody to produce other figures to show me that that would not be so. To my mind there is a faint hope that the death penalty would act as a deterrent in those circumstances. If it did, whatever may be my beliefs about the taking of human life in the circumstances that we have discussed here tonight - and I voted for the second reading of this Bill - we owe it to those people to whom we give such tasks on behalf of society to hold on to any deterrent whatsoever. In the fina) analysis their lives are more precious than those whose lives we threaten to take if they go to the extreme of murdering a policeman or a warder acting in the course of duty.
As our law stands even today, we still make the final decision on the degree of the crime. I disagree with the argument that we should not discuss the degree of the crime. It is impossible not to keep in mind at all times that there are degrees of crime and degrees of responsibility. One man may commit a particularly atrocious sex murder and be found not guilty of murder’ because he is not responsible for his action. Society once may have considered him to be responsible but we have progressed and we recognise that there are degrees of crime which must be taken into consideration at all times when deciding punishment. This does not mean that if we retain the death penalty a man who kills a policeman at the moment of committing a crime, without really intending to kill the policeman, necessarily will be subject to the extreme penalty at all. But if he killed a policeman in the circumstances I outlined earlier - that is while he was endeavouring to escape from the responsibility for a crime already committed - if he was prepared to kill callously because he knew that no further retribution could be made against him, I think that is a different degree and I would be happy to leave it for our courts to determine, as we. do today. The courts make the final decision on degree and they deal with the final appeals if necessary.
– If he did not intend to kill he would not be armed.
– That is an oversimplification. That is not necessarily the case at all. In the past we have exacted the death penalty on people who have been with people who were armed and killed somebody in. the process of a robbery, lt mav be that in the mind of one person the arms were to be used merely as a threat in order to get whatever they were after. That person may never have dreamed of meeting a policeman who would be in a position of resisting the threat. That illustrates the point 1 am trying to make. Degrees of responsibility have to be considered. We have procedures in our courts and there is a final appeal to the representatives of the Crown. That virtually means there is an appeal to the parliaments of this country. At this point of time I see no harm in retaining the death penalty as a further deterrent against crimes of the type 1 outlined.
It would be much better to retain the death penalty for a period in order to see the effect of the advances that we propose in the form of the abolition of capital punishment in specific fields. Then we could take the final steps. It would be much better to progress in that way than to do what Canada apparently had to do. I wonder how many honourable senators who spoke quite sincerely in this debate, as did my colleague Senator Byrne, would still be prepared to vote against the reinstitution of the death penalty if they were faced with the statistical evidence that seems to be building up in England. To reinstitute the death penalty would be a greater step backward than to do what the amendment suggests, that is, to retain the right to exact the extreme penalty in circumstances such as those I outlined. In my opinion we should have that further deterrent to stop that type of crime from increasing and to protect the people whom we charge with the responsibility of maintaining law and order.
– 1 wish to speak about this particular amendment. lt is the only occasion on which I propose to speak about any of the amendments and therefore to an extent I shall address myself to all of them. The absence of facts and material to enable us to debate this aspect of the matter wilh greater particularity is a disappointing result of the report of the Senate Standing Committee on Constitutional and Legal Affairs. I had hoped that, amongst the other things that Committee would do. it would have ascertained some of the facts about the matter raised by Senator Hannan. One. must bear in mind that the total number of murders in the United Kingdom is very small. In 1965 1 think there were 32 capital murders and in 1967 there were 49 capital murders.
– - Last year ‘ 1 think there were 56.
– Yes. The increase may or may nol be of great significance. If there were some particular event in one year, such as a particular action on the part of one man, mad or otherwise, who shot it out with police officers, there could be a dramatic rise in the number of deaths of police officers irrespective qf the existence of the death penalty. I make no further comment on thai point. These are the sorts of things that I hoped the Committee might have been able to consider and report on to the Senate. The argument that if the death penalty is not provided persons convicted of murder and certain other crimes may be let out again and may commit further crime was dealt with, 1 think, in the earlier debate. To Senator Wood I would simply say that surely the 2 questions are separable. If one thinks of a person such as Bradley, the murderer of the Thorne boy, one would not find it very hard to imagine that if one had the opportunity to shut the door and throw the key away one would feel like doing it. 1 am not sure that that is a justification for taking Bradley’s life. After all, we hope that we have reached the stage in civilisation where the taking of life is abhorrent to the organisation of our society.
I cannot see that the arguments put forward in relation to times of war, the conduct of persons, the administration of law and the keeping of law and order justify the reintroduction or continuation of something which our society generally regards as abhorrent. The question is not an emotional one, although the approach is usually emotional. I rather regard it as a matter of the ideals of a society. To what do we aspire? Is there a justification for a departure from that to which we aspire? Much as I can sympathise with the problems that have been raised by Senator Wright and other speakers who are in favour of the amendment, who have spoken of the problem of the wartime situation and the problem generally of the control of prisons, 1 suggest that these are not justifications for the continuation of something which is totally abhorrent. There must be other ways in which our society can organise itself to deal with those problems.
Senator Wright, Senator Hannan and Senator Wood have referred to what has happened in other countries in relation to the increase in the number of deaths by murder of police officers, prison officers and other people in similar positions. Let us look at the experience of Australia. Has there been a dramatic increase in murders in the States which have abolished capital punishment? Do those facts which may be perfectly proper and relevant to be brought into the argument in relation to other countries actually apply in Australia? I have not heard anybody giving the figures, although it is my recollection that in the earlier debate Senator Greenwood made some reference to them. There does not appear to be any fundamental statistical evidence to support the argument as being applicable in this country, at this time. In conclusion, let me support Senator Carrick. I wish to make it quite clear that no vote of mine in relation to this matter which we have been debating should be taken as in any way supporting or approving the action which I regard as infamous conduct on the part of Senator James McClelland this evening. Because I have voted continuously in one particular way I do not wish to be taken as in any way condoning or accepting that behaviour. I make that point quite clear.
– I want to make it abundantly clear to my colleague Senator Rae that I as much as anyone in this chamber abhor and detest the very thought of executing a human being. But to me the point at issue is that I cannot see any normal, practical way, as Senator Little so clearly pointed out, of disciplining a felon who has absolutely nothing to lose. I cannot give names offhand because this position has arisen without notice, but 1 know of many physical attacks in Pentridge Gaol in Melbourne by people who cannot be disciplined in any other way. To my knowledge, 2 such cases were attempted murders. In one case, a guard was actually knifed but not killed. Can Senator Rae explain to this chamber how, short of invoking the death penalty - everybody loathes and hates the thought of it - a life sentence murderer can be deterred from going on a rampage?
– I will reply to Senator Hannan very briefly. I challenge him to produce any authoritative or statistical evidence to show that the position which he raised is any more of a problem in places which do not have the death penalty than those which do. In fact, my reading indicates to me that there has been no rise in the extent of the problem and that most prison authorities regard the lifer as one of their least problems.
– May I piously express the hope that common sense and judgment will not be overridden exclusively by statistics.
Question put -
That the proposed new clause 5 be inserted in the Bill.
The Committee divided. (The Chairman - Senator Prowse)
Majority .. .. 8
Question so resolved in the negative.
Proposed new clause 5.
– I move:
Honourable senators will notice that the difference between this amendment and the previous one is that in this case the accused is already in prison for the term of his natural life. In the previous case the murderer was in prison on any offence. This proposal is intended to put to the test the extremity of the illogicality and irresponsibility of those honourable senators who have become emotionally attached to what I have heard referred to as an ideal and as a philosophy, neither of which occupies a very real consideration when a policeman is faced by a murderer, whether in prison or anywhere else.
– As Senator Wright has said the wording of this amendment is very close to the wording of the previous amendment. This amendment has the qualification of the addition of the expression ‘for the term of bis natural life’. I would say that the same principle applies to this amendment as to the alternative which was just considered. I would oppose the addition of this clause to the Bill.
– I support Senator Wright’s amendment, but I do not feel that I should debate this matter, particularly having regard to what Senator Murphy has said. The principles involved are the same and I do not propose to traverse the same ground. I think it is suffice to say that I support the amendment.
Question resolved in the negative.
Proposed new clause 5.
– I move:
That the following clause be added to theBill:
This Act does nol apply to or in relation to- the offence ot murder when committed -
We have had experience of hijacking, of interference with aircraft and of attempts to blackmail the pilots of aircraft. We have also seen the extent to which a criminal has an advantage over a whole number of persons and how the lives of those persons can be so easily put in jeopardy by a criminal act. As this Parliament in 1962 went much further than the terms of this amendment and applied the death penally to attempts to commit this sort of crime, I suggest that the proposition I have submitted needs nothing but that statement to recommend it.
-I again indicate thatI am not prepared to accept the proposed new clause 5. I reject it for the same reasons as I indicated earlier. There is no question about it that the crime that Senator Wright has included in this proposed new clause is a terrible one. But, although it is a terrible crime, the principle involved is still the same. However terrible it may be,I can imagine worse crimes.
– There would have been only one worse and that would have been Hitler’s extermination of the Jews.
-I could imagine other crimes which are just as terrible as those mentioned in the proposed clause.
– Such as the placing of a bomb in a jumbo jet carrying women and children?
– Yes. One could imagine all sorts of things, such as poisoning the population of a city by introducing something into the city’s water supply or the destruction of young children in a dreadful way. One could imagine worse crimes than these referred to by Senator Wright. I am not sugges ing that they are nol terrible crimes; they are. But the principle is clear. It is on that general basis that I oppose this proposition.
– I support the amendment which has been moved by Senator Wright.I do so because of the very enormity of the crimes. Senator Murphy has agreed that they are dreadful crimes. A person who hijacks or lakes control of an aircraft, or who places a bomb on an aircraft and then remains on the ground, commits a careful, cold blooded, calculated act. That is not something done in the heat of the moment. I understand that about 70 per cent of all murders are committed in the family circle. Usually they are the result of an act of temper, hot blood and a furious fight. But a person who hijacks an airliner or a person who puts a bomb in an airliner does so coldly and dispassionately for the purpose of obtaining financial reward. Surely the very fact that there is that motive should appeal to Senator Murphy and his cohorts. That is something done–
– What about a withdrawal of that?
– Does the honourable senator know what the word ‘cohort’ means?
– The Assyrian came down like a wolf on the fold. His cohorts were gleaming in purple and gold.
– That is right; but that is not their sort of cohorts. I realise that Senator Murphy’s motives in presenting this Bill have been of the highest order. I realise that he is moved by deeply humanitarian motives. I know that he is thinking of the welfare of the community. I think he believes that in having this Bill on the statute book he will be improving the quality of life in the community. I think 1 can go that far. But 1 think that he is in error. I think his heart’ has overruled his head. I appeal to him to re-examine this matter.
– You flatter him. I do not think he has a heart.
– 1 do not agree with Senator Gair. Senator Murphy has a heart. I make no disparaging remarks whatsoever about Senator Murphy. But I would ask him to re-examine his feelings in regard to this particularly modern offence. This is something that has not happened during the centuries. No tradition of hijacking has existed. The Romans and Greeks had no trouble with it 2,000 years ago. But the Greeks, the Arabs and the Israelis suffer a good deal of trouble with hijacking these days. In the last 2 days, Trans-World Airlines in the United States of America had to search 260 jet aircraft looking for bombs. Two bombs have already exploded in its aircraft. In the case of a person unlawfully taking control of an aircraft, we are faced with circumstances totally different from those involving a single murder. For those reasons, I ask Senator Murphy to reexamine his position and to support the amendment which has been moved by Senator Wright.
– I have thought about this matter as probably everybody has thought about it. We have, all travelled on aircraft and thought of this same problem in relation to ourselves as well as in relation to others. Mass murder or attempted mass murder is a terrible crime. As 1 indicated before, it can be done in other ways. If we really start to try to draw distinctions between degrees of viciousness in looking at crimes, different results will be achieved depending on how those crimes are approached. The Gower Commission reached this conclusion. Those who look al these matters come to this decision. While an individual murder or an attempted murder ‘ is bad, one can imagine some ways in which a murder can be worse. Senator Hannan puts the attempted killing of persons in’ an aircraft as the most terrible example of murder. I bring to mind as being a worse offender the person who organises the distribution of drugs such as heroin through a country such as the United Slates of America.
Those drugs will not bring instantaneous death to a couple of hundred people but cause a lingering type of punishment and death to hundreds of thousands. I regard that as a worse crime still. I may be wrong on that. But it shows that we might almost start a competition to determine which is the worst of all crimes. The test is not really to put some crimes aside in this manner. In some way we must find and evolve methods by which we can persuade people against and deter them from such action. But, here, a principle is being adopted. I think that the State ought to set the example. For that reason, much as 1 deplore the extent and the enormity of the crime of hijacking, it should not provide an exception to what is an attempt to bring some sanity into this world.
- Mr Chairman, despite what has been said, the crime of people putting bombs in aircraft and possibly hijacking aircraft is a terrible business. Either action could cause a loss of life in an aircraft. Because of the magnitude of the crime and the terror involved for the people in the aircraft, including the air crew, I think (hat this is a matter which should be looked at. Such a crime may cause an enormous loss of life.
– Is it worse than the use of napalm?
-r- 1 know that argument. What amazes me is the sympathy (hal is shed for the people who commit these crimes. Those who are opposed to capital punishment are shedding tears about the people who cause these terrible losses of life, in the instance under discussion, by placing a bomb in an aircraft. Let me draw this illustration: We had the case yesterday of Trans- World Airlines and the case of another American airline. Such incidents could happen here. Let us suppose that an airline company was asked for some millions of dollars. Let us suppose further that the money was paid to the persons committing the offence and that, in the meantime, because they had no control over the situation and because the situation was out of control, the bomb blew up one of the airline’s planes carrying a load of passengers. What would happen? Our courts are kind-hearted today. They are so soft and gentle to wrong-doers that we would find that those responsible would be sen- tencedto a number of years in prison which would be cut considerably by parole.
– Take them to Mackay and hang them.
– If they went there, they would really live a great life. Seriously, they would soon be out on parole. When they were released, it would be likely that the money that was paid to them would not have been recovered. Following their release, these people would be living in luxury because of the money that they had obtained in such a terrible way. This could happen. Let us consider the size of the aircraft in service today. As an example I mention the Boeing 747, the Jumbo jet. Let us assume that this happened on one of those jets carrying several hundred people. Those hundreds of people would be killed. Do honourable senators mean to tell me that it is a fair and reasonable thing for the individual who has committed such a mass crime to be able to enjoy in later life the ill-gotten gains that he received from some airline which had been frightened by him and had paid up? To me, in view of the terrible tragedy involved in such a crime, the idea is ridiculous.
– What would the honourable senator do if somebody pinched his bike? Would he hang that person?
– If somebody pinched my bike, I would say that that person was on the road to good health because he would be a cyclist in the future. I return to the serious business of considering this amendment. As far as I am concerned, to worry about the life of one person as against the lives of several hundred people is completely out of proportion. I think that there is no question about it: There is only one way to deal with people who indulge in this sort of thing - to get rid of them.
Question put -
That the proposed new clause 5 be inserted.
The Committee divided. (The Chairman - Senator Prowse)
Question so resolved in the negative. Title.
A Hill for an Act to abolish capital punishment under the laws of the Commonwealth.
– I move:
The reason for adding those words is a technical one. The Bill refers to laws which are laws of the Territories and Imperial Acts.
Question resolved in the affirmative.
Title, as amended, agreed to.
Bill, as amended, and with an amendment to the title reported; report adopted.
Bill (on motion by Senator Murphy) - by leave - read a third time.
– by leave - I present the fourteenth report from the Publications Committee.
Report - by leave - adopted.
Motion (by Senator Sir Kenneth
That the Senate do now adjourn.
– I will not detain the Senate for any lengthy period, but J want to refer to something that happened in Queensland today. The freedom of an Aboriginal woman is at stake. Those who have read the Press during the last few days will know that I related a certain incident to the Senate Standing Committee on Social Environment. I refered to a lass who had been punished for allegedly wearing her skirt at a length shorter than that acceptable to the Superintendent of the Doomadgee Mission in the Gulf of Carpentaria area. Honourable senators will recall, from reading the Press reports, that the Superintendent sent a telegram to the State Minister for Aboriginal and Island Affairs denying hat an offence of this nature had been committed on his mission or that anyone had been punished. The girl’s name was not mentioned by me at the Committee hearing or at any other time. Mr President, 1 am being careful in my remarks because I do not want to infringe the amended standing order 308 which deals with matters before a standing committee. All the material that I am using tonight is new matter. I have a prepared statement which- covers it in detail. 1 shall fill in the relevant details as I proceed with my contribution to the debate. r regret to say that today the girl was picked up in Mount Isa by the district representative of the Department of Aboriginal and Island Affairs and was taken to his office for interrogation. As I understand the position, the girl is. still under the Act. The obvious end result will be that she will be punished by the Department or she will be returned to the mission for punishment. This will happen over my dead body and over the dead bodies of all her friends. This gives a lie to what the Superintendent said in the early stages. He said that the incident never happened. 1 understand that when the alleged offence was committed the girl wrote to the Director and complained about the treatment that had been meted out to her.
– What was the offence?
– She was punished originally because she allegedly wore a mini skirl which, in the eyes of the Superintendent, was too short to be modest.
On previous occasions 1 have alluded to other happenings in this area. Quite frankly, I am fed up with the discrimination against Aborigines and Islanders throughout Queensland. So I propose tonight to raise matters which I had hoped to raise before a committee on a future occasion. When I made the statement it was made in good faith and so far as I was concerned the evidence that I had in my possession was beyond doubt. 1 regret that the mission superintendent should have seen fit to send telegrams to the State Minister in charge of Aboriginal and Island Affairs denying that the punishment which I mentioned a moment ago had been inflicted. At no time did I mention the name of the girl. This was for the girl’s protection. 1 agree that there is a tape recording in existence which has on it the names of several Aborigines and 2 or 3 white people.
A challenge was made by State Minister Hewitt asking that the names be supplied, but the information was not made available to him because of a fear that punishment would be carried out against the people involved in the confession which had been tape recorded. A couple of other things have happened which I had hoped not to have to mention in this place. I now propose to mention them. I charge the superintendent of the mission with inhuman conduct. I make the same charge against the State Minister in Charge of Aboriginal and Island Affairs and against the Director of the Department of Aboriginal and Island Affairs in Queensland. Not only has the girl, Miss Johnny - this is the first time her name has been mentioned publicly - been unfairly treated but there are dozens of others, both boys and girls, who also have been subjected to punishment of a kind which should not be meted out to any human being.
Some years ago 16 teenage girls were accommodated in a mission dormitory. Some 12 - all around the age of 14 years - could not longer suffer the discipline and decided to run away. Four other teenage girls decided to remain in the dormitory for the purpose of looking after the younger girls who also were accommodated there. The 12 girls were subsequently caught. They were subjected to physical beating by , their parents under the supervision of the I superintendent, and were told that if th ev struggled during the beating they would have their hair shaved off. Some of the girls struggled and one of them, Hannah Barclay, was among those who had the whole of her hair shaved off. I should mention that Hannah Barclay this evening made a statement in Mt Isa to this effect. That was a disastrous and traumatic experience for a little girl of 14 years. Admittedly this happened several years ago, but the punishment has been repeated since then on more than one occasion. A number of girls were punished for talking to a white man employed on the mission.
The food served to people on the mission has improved in recent months. Previously the standard of meals was such that for breakfast they were served boiled wheat complete with weavils and maggotts, and the other meals were largely comprised of bread with treacle or dripping, or sweet potatoes and green peas, and sometimes pumpkin and meat was served. On another occasion a young lad who had been released to work away from the mission saved his hard earned wages and was able to purchase a car. When he returned to the mission to visit his relatives he was told that he could not bring his car onto the property because the ownership of the car could only be described as sinful. I am citing all these instances which could be supported by evidence if a royal commission into the conduct of the mission were held. This mission is not alone in treatment of this kind. Missions on government reserves in Queensland are little or no better, and sometimes they are worse. Discrimination against Aborigines is one of the blights on the conscience of Australians in 1972. So far as Queensland is concerned it would assist the public conscience if the manager of Doomadgee would resign and if the Minister for Aboriginal and Island Affairs and his Director would also do the same. Justice must be brought to the people of this country. These are the original Australians. If the Parliament is not prepared to do this, I fear what may be in store for us in the future. I make this appeal to the Minister for the Environment, Aborigines and the Arts (Mr Howson) at the Commonwealth level and ask him to conduct a searching inquiry into the Queensland Department and the conduct of all senior people who come under the control of the Queensland Minister.
I propose to refer to another matter on which information was transmitted to me today, lt concerns an instance of discrimination which unfortunately happened in my own home town of Townsville. I shall read the statement as it was transmitted to me. It states: l, Cecilia Evelyn Pryor of 6 Hodel Street, Rosslea, Townsville, do hereby state that on the evening of Saturday, 4th March, 1972, at approximately 8.30 p.m. I had requested the company of 4 of my friends, namely Joan Cole, Robert Cole, Malcolm Cole, and Ava Breckenridge, lo what I considered a nice quiet hotel, to participate in a few quiet drinks. We thereby at my own request, entered Langs Hotel as my friends hr.d never heard of this hotel.
I might add that this statement is in the girl’s own words. She is a highly respectable girl who is well known in the Townsville area and is looked upon as a decent type of lass. Her statement continues:
We were observed entering the public lounge by an elderly gentleman, who had waited until we had seated ourselves around a table before approaching us and informing us that he could not serve us. When I asked him the reason why he said that he only worked there and earned his wages there and had been given instructions -not to serve the 2 coloured boys.
He then said that we could sit there for a while and- probably even have one drink if we liked, but then we would have to leave. I requested to speak to the manager, because I myself had visited this same hotel on numerous occasions, and I had never had any trouble such as this. The gentleman then informed me that the manager was away on holidays. I then informed the gentleman that we would take our money elsewhere, but not to consider the matter finished.
After leaving the hotel we were interviewed by 5 white men who told us that they had overheard the whole incident, and were not impressed, and also stated that 8 regular customers had almost followed us out of the hotel, and in the future would find somewhere else to drink. Furthermore I wish to add that all 5 of us are over 21 years of age and would be of respectable attire.
On Monday morning I telephoned Langs Hotel and requested to speak to the manager. The gentleman who answered the phone said that he was in fact the manager. I told him who I was and informed him of the incident on Saturday night. He interrupted me by telling me that he had already heard about the trouble and he was very sorry about what had happened, but there was nothing he could do about it. When I asked him why he would not serve us he simply stated that he could not serve the coloured chaps because once one or two were permitted to enter the hotel, they would soon be running the place.
He also added that he did not mind serving drink to girls, but it was a policy from way back that they would refuse to serve dark boys.
I have visited many places while serving 6 years In the Air Force and have probably been fortunate inasmuch as not experiencing discrimination before.
I could expect this in the places I have been, but nol. in my home town.
The statement was signed by Cecilia Pryor of Hodel Street, Rosslea, Townsville. 1 ask that this also be referred to the Minister for the Environment, Aborigines and the Arts, lt is not the first time there has been discrimination in Townsville. Normally, in the past, we have been able to quieten things down by talking to the hotel association but lately there have been too many cases of discrimination and it is not good enough. If the hotel would serve a lass who was not white, surely to goodness in these circumstances a respectable bunch of youngsters, all over the legal drinking age, should have been entitled to a social drink on a Saturday evening.
The major point that I have raised, of course, concerns the Doomadgee mission ca.se. I regret tha* this has had to be brought out in public in these circumstances but, in my own mind, I am clearly of the opinion thai unless these things are exposed to public view they will be pushed under the carpet, and they will continue to happen for the next 50 years if some people have their way. I make this submission respectfully and 1 hope that the Minister will do something about it immediately.
– The matter with which 1 propose to deal concerns the payment, or rather the nonpayment, of unemployment benefits. I am sure that, honourable senators will recall that some weeks ago there was a protracted industrial dispute in my home State of Victoria and, from memory, I think the dispute ended on 15th February, because it was on that day that the Minister for Social Services (Mt Wentworth) issued a Press statement of which I have a copy. I obtained the copy this evening from the Parliamentary Library and I propose to quote only three or four paragraphs of this very extensive statement by the Minister with respect to this subject matter. Among other things, the Minister said:
Payment of unemployment benefit to members of unions participating in the State Electricity Commission strike was refused in accordance with the procedures laid down under the Labor Government on the instructions of Mr Chifley, Dr
Evatt and Senator McKenna. These procedures have not been varied since the time they were first determined.
The Minister went on to say:
Nov.’ that the State Electricity Commission strike has ended it will be possible to pay unemployment benefit without this restriction.
He further said:
Those who registered between the 1st and the 8th February will of course be eligible for Unemployment Benefit as from 15th February if they are still unemployed, but whether they are paid benefit for the period between 8th and 15th February
That was approximately the duration of the dispute- will depend upon whether they lost their employment because of the strike and belonged to one of the unions sponsoring it.
He went on to say finally:
It will be appreciated that the heavy unemployment caused to other workers by the State Electricity Commission strike has put an inordinate toad of work on to the Department, but f have given instructions that delays in determining eligibility for unemployment benefit in respect of the period between the 8th and 15th February should be reduced to the absolute minimum.
I think any reasonable person would have, interpreted that statement by the Minister o have been an instruction or, if you like, a ruling directed to officers of the various district branches of the Commonwealth Employment Office to begin to assess the entitlements of those who have lodged claims during that period of the industrial dispute in Victoria for the purpose of processing those claims and making payment accordingly. But I find that in an address in another place last Thursday night, 2nd March 1972 - his remarks are recorded at page 563 of Hansard - a colleague of mine raised this matter again with the Minister. He said:
I intended to raise this matter last Thursday, during the debate on unemployment benefits, but in order to save time I discussed the matter with the Minister and officers of the Department. I was informed that a ruling had been made that day and that it would be in transit to the Melbourne office of the Department of Social Services that afternoon.
I remind the Senate and the AttorneyGeneral (Senator Greenwood), who represents in this chamber the Minister for Social Services, that the statement I first read was issued as a Press statement by the Minister for Social Services on 15th February. The extract I have just quoted from Hansard indicates that the Minister had decided to issue an instruction on 24th February, exactly 9 days later. I thank my colleague, the honourable member for Corio, Mr Scholes, for the information he supplied to me this evening in order to bring to the notice of the Senate the fact that whatever instructions have been issued, if they have been issued, they certainly have not been able to traverse the pipeline between Canberra and the Geelong office of the Commonwealth Employment Office. My colleague informed me this evening that he communicated with an officer at the Geelong office and was informed that approximately 5,000 people had registered for employment with that branch and that of thos? 5,000 between 2,000 and 3,000 had lodged applications for unemployment benefit. But the Geelong office was unable to process those applications because it had no clear instructions as to precisely how they were to be processed.
I do not think I need delay the Senate unduly by canvassing the hardship of the individual who is affected by unemployment. He suffers hardship not only during the course of that unemployment but also post unemployment, because it can take very many months and in fact years before what he has lost during his unemployment is made up. f think the Minister will agree that this undue delay simply aggravates that hardship and the distress these people experience during the course of unemployment. I cannot say precisely what is the position in the metropolitan area but if the state of affairs in the Geelong district is any indication and it has an application to the metropolitan area, then the number of people being deprived of a payment to which they are absolutely entitled at the present moment would be astronomical in the metropolitan area. I. frankly do not believe that this situation can be tolerated. I ask the Minister to inform the Senate whether instructions have been issued, whether those instructions in. fact have been acted upon, and by what means they are being acted upon. I ask the Minister to treat this matter as urgent because 1 am sure he will agree, as will every honourable senator in this place, that it is a matter which requires immediate attention in order to provide entitlements to those people who have lodged claims for unemployment benefit. Although their claims may have been lodged as far back as a month, they still have not received any payment to date.
– I just want to draw the attention of the Senate to the fact that if honourable senators fee) inclined to address themselves to the motion for ‘he adjournment of the Senate, it might be a good idea if they found wether they had enough supporers to keep the Senate here.
– I seek the indulgence of the Senate to raise with he Minister for Air (Senator DrakeBrockman) who, in this chamber, represents the Minister for the Army (Mr Kat’.er) an answer which I received today to a question that I placed on the notice paper recently. It concerns he Government’s failure to proceed at a reasonable rats towards the establishment of a Citizen Military Forces headquarers at Macksville on the mid nor:h coast of New South Wales. If this is any example of the efficiency of the Army and of the Government’s desire to get an effecive Citizen Military Force, all I can say is: God help Australia.
I first made representations to the Minister for the Army on 15 h December 1969 concerning the establishment of a Citizen Military Forces depot at Macksville. After receiving the initial formal acknowledging on 23rd December 1969, on 5th March 1970 the then Minister for the Army, Mr Peacock, wrote to me in these terms:
Consideration of this matter is now complete, and I wish to take this opportunity of advising you that it is proposed to re-locate the Headquarters of A Company 2 RNSWR at Macksville, wilh effect from 20lh April 1970. Action will then proceed to provide a new training Depot in the town.
That was just over 2 years ago. I followed the matter up by asking questions in 1970,. and on 3rd June 1970 I received an answer advising me that at that time the Commonwealth was negotiating for the acquisition of a suitable area of land at Macksville on which the proposed depot, could be constructed, but that at that stage the Minister was unable to forecast pre.cisely when building might commence. On 13th October 1970 the then Minister for the Army advised me that a suitable site had been selected and that the Department of the Interior had arranged for a valuation of the property so that .negotiations for acquisition might proceed. He also said that acquisition was proposed in that financial year, namely 1970-71.
Last week I followed the matter up with another question in which I asked what action had been taken, having regard to the statement to me by the former Minister on 5th March 1970 that the depot would be relocated. I wanted to know what action had been taken to provide a new training depot in Macksville in accordance with the Minister’s statement of 5th March. The Minister replied:
Headquarters A Company 2nd Royal New South Wales Regiment was relocated from Kcmpsey to Macksville on 20th April 1970.
A three-acre site was acquired in 1970-71 and the proposal for the reconstruction of a depot was included in the draft design lists 1970-71 and 1971-72. On each occasion, however, financial limitations and the existence of higher priority items prevented construction of the depot.
The Minister went on to say:
The proposal is at present under consideration for inclusion in the draft design list 1972-73.
The last sentence of the Minister’s answer to me is a stunner. He said:
If this happens and if construction is authorised in 1973-74, completion of the depot could be expected about the end of 1974.
So, here we have a company of the Citizen Military Forces which has been playing around in an area near Macksville since 1970 and if a few ‘ifs’ are carried out by the Government the depot might be completed by the end of 1974. How this Government can say that it is interested in getting young men to serve in the CMF when units are being treated like this, frankly is quite beyond me. How the Government can say that it is anxious to solve the unemployment problem in rural areas, when it does not take advantage of this perfect opportunity to take up some of the slack in unemployment, is quite beyond me.
Macksville comes within the employment district of Kempsey, which is about 40 miles from Macksville. The figures indicate that for last month 396 men and 229 women were unemployed in the Kempsey district and there were only 36 unfilled vacancies for men and 24 for women. How the present Minister for the Army, a Country Party Minister, can say quite cavalierly that, if the proposal is included in the draft design list for 1972-73 and if construction is authorised in 1973-74, completion of the depot might be expected by the end of 1974, is again beyond me. Members of the Government parties go around the countryside of New South
Wales saying that they are anxious to take steps to solve the unemployment problem. As my colleague Senator Mulvihill reminds me, the present incumbent of the electorate of Cowper is now an Assistant Minister.
I point out to the Minister representing the Minister for the Army that in the last sentence of the Minister’s reply to me there are 2 ‘ifs’ and the phrase ‘could be expected’. If the Government thinks it is fooling itself, it might be; but it certainly is not fooling the people of Macksville or the electors of Cowper. If this is any indication of how genuine the Government is in trying to overcome the unemployment problems in rural areas and if this is any indication of how it wants young men to serve in the CMF, just as Mr Frank McGuren won the seat of Cowper in 1961 so will Mr Cronin, the Labor candidate for Cowper, win the seat in 1972. It is this type of answer which, I suggest, will sound the death knell of the Country Party in the area. The people of Macksville are entitled to far better treatment than that which is being accorded to them by this Government. I implore the Minister representing the Minister for the Army to get some positive action for these people, instead of’ the nebulous and indefinite answer that; was given to me this morning.
– Initially Senator Keeffe raised one matter regarding the treatment of Aborigines, in the context that it was either an injustice or a matter of discrimination.I do not know the full details of the matter he raised. He is not now in the chamber.I think that in those circumstances it is not incumbent upon me to attempt to reply to him. AllI will say is that I will convey to the Minister for the Environment, Aborigines and the Arts (Mr Howson), whom I represent, the matter that he raised. I regret that he raised the matters in the way he did. If advice is given to the Minister or to myself then information can be obtained so that the matter can be aired and points of view can be explored in this chamber. Earlier this week Senator Keeffe raised a matter before one of the Senate standing committees. He was given considerable publicity. Subsequently, as I read, the person against whom that accusation was directed denied what Senator Keeffe said. Who am I to say where the truth lies in an issue like this? Who is anybody to say where ;he truth lies when the accusation is made before a Senate committee by an honourable senator and the person against whom it is directed subsequently challenges the veracity of what he said? Tha’ is one of the problems which we have to consider. 1 assure the Senate that it is one of the problems which is being considered at this time. 1 notice that the prepared statement which Senator Keeffe had tonight was not a sworn statement. As Senator Keene said, it was a statement signed by a particular person. I only hope that in due course we will not have somebody challenging the account which has been given. But that is one of the problems which we face in these issues of alleged discrimination against Aborigines. This is one of the issues involved in an alleged injustice which has to be aired.
– Why is it not investigated?
– One has te obtain the facts first before ohe can determine the matter. 1 think it is regrettable that people are prejudging the issues and imputing guilt when, obviously, there must be 2 sides to every story. I shall refer what Senator Keeffe said to the Minister for the Environment, Aborigines and the Arts so that he can examine the matter.
Senator Brown raised a matter relating to unemployment relief and the conditions under which it is granted. I do not question the statement which was made by the Minister for Social Services (Mr Wentworth) some time ago that the policy of the Government with regard to persons to whom unemployment relief is granted is consistent with the policy laid down by Mr Chifley and Dr Evatt in 1947. Where there are persons who are members of a union and that union is on strike, those members do not qualify for unemployment relief if they are out of work. I assure the honourable senator that that was the policy which Mr Chifley and the Labor government laid down in 1947. It is appropriate that the Government should follow the same policy because I think it would be unfair to the mass of taxpayers and other unionists if we paid unemployment relief to unionists who are out of work when it is fellow members of their own union who are causing the strike which is creating their unemployment. I do not know whether that is what Senator Brown was challenging but I certainly understood him to be questioning, the application of that policy.
The other matter he raised related to whether the procedures of determining who is entitled to unemployment relief are carried through as speedily as they could be. Tonight, without any prior knowledge of what the honourable senator was raising, I am not in a position to give hint any information at all. I wish he had spoken to me. I would have obtained as speedily as I could some useful information from the Minister. 1 suggest to him that if he is concerned about the welfare of the persons whom he has mentioned, the best way of obtaining the information is to go direct to the Minister, particularly where the issue is the welfare of people who are wanting this money. I can say only that if the honourable senator does not go to the Minister and does not come to me but chooses to wait until after midnight to raise the matter during the adjournment debate there is a political point to be made. Obviously there is one way of getting the true information and that is by going directly to the source. But if the honourable senator chooses to wait until after midnight to raise the matter during the adjournment debate without going to the source 1 think it is fair comment that the honourable senator is trying to make politics of the matter. With all that, I shall convey what the honourable senator has said to the Minister. I am sure the Minister will give the honourable senator the information which, as I said earlier, if he had approached the Minister directly would have been given to him immediately.
– I listened very carefully to the speech made by Senator Douglas McClelland. I am aware that there is no depot at Macksville. I point out to the honourable senator that the headquarters of A Company, 2nd Battalion, Royal New South Wales Regiment, is at present operating from rented buildings located at the showground and the training of the men is carried out in the showground area. Whilst I was listening to the speech made by the honourable senator I thought to myself that no doubt there would have been a number of contractors who would have applied for the contract to build the depot. I asked myself whether these, contractors would not already have had their men working on some other jobs. I also considered whether these people who are unemployed would be capable of working on a building site. If they are not capable of doing this work, would the Australian Labor Party place them on a building site to carry out specialised work? I do not think that the honourable senator has gone into this question fully enough. In the answer supplied by the Minister for the Army (Mr Katter) and which the honourable senator read the Minister made the point that the existence of higher priority items prevented the construction of the depot. I think that the Army is the best judge of priority needs.
– And also because of financial restrictions.
– Yes. I am sure that the honourable senator would be one of the first to get to their feet in this House if another job being undertaken in New South Wales for the Army had been cancelled to give this particular job priority; he would have risen in the Senate and advanced the cause for the area in which the job had been cancelled. However, I will draw the attention of the Minister to what the honourable senator has said.
Question resolved in the affirmative.
Senate adjourned at 12.12 a.m. (Friday) till 3 p.m., Tuesday, 21 March 1972.
Cite as: Australia, Senate, Debates, 9 March 1972, viewed 22 October 2017, <http://historichansard.net/senate/1972/19720309_senate_27_s51/>.