27th Parliament · 2nd Session
The PRESIDENT (Senator the Honourable Sir Magnus Cormack) took the chair at 1 1 a.m., and read prayers.
– Last night I listened intently to Senator Cavanagh’s argument put during the debate on the motion for the adjournment of the Senate. I believe that the comity of Senate life requires me to make this explanation. 1 spent some time last night and this morning considering the argument advanced by the honourable senator and therefore I make the following statement: lt is a long established practice that time occupied in raising and determining points of order is included in the time allowed to an honourable senator to speak. In other words, no allowance is made in the time allowed to an honourable senator to speak for that portion of his time taken by the raising and considering of points of order. On Tuesday evening Senator Georges commenced his speech at 9.44 p.m. Points of order were taken and a matter of order was still under consideration at 10.30 p.m. when the question for the adjournment of the Senate was due to be put. Because of the nature of the matter of order I deemed it proper to delay the question for the adjournment until the matter of order was resolved.
There can be no doubt that, in accordance with practice, the time occupied by points of order up to 10.30 p.m. must be included in the one hour allowed for Senator Georges’ speech. However, as the time taken after 10.30 p.m. was outside the normal debating time and was for the purpose only of finalising the matter of order I think it is fair in all the circumstances, and after listening to Senator Cavanagh last night, to rule that Senator Georges’ time should be calculated to 10.30 p.m. On that basis Senator Georges has 14 more minutes before his time expires. I so rule.
– I seek leave of the Senate to make a statement relating to the conduct of the Senate.
– Is leave granted? There being no objection leave is granted.
- Mr President, apropos of the statement you have just made relating to the incident on Tuesday night I draw the attention of the Senate to standing order 447 which states:
Except so far as is expressly provided, these Standing Orders shall in no way restrict the mode in which the Senate may exercise and uphold its powers, privileges, and immunities.
I draw attention to the Hansard report of the proceedings of Tuesday, 12th September, which shows that at the conclusion of the debate during which Senator Georges was discharged from the chamber you stated:
Senator Georges, I suspend you from the service of the Senate. The Usher of the Black Rod will conduct you from the chamber.
I draw the attention of the Senate to the fact that this is a departure from normal procedure. Provision is made that when an honourable senator is suspended from the sitting of the Senate no amendment, adjournment or debate shall be allowed and such a motion shall be immediately put by the President. Standing order 441 points out that if an honourable senator is suspended, on the first occasion his suspension will be for the remainder of the day’s sitting. But standing order 332 states:
When a Senator has been suspended he shall not be permitted to enter the Chamber during the period of his suspension. If he does so enter the Chamber during such suspension, the President shall order the Usher of the Black Rod to remove him from the Chamber.
Standing order 444 states:
If any Senator shall wilfully disobey any Order of the Senate, he may be ordered to attend in his place, or, if he is under suspension, at the Bar, to answer for his conduct; and, unless his explanation be deemed satisfactory, the Senate may direct the Usher of the Black Rod to take such a Senator into custody.
My objection is that we are departing from the specific standing orders when the President orders the Usher of the Black Rod virtually to take into custody a senator who has been discharged from the services of the Senate. Not only are the services of the Usher of the Black Rod being enlarged, but also the authority of the Senate is being usurped with a ruling like that. I would like this matter to be explained.
– I will give consideration to the matter in the same terms as I gave consideration to the matter raised by Senator Cavanagh earlier and I will reply to the honourable senator.
– Mr President, may I make this point -
– To what are you addressing yourself?
– I am addressing myself to what Senator O’Byrne has stated.
– I seek leave to make a statement.
– Is leave granted?
– Leave not being granted,I am afraid that you cannot make a statement.
– IfI may, it is important because, if what Senator O’Byrne has stated is correct, I am still suspended. Am I or am I not still suspended?
– Order! Senator Georges you have sought leave to make a statement and leave has been refused. Therefore, you cannot address yourself to the matter.
Suspension of Standing Orders
– Mr President, because Senator Georges has requested that his status here be determined - whether he is still under suspension -I move:
– Mr President, of course the Leader of the Opposition (Senator Murphy) can adopt this course.I am just wondering whether the position is as Senator Georges says it is. What I am concerned about is that this is question time andI believe that we should proceed with the business of the Senate.
– You could easily do that if you give Senator Georges leave to make a statement.
– I want to make is perfectly clear that on this side usually the Leader of the Government calls yes or no when an honourable senator asks for leave to make a statement. But I recognise that the Standing Orders of the Senate provide that only one honourable senator need say no to refuse the request.
– Order! I wish to make it perfectly clear that Senator Georges is not still under suspension. That is perfectly clear.
– That is fair enough.
– Do you accept that, Senator Georges?
– I will withdraw the motion which I moved.
Motion - by leave - withdrawn.
– I present the following petition from 1 1 citizens of the Commonwealth.
To the Honourable the President and Members of the Senate in Parliament assembled. The petition of the undersigned citizens of the Commonwealth humbly showeth:
That the undersigned believe -
That hunger, illiteracy, abject poverty and injustice are intolerable anywhere in the world.
That the knowledge, skills and resources to change these unjust conditions now exist.
That to obtain justice among peoples, world financial and trading systems can and must be changed.
That Australia has the capacity to play a more significant part in enabling the developing countries to achieve improved social conditions for all their people.
Your petitioners most humbly pray that -
Australia’s Official Development Assistance in 1972-73 be increased to at least $240m.
Australia’s aid policies be reviewed so that aid given provides maximum benefit to the peoples of developing countries.
Australia’s trade policies be reviewed to provide more favourable conditions for developing countries.
And that the Senate refer this petition to the appropriate Standing Committees for inquiry and report.
And your petitioners, as in duty bound, will ever pray.
Petition received and read.
-I give notice that on the next day of siltingI shall move:
That, in accordance with the provisions of the Public Works Committee Act 1969-1972, the following proposed work be referred to the Parliamentary Standing Committee on Public Works for investigation and report: Construction of new outpatients clinic at Repatriation General Hospital, Greenslopes, Queensland.
– My question is addressed to Senator Rae in his capacity of Chairman of the Select Committee on Securities and Exchange. I preface it by reminding him and the Senate that on 19th March 1970 the Senate established the Select Committee to report to the Senate; that in September 1971 in a speech to the Senate I suggested that it was then time a prompt report was made to the Senate and that on 9th May this year, after using the expression ‘unconsionable delay’ to which Senator Rae took some exception, 1 requested that the report be brought down. I ask the Chairman of the Select Committee: Is it not a fact that following the asking of that question in the Senate he assured me that the report of the Committee would be brought down at least by September, that is, this month? Will he tell us the position - whether he intends before the expiration of this Parliament to bring down this report of a committee that was set up some 2i years ago and whether there is any truth in the suggestions that, for some reason or other, the report which was directed by the Senate to be produced to the Senate will not be presented to the Senate before the expiration of this Parliament?
– As Senator Rae is in charge of the business of the Senate Committee concerned, I call on him to reply.
– I find it somewhat difficult to reply to the last part of Senator Murphy’s question in which he asks whether there is any truth in rumours that the report will not be presented to the Senate as directed. Quite obviously this Senate Select Committee has been charged with the responsibility of conducting a very wide ranging inquiry, the terms of reference for which were drafted, I understand - they certainly were moved - by Senator Murphy, I presume with the full knowledge of the very wide ranging extent to which the inquiry would have to be undertaken. I do not know the rumours to which he is referring. Therefore I cannot comment on them. I can assure him and the Senate that the Committee’s report will be presented as soon as possible and that the Committee has continued to work diligently on the preparation of its report and the completion of its inquiry.
I suggest to Senator Murphy that the Committee’s report has not been delayed in any . way for any purpose, but there have been some times when less interference of a political party nature might have enabled the Committee to spend more time on the preparation of its report. I do wonder whether the report which appeared recently in one section of the Press is the report to which Senator Murphy made reference when he asked me whether some report which had been made recently was accurate. I can only say that there were numerous details which were inaccurate in that Press report.
The final point which I would make is that in assuring the Senate that the Committee’s report will be presented as soon as possible, I point out, as I did in May last, that this has been a very wide ranging inquiry in an area in which similar inquiries in other countries have taken several years to complete, lt is the first inquiry of its kind in Australia, at least since the 1939-45 War. It is an inquiry in an area of very rapidly changing types of activities. It is in an area in relation to which some difficulties were experienced by the Committee in obtaining the evidence which was necessary to enable it to report fully to the Senate in the way in which I have no doubt Senator Murphy and the remainder of the Senate would wish it to report.
I remind Senator Murphy that the Committee has already indicated in the statement which I made on 9th December 1971 that it will be recommending the setting up of a Commonwealth regulatory body to supervise the securities industry in Australia. I remind Senator Murphy that in an earlier statement, the date of which I do not recall, the then chairman, Senator Sir Magnus Cormack, reported to the Senate that the Committee had found widespread abuses existing within the industry. I take it that those 2 statements to the Senate constitute a form of report to the Senate in relation to the basic questions which have been raised. The full report required by the Senate is being produced and is receiving a very great deal of time and effort from the members of the Committee and its advisers. I cannot indicate, as Senator Murphy and other honourable senators would know, an exact timetable because these matters cannot run to an exact timetable.
(Senator Webster proceeding to address a question to the Attorney-General) -
– I am well aware of my ruling. 1 am waiting until the question is asked to determine whether I will allow it. Senator Webster, has your question any other parts?
– Yes, it has.
– I remind you that you must not use question time to give information, and you have been doing this.
– Undoubtedly that ruling will be applied to both sides of this chamber. I am asking a question of the Minister. I ask . . .
– Order! What is the question, senator? You have asked whether the Minister saw an interview.
– Yes. The second question that I asked was: ‘Did the Minister learn . . .?’ The third question that I ask is: . . .
– Order! I will not admit the question. It is ruled out of order.
– On a point of order, Mr President: If you rule my question out of order I will take a point of order on every question in similar context that is raised by the Opposition.
– Is that not a threat? You are good at threatening.
– And I carry out what I say.
– All right, at any time you like.
– Can the Minister representing the Minister for Primary Industry advise whether the Commonwealth has been concerned in discussions on the mercury content of fish and the ban arising therefrom which is proving to be a grave threat to the Victorian fishing industry? Will the Minister examine the situation in other fishing countries where the mercury content permitted is double that which is allowed in Victoria and discuss with the State action to relieve the grave effects of the ban on the Victorian fishing industry?
– The extent to which the Commonwealth has been involved in this matter is through a representative of the Department of Primary Industry chairing the Standing Committee of the Australian Fisheries Council which consists of Commonwealth and State representatives. No information other than that which came out of conferences has been given to Victoria to assist it in making up its mind about the decision that has been arrived at. The answer to the honourable senator’s question is that no information has been given to Victoria and that the Commonwealth is involved only to the extent of chairing the Standing Committee.
– I preface my question to the Minister representing the Minister for Immigration by referring to a minority report from the Senate Standing Committee on Social Environment on crime in which I advocated that passport control place greater emphasis on criminal than on political activity. In what circumstances was the principal of Ford Associates, a private inquiry agency in New South Wales under police surveillance, granted an Australian passport to avoid Australian legal processes? In view of past action by the Government in cancelling passports for political reasons, is Mr Ford to have his passport revoked as he has fled to England and is at present seeking sanctuary there?
– It would appear from the honourable senator’s question that it is based upon a report in today’s Sydney Morning Herald’ concerning one
Waverley Cecil Ford. I have some information from the Minister for Immigration regarding that report and I think it comprehends the question which has been asked. A passport was issued to this man in February of this year. The records of the Department of Immigration show that he departed from Australia on 30th May this year. The Department of Immigration has not at any time been informed by the police or by other authorities of any charges against Mr Ford.
– My question is directed to the Minister representing the Minister for Defence. Is it a fact that the Department of Supply is carrying out research on fragmentation bombs and similar devices designed to cause death and injury to persons rather than damage to real estate and machines? Are these bombs similar in type to those used by the United States forces in Vietnam against civilian populations?
– The honourable senator’s question involves technical as well as intricate defence matters, so I ask that it be put on notice.
– When manifests of VIP flights were tabled in the Senate recently the Minister for Air indicated that further manifests of VIP flights would be tabled. Can the Minister state when this will be done?
– I did indicate that I would put down further manifests for VIP flights from 1st July to 17th August. I indicated to Senator Milliner when he asked his question that 1 hoped to do so this week. I will be doing it later today.
– I direct my question to Senator Davidson, Chairman of the Senate Standing Committee on Education, Science and the Arts. I refer to the resolution of the Senate yesterday which referred to that Committee the question of the education of children in isolated areas. Speaking in the course of that debate Senator Davidson stated, as Chairman of the Committee, that there already was a heavy pro gramme before the Committee, including a major reference relating to broadcasting and television. I ask the honourable senator: In view of the need for urgent action in regard to the matter which was the subject of yesterday’s reference will he, as Chairman, suggest to the Committee for its consideration that that matter might receive some degree of prior consideration in its programme?
- Senator Davidson, as you are in charge of the business of the Senate in the context of a Senate Standing Committee, I call on you to answer Senator Byrne’s question.
– It is true that during the debate yesterday on this matter I indicated that the Senate Standing Committee on Education, Science and the Arts was in the midst of a very heavy assignment relating to all aspects of broadcasting and television. A moment’s reflection by honourable senators will cause them to realise that the words ‘all aspects’ indicate that this is a very widespread reference. The Standing Committee has been giving it a great deal of attention. I recall that I indicated also that I would lend my advocacy in persuading the Committee to undertake an early hearing of the matter which the Senate agreed to yesterday. Indeed, in furtherance of this reference, I raised this matter with the Committee at a meeting which was held this morning before the Senate met. I put forward the suggestion, purely as a personal point of view from my position as Chairman, that I thought it would be feasible for us to give this matter urgent attention when the Parliament re-assembled.
The matter of the Isolated Childrens Parents Association was dealt with in the Senate yesterday evening. As I recall it, in informal conversation about it at the meeting this morning there seemed to be considerable agreement on the question. No definite or official decision was made about the time when the matter to which Senator Byrne referred would be taken up. In reply to the honourable senator I would say that when the Committee next meets I will put to it in an official way and seek its general agreement for the matter to be interposed in the current inquiry relating to broadcasting and television. It occurs to me that an inquiry into the matter of education of isolated children is of considerable urgency. I also am of the view that if proper arrangements are made the hearing need not necessarily be a long and detailed one although we would need to take into account a variety of areas of discussion. I respond lo the honourable senator’s question by indicating to him that I will take up the matter with the Senate Standing Committee on Education, Science and the Arts and recommend to it that we intervene the reference so that it may receive early attention.
– 1 preface my question to the Attorney-General by drawing his attention to the answer given in another place yesterday by the Prime Minister to a question asked by Mr Donald Cameron about the use of laser beams. The question was whether the AttorneyGeneral’s permission would be given for the use of laser beams, as is required in the case of telephone tapping. The Attorney-General, in his reply to a question asked by me in this chamber yesterday, said:
My question is: In view of the answer given by the Prime Minister to a question about the use by the Australian Security Intelligence Organisation of laser beam eavesdropping techniques, and taking into account the Attorney-General’s answer to me yesterday, could I have a clarification of the issue? Could it not be inferred from the Prime Minister’s reply that laser beam devices are at least under consideration for use by ASIO? Will the Attorney-General reconcile the Prime Minister’s answer with his own answer to me yesterday?
– Order! Before 1 call the Attorney-General I remind honourable senators that their questions must seek information and must not give information. Senator O’Byrne’s question was expressed in far too lengthy terms to satisfy me as Presiding Officer.
- Senator O’Byrne’s question obviously was a mischievous one. In the first place it did nol state what the Prime Minister said yesterday. He was asked whether he would give consideration to certain matters. He ans wered quite simply that he would. There is absolutely no conflict between what he said and what I said. Attempts by the Press and Senator O’ Byrne to suggest that there is a need for reconciliation are mischievous because they ignore the plain meaning of words. Yesterday 1 said that the article which appeared in the paper and which suggested that the Australian Security Intelligence Organisation was using these devices was untrue. That statement stands. Nothing relating to this matter was asked of the Prime Minister. Therefore there is no need for reconciliation. I repeat the answer which I gave yesterday. I feel that any further questions on this matter are not in the national interest.
– Has the attention of of the Minister representing the Minister for Labour and National Service been drawn to an advertisement appearing in the West Australian’ headed ‘It’s Time for the Truth on Unemployment’? Can the Minister inform the Senate whether the figures quoted in the advertisement are accurate? The percentages are: Western Australia. 2.99-
– Order! I have already ruled that question time must not be used by honourable senators for the giving ot information.
– My question is whether the figures are accurate. The percentages are: Western Australia 2.99. South Australia 2.39, Tasmania 2.38. Queensland L.39; New South Wales 1.66 and Victoria 1 .65, with a national average of 1 .77.
– It is quite obvious from the sustained murmuring of complaint from the Opposition that there are no politics in this question. Senator Bonner’s recital of figures from the Press underlines the fact that 3 Labor governments in Australia have achieved the unique distinction of leading the field in unemployment. The figures for those 3 States are almost double the figures for the 3 States in which Liberal-Country Party governments are in office. Therefore it is quite reasonable for members of the Opposition to express themselves in murmurings designed to drown the significance of the ineptitude of Labor even in regard to such a matter as employment.
– I rise on a point of order. While the Minister was replying I heard the words ‘stupid’ and ‘senility’ in interjections from the Opposition benches. I object to these words. I suggest that they are unparliamentary when related to a Minister of the Crown.
– I must confess that 1 did not hear them. Apparently Senator Wright did not take offence at them.
– 1 wish to speak to the point of order. Now that my attention has been drawn to such a malicious piece of stupidity emanating from the Opposition, accusing me of senility, I ask for an immediate withdrawal. We do not want any advice of this nature.
– Order! I do not know who is supposed to have used those words. Senator Jessop, are yOU in a position to indicate to me who used them?
– J heard those words used by Senator Poke. I regard the use of them as being unparliamentary. They were offensive to me.
– I am sure that Senator Poke, now that his attention has been drawn lo this matter and the Senate has been alerted to it, will realise that although he may have thought he was speaking quietly he was in actual fact speaking too loudly for his words not to be picked up by the sinister microphone in front of him. 1 am wondering whether Senator Poke would care to reflect on what has been said.
– Mr President, to which words is Senator Jessop objecting?
– He has quoted them.
– Mr President, if Senator Jessop is entitled to take exception to the words that he claims were used, I suggest that I am equally entitled to take exception to the use of the word ‘stupidity’ used by Senator Wright to me. It would appear to me as though a stalemate has been reached. As Senator Wright and 1 come from the same Slate, perhaps we could have a quiet talk together somewhere round the corner outside the Senate chamber. Might we leave it on that level, Mr President?
– I think that would be appropriate, I would like to remind honourable senators of an expression I used earlier this morning. I said that we seemed to be slowly and remorselessly sliding into a particular situation. If I may change the metaphor, I would point out that in the United States of America the onset of the deer hunting season is described as buck fever. I think there is a lot of buck fever in the Senate at the present time.
– My question is directed to the Minister for Air. I ask: Has his attention been drawn to the publicity currently being given to the role of Fill aircraft in the Indian Ocean region? Can the Minister say whether any proposed operations are likely to involve a substantial deployment of the Fill aircraft available during the years 1973, 1974 and 1975? Will the operations be dependent upon any proposed airfield alteration, including possible extensions to the airfield on the Cocos (Keeling) Islands or the use of foreign bases? What is now calculated to be the range of this aircraft fully loaded and with external fuel tanks? Is in-flight refueling considered to be necessary for such aircraft?
– Let me say quite firmly that there are no plans to establish a permanent base on the Cocos (Keeling) Islands or to operate the Fill aircraft from there. The Cocos (Keeling) Islands are used as a staging base for maritime exercises. As I have said in the Senate before, when the upgrading of Learmonth is completed at the end of this year it will be able to take Fill aircraft. In the future such aircraft will operate staging exercises out of Learmonth, as will maritime surveillance aircraft. I would like to point out to Senator Bishop that when the Fill aircraft first arrive here - the first of them is due in May of next year - they will be stationed at Amberley, which will be their base. In regard to the range of these aircraft, I wish to say that the configuration of the aircraft and the external tanks mentioned by the honourable senator will more than meet the requirements of the Royal Australian Air Force. I cannot recall the last part of the honourable senator’s question.
– Is it proposed to use any foreign bases?
– The refueling of these aircraft is what I had in mind. There are no plans for the RAAF to buy tanker aircraft to refuel the Fill.
– I wish to ask the Minister representing the Acting Minister for Health a question regarding the current concern over the high mercury levels found in shark caught off the southern coast of Australia. Has any study been made of the source of the mercury content in these sharks? I am informed that such a study is well within known technology. If not, will the Minister take urgent steps to trace the source of that mercury with a view to invoking the principle supported by the Minister for the Environment, Aborigines and the Arts, that the polluter must pay?
– I am unaware whether any such research has been undertaken. Indeed, I am not sure whether knowledge of such research activities would necessarily come within the province of the Minister for Health. However, I will arrange for the honourable senator’s query to be addressed to the Acting Minister for Health. If necessary he can take up the matter with his colleagues whose responsibility it is and endeavour to ensure that information is supplied as soon as possible.
– Can the Minister representing the Minister for Shipping and Transport inform the Senate whether problems associated with the standardisation of the Adelaide-Port Pirie rail link have been overcome and when a start on this important project can be expected?
– My information on this subject is about a week old, but I think that it will be reasonably up to date for the purpose of answering this question. The Commonwealth and the State Government concerned, as I think the honourable senator would know, agreed to appoint Maunsell and Partners to prepare the plans and the estimates. A liaison committee con sisting of representatives of the State Government, consulting engineers and the Commonwealth was established to examine the various technical problems. I am told that most of the problems have been resolved and that Maunsell and Partners are proceeding with the preparation of their report. That may take a further month or two. When it has been prepared governments will need to consider it, how it can be ratified and from that point how they propose to proceed together towards implementation.
– I direct a question to the Minister representing the Minister for Labour and National Service. What are the reasons for the Government having failed to amend the War Service Land Settlement Scheme to allow preference to returned regular army servicemen and returned national servicemen who are desirous of making an application for dispossessed irrigation blocks in the fruit growing areas of South Australia? Will the Government take action to ensure that the dispossessed irrigation blocks under the existing Scheme are not allocated to persons other than exservicemen when an exserviceman is an applicant?
– This is a particular case and I am not fully informed on it, although I recall it being raised some time ago in the Senate. I would have to seek information on the question and I shall do so.
– I direct a question to the Minister representing the Minister for Labour and National Service. Is he alarmed by the prediction of the Victorian Chamber of the Manufactures that another 250,000 people could lose their jobs within the next year because of technological advances in industry? Will he state what steps the Department of Labour and National Service intends to take to combat the growing effect of automation on job availability or is the Government now reconciled to having a permanent hard core of unemployment of over 100,000?
– Prudence would dictate that only the last part of that question should be answered impromtu by saying that that comment is silly. The other part of the question contains a serious request for an account of the degree to which the technological change will displace human labour. That deserves a careful statement from the Department of Labour and National Service and the Minister. I will obtain that promptly.
– My question, which is directed to the Attorney-General, concerns the increasing incidence of violence, kidnapping and terrorism which culminated in the recent Munich horror. Since all countries, including Australia, are vulnerable to such anarchy, will the Minister consider convening a series of in-depth, confidential discussions between the various Australian governments and the law enforcement agencies - both civil and military - in order to achieve the maximum preventive measures and the fullest coordination of understanding and action so that in the event of such a challenge there would be a minimum of risk to innocent people, whether they be hostages or bystanders, and also a minimum possibility of success for the law breakers?
– I think that the honourable senator has very appropriately drawn attention to the implications of those who preach violence and are prepared to rely upon violence to achieve their ends. We in Australia have been relatively free of these problems but what happened at Munich indicates how tragically, and with what loss, violence can bring about within a community the divisions which breed further violence. In this country there has been a constant concern as to the propensity for violence of certain radical groups which have openly threatened to use violence and at the violent acts of some unions and unionists and the willingness to rely upon violence to achieve their ends. Of course, we are all conscious of what has occurred in certain places in recent limes. Allegations of violence or anticipated violence have always been investigated. The honourable senator asks whether I will consider in-depth studies and bring into the field of those discus sions all those responsible for law enforcement in various ways throughout the country.
I shall give consideration to the matter but I think I should say that in the forefront of the consideration is the recognition that at the present time there is a very effective and useful degree of co-ordination between the bodies responsible for law enforcement and protection of the community against the violence. I think it is always prudent to check that co-ordination is what we believe it to be. But fundamentally in this area 1 think that we rely less upon laws and law enforcement agencies than upon the total acceptance by responsible elements in the community that violence is not the means by which to achieve ends or resolve differences. If only we can have from all responsible people in this country a full and unqualified acceptance of that position, then I am sure the community will be the better for it. I trust that that will be the approach and the recognition -
– You improve your laws.
– If the honourable senator objects because he disagrees with what I say, let him get up and indicate that he is one who disagrees. I think it is fundamental that we accept the proposition that we will not be free of the fear of violence or of the consequences of violence unless there is a total acceptance by the community and a willingness on the part of responsible people in the community to work to that end.
– My question is directed to Senator Rae, again in his capacity as chairman of the Senate Select Committee on Securities and Exchange. I refer to his previous answer in which he suggested - I do not have the exact words - that some political interference had delayed the presentation of the report or that the report would have been presented earlier had it not been for some political interference. Will he tell the Senate by whom and in what manner the political interference has taken place and how this has delayed the presentation of the report?
– The words which I used were not quite as quoted by Senator Murphy and he knows the answer to the question. I am sure that the rest of the Senate is not concerned to have any further information about the matter.
– I ask the Minister representing the Minister for Primary Industry: In view of the announcement this morning that China is to buy $25m worth of wheat from the United States of America, will the Minister say whether any approach was made to Australia to supply this wheat?
– I saw the report in this morning’s newspaper but I cannot find out whether it is true; therefore I cannot give the honourable senator any information. I point out to him that the other day in relation to a similar question on the sale of wheat to China I said that the Chinese were very shrewd businessmen and that they would buy in the world market when they were ready to buy and when prices, freight rates and all other things were right. I also indicated to the Senate at that time that I had been informed that China was having a bad season in relation to its rice crop, that I believed China would be coming on the world markets for wheat and that I hoped Australia would receive an order for wheat. I shall seek some further information as soon as I can to see whether Australia had been approached in the first place.
– Senator TOWNLEY- I direct a question to the Minister representing the Minister for Shipping and Transport. No doubt the Minister is aware that the apple and pear industry has a conservative ship-side value to Tasmania of some SI 5m per annum and, that at the moment production is at a minimum necessary to sustain services and facilities, notably the reasonable export shipping programme to serve the potential markets. Is the Minister aware that many Tasmanians feel that the Commonwealth Government has chosen to ignore all Tasmania’s previous submissions in relation to the State’s dependence upon sea transport? Does the Minister realise that, if the apple and pear industry is allowed to fall any lower, it could well collapse totally? Will he attempt to have the Commonwealth
Goverment ease the burden of sea freight rates between Tasmania and this larger island?
– I am well aware of the great importance of the apple and pear industry to the State of Tasmania. I am quite conscious of that. I think that in the examination of the shipping freight question to which the honourable senator referred there are 2 facets to be considered. Shipping to the Australian mainland was regarded by the Senate standing committee as not being a service which could usefully be subsidised. It was thought that other remedies could be better applied, and the Senate agrees with the Committee. The question of export shipping freights is a matter for negotiation between the shippers of the Australian Apple and Pear Board. But nonetheless, having regard to the seriousness of the matter and its importance to Tasmania, I will refer the balance of the question and the request to the responsible Minister.
– I direct a question to Senator Rae in his capacity as Chairman of the Senate Select Committee on Securities and Exchange. I ask Senator Rae whether he will supply to me and the Senate information as to political interference, of which apparently he and Senator Murphy are aware, but of which I am completely ignorant. I take exception if the Committee has been impeded as a result of political interference.
– Order! I want to point out to honourable senators that it is only in recent times that the practice has developed of allowing questions to be directed to chairmen of committees. I have extended the practice because I believe that the Senate is entitled to inquire of chairmen of committees how far their committees have proceeded in the conduct of business which they are examining on behalf of the Senate. But I do not think that question time is the forum for crossexamining chairmen of committees. I would suggest that the Senate bear this in mind. Senator Rae may answer this question if he wishes, but that will be the last time I will allow a question to be asked on this matter.
– Mr President, I am of the opinion that the question is permitted under the Standing Orders.
– No, 1 said that the practice has developed.
– Yes, but if it is a right under Standing Orders, why do we not have the freedom to ask a question on a matter for which someone has responsibility?
– 1 did not rule your question out of order.
– I do not intend to supplement the answer which I have already given. I think that quite enough has been said on the subject and 1 do not intend to take it further at this stage.
- Mr President, I ask you whether, in the light of the very serious statement that was made by the Chairman of the Senate Select Committee on Securities and Exchange to the effect that there has been political interference which was delaying or had delayed the presentation of the report to the Senate, you will consider the implications of this matter for the Senate and report to the Senate what ought to be done in the light of such a statement?
– I would be grateful if honourable senators would leave the matter in the area Senator Murphy suggested for the time being.
– My question, which is directed to the Minister for Air, follows upon the one asked by Senator Bishop in respect of the Fill aircraft. Did I understand the Minister to say that the Royal Australian Air Force is not making any provision for in-flight refuelling facilities for the Fill? ls the Minister aware that the United States Air Force is providing extensive in-flight refuelling facilities for its F1 1 ls? Can he indicate the difference between the conditions in this country and the United States of America which do not require the RAAF to make available similar facilities in this country?
– When the RAAF issued an air staff requirement for a replacement for the Canberra bomber it set out certain requirements that it wanted manufacturers to meet should they desire to submit proposals. The company that manufactures the Fill submitted proposals, and when the RAAF and the Department of Air studied those proposals they believed that the configuration of the aircraft with external tanks would more than meet any requirement of the RAAF. Senator Wriedt cites the American situation. The American Air Force already has a tanker fleet and, as almost every aircraft in the American inventory has inflight refuelling equipment on it, it probably would be silly not to have such equipment on the Fill. If we decide in the future that we have a tanker requirement for our future fighter replacement aircraft, in lime we probably could include the FI 1 1 in an in-flight refuelling equipment programme. But at the present time we do not need inflight refuelling to meet the RAAF requirement.
– Is the AttorneyGeneral aware of the developing feelings of frustration and resentment in vast sections of the Croatian community at the unjust allegations being made against that community by representatives of the Yugoslav Embassy and other person:- of dubious antecedents who accuse them of terrorist activities in this country? Is there any truth in these allegations? If not, will the Attorney-General take appropriate steps to clear the good name and reputation of these people who have been subjected to such unfair allegations?
– I am aware of the many allegations that have been made and of the tendency, to which the use of the word ‘Croatian’ in the making of those allegations gives rise, for people to think that there is some link between Croatian people generally and acts of violence and terrorism. I think it is tremendously unfortunate that these allegations are made with such frequency, because this is creating a sense of frustration, opposition and resentment among members of the Croatian community who object most strongly to these allegations. I should say 2 things about the allegations that have been made. The first is that they have been investigated and the investigations have not revealed that there are the training camps and terrorist activities which so often are said by people, claiming some verification, actually to exist. In short, all the allegations are investigated and broadly they are found to be groundless.
The second point is that in recent times 1 have received many representations from members of the Croation community who are concerned. I have an accumulating body of evidence which is giving me the gravest concern that much is happening behind the scenes and is not being revealed; that there are agents provocateurs; that there are persons who are trouble makers; and that there are other people who are identifying themselves with the Croatian community with a view to causing trouble within that community. When this is linked with statements by representatives of the Government in Yugoslavia making allegations or repeating allegations which are unsustained and when it is linked with the treatment which is accorded to Australian citizens who have recently been to Yugoslavia, it is a matter which ought to concern all Australians.
I have, as I said, a growing body of evidence of persons who, having gone to Yugoslavia, have not been heard of; of one Australian citizen who has died there in circumstances not explained; of persons who have been unable to reach the Australian Embassy in Belgrade. These are matters of concern. I hope that, in due course, I will be able to provide more information than I have been able to provide at the present time with a view to indicating the truth of this matter, which is what Australians should have, not a constant repetition of allegations which on investigation prove to be groundless.
– The AttorneyGeneral will recall that some few weeks ago I asked him a question relating to the adequacy of the staffing of the Office of the Parliamentary Counsel. He on that occasion gave what I took to be something in the nature of an interim reply. I now ask the Attorney-General: Has he yet been able to examine the position in depth and to reach a point where useful information can be supplied to the Parliament on the reasons for the frequent, quite considerable delays in drafting work in the Office of the Parliamentary Counsel and to indicate ways to overcome the problem?
– The honourable senator’s question is one which requires a detailed and comprehensive reply. I shall look at the matter and provide him with that reply. Possibly this can be done in the course of discussions in the Senate Estimates Committees’ hearings. But if the honourable senator does not pursue it at that time, I will endeavour to obtain for him a full answer as soon as I can.
– 1 direct a question to the Minister representing the Minister for Shipping and Transport. Can the Minister give any reason why there has been such a long delay by the Bureau of Transport Economics in making its report on the advantages to be gained from using concrete sleepers or wood sleepers by the Commonwealth Railways on the track between Port Augusta and Port Pirie? Will the Minister make inquiries as to when the report will be made available to the Senate?
– I do not think the delay is an extremely long one. These reports do take time. I have had some experience in much earlier days of the relative merits of concrete sleepers and wood sleepers. This was when I was working in the early years of the last War. Senator McLaren has addressed a similar question to me. Only a couple of days ago, I signed a letter to him which gave some information on the subject. I will see that Senator Donald Cameron receives a copy of it and that his question is directed to the responsible Minister.
– In view of the announcement that Trans-Australia Airlines has installed sophisticated electronic computer equipment which will make dramatic improvements in the booking arrangements for air flights, accommodation, freight, etc, will the Minister for Civil Aviation inform the Senate whether he has developed the proposal to use this equipment for booking facilities for the passenger services of the Australian National Line?
– As would be remembered, Senator O’Byrne mentioned this matter earlier. I undertook to take it up. I have done so. The Department of Civil Aviation has said that it would be prepared to help if the the Department of Shipping and Transport felt that the Australian Coastal Shipping Commission could effectively make use of the equipment. I will seek from the responsible Minister the state of play in the matter.
– How does the Attorney-General reconcile the views that he has expressed in his answer to Senator Hannan on Yugoslav affairs with the action of his Government in refusing to return to Mr Strecko Rover his passport to proceed abroad? Secondly, does he say that in the welter of material that his officers have, nothing has been put forward bv moderate Slovene and other sections of the Yugoslav community involving anything about terrorism from the rightists of the Croatian clement?
– The Minister for Immigration has said on numerous occasions that the reason why Mr Rover’s passport was withdrawn while he was in Canada was that it was not in the national interest for him to be able to travel under an Australian passport. The Minister declined to elaborate on that, as is his right. On the other aspect of the honourable senator’s question. I am concerned where allegations are made to have those allegations investigated and to establish whether they are true or false. As I have said, there have been many allegations and those allegations have been investigated. Also, as 1 have said broadly, they have been groundless. The honourable senator will recall that during the parliamentary recess 1 issued a very long Press statement in which I detailed a number of allegations which had been made, the investigations which had been undertaken and the fact that the investigations had not revealed any substance in what was said. In the case of a certain person who had made many allegations and who claimed that he had material and documents to substantiate them, he was unable to give any substantiation when asked by the police to do so. That is part ot the record.
It is true that there have been incidents in the past in which individual persons of Yugoslav background have been in possession of explosives. It is true also that Croatians have been injured in this country or that there has been an attempt to hurt them, and it is also a fact that persons who traditionally are opposed to the Croatians also have been hurt in this country. The Yugoslav Consulate offices have been the subject of bomb attacks. All of that is fact. What I have said in reply to Senator Hannan I confirm without repeating it. These matters will be investigated. I have an accumulating mass of material which suggests that all that has been stated openly does not appear to represent the whole story. Much is going on behind the scenes which I am endeavouring as best I can to have investigated.
– Does the Minister representing the Minister for Foreign Affairs not agree that there is universal revulsion in this country, as in others, to the racist actions of the Government of Uganda and, in particular, the most recently reported statements of General Amin, the President of that country? Will the Government bear this in mind in any future discussions with other members of the Commonwealth of Nations and consider the possibility of moving to have Uganda removed from the Commonwealth of Nations if it continues with its present policies?
– I hesitate to subscribe to the expressions that Senator Wheeldon has used in this respect. It is an incident of intense regret. Australia, through the Minister for Immigration, has made its position plain that on its ordinary basis of admission, applicants among the expellees who come within the criteria that have been applied for entrance to Australia-
– That is not the question. You had better ask it again.
– Order? The Minister is not to be instructed by an intervention from Senator Georges or anyone else when he is replying to the question.
– I was saying as to the immigration aspects that they have been outlined by my colleague the Minister for Immigration.I have expressed the basis of them. I was about to add that the Department of Foreign Affairs has constantly kept itself informed of any concern about this incident expressed in international agencies, particularly the United Nations, and the Australian Government is keeping itself receptive to any action taken there. The Government is ready to consider this incident in a special sense if representations are based on humanitarian grounds.
-I wish to ask a supplementary question of the Minister representing the Minister for Foreign Affairs.I appreciate the answer just given by the Minister but I did not ask a question relating to Australia receiving refugees from Uganda. I was not concerned with that problem. My problem was the general conduct of the Government of Uganda which I believe, as many others believe, is completely out of keeping with the principles to which we would hope that the Commonwealth of Nations would subscribe. My question was whether the Australian Government would either move for or support any proposal that Uganda be removed from the Commonwealth of Nations if it continues its present policies and activities, irrespective of what the United Nations may do and irrespective of what may happen to the unfortunate refugees from that country.
– In giving answers to questions relating to the Foreign Affairs portfolio I choose my words with a little care and deliberation. It will be remembered that I referred not only to the United Nations but also to international agencies. I want to make it clear that I failed to respond in answering a question without notice as to whether the Government would give support to or initiate any action of condemnation with regard to the Government of Uganda, but to the percipient I did indicate that the Government was alert and ready to respond if proposals with regard to this experience were based upon humanitarian grounds. I suggest that that answer be given a little further consideration before impulsive criticism is expressed.
– It needs a lot of understanding.
– Yes, it needs a little understanding, I know.
– My question, addressed to the Minister representing the Minister for Foreign Affairs, relates to a somewhat similar aspect of the matter raided by Senator Wheeldon. Will the Australian Government consider raising in the United Nations the clearly racialist actions of the Government of Uganda, and will it endeavour to ensure that the Asian residents of Uganda who are being expelled will be permitted to take with them their possessions and funds? Is the present expropriation of the belongings and assets of these people a clear infringement of basic human rights?
– I refrain from any expression of my opinion on Uganda’s contravention of the principles of basic human rights. I would think that probably, as a matter of individual inference, there would be a unanimous reply on the part of all honourable senators. I am obliged to the honourable senator for stimulating me to suggest to the Minister for Foreign Affairs that action should be taken in certain quarters.I shall refer that to the Minister for his usual careful and responsible consideration.
– I direct my question to the Minister for Air. Yesterday I asked him a question about the number of journalists accompanying the Minister for External Territories to the CocosIslands, and how many of the 26 seats would be vacant. In his answer the Minister for Air did not provide this information.I now ask how many of the seats will be vacant on this trip?
– The particular aircraft to which the honourable senator referred takes 26 passengers. There will be 7 passengers plus 4 other people from the media, a total of 11, so the result of subtracting 11 from 26 will provide the number of vacant seats.
(Senator Durack proceeding to address a question to Senator Rae in his capacity as Chairman of the Senate Select Committee on Securities and Exchange)
– Order! I do not want to deprive the honourable senator of an opportunity to ask a question, but earlier I said that I hoped that no more questions would be addressed to the Chairman of the Senate Select Committee on Securities and Exchange. I suggested that I should take an opportunity to discuss the matter with the Chairman of the Committee. This suggestion seemed to find general acceptance in the Senate. If the honourable senator intended to re-open the matter which I asked earlier be not opened, I would be grateful if he withdrew the question.
– I accept your ruling. I simply ask whether the matter can be clarified or ventilated at a later hour this day.
– Under the forms of the Senate this can be done.
– I ask the Chairman of the Senate Standing Committee on Social Environment whether he can inform the Parliament of the action which the Committee proposes to take in its investigation of the Postmaster-General’s Department’s installations on Black Mountain in the Australian Capital Territory. Can he inform the Parliament whether further inspections will be carried out by his Committee and whether witnesses will be examined?
– An inspection of the site of the proposed telecommunications tower on Black Mountain will be made today fortnight if we can arrange it for that time. It has not been decided whether evidence will be taken after that.
– I ask a question of the Minister representing the Acting Minister for Health. Doubtless the Minister is aware that his colleague the Minister for Customs and Excise has agreed that many of the drug running activities in Australia go undetected and that many drug takers are often forced to push drugs to pay for their own expensive habit. Therefore I ask the Minister: In this country what treatment is available, apart from imprisonment, for those convicted of drug taking?
Is any treatment available without prosecution for those who request it? What action is the Government taking on a national scale to adopt something like the British method of rehabilitating drug users by supplying certain drugs free to addicts so that drug pushers have a more difficult job?
– Order! Senator Townley, I think this question probably comes within the ambit of a question addressed to a Minister who is not responsible for the policy of a department. I mention that in passing so that we do not get involved in it again. I call Senator Greenwood.
– I have, as all Ministers have, files from which I can, if I am lucky enough to have the appropriate question asked, draw material. On other occasions I can anticipate the sort of questions which are likely to be asked. I am certainly aware of the views of my colleague the Minister for Customs and Excise in regard to undetected drug running in Australia and to the fact that some drug takers have to resort to pushing drugs in order to pay for their own habit. There are treatment facilities for all drug addicts in all States. The treatment facilities sometimes are in separate institutions or may otherwise be obtained as part of the general treatment available at mental health facilities. Treatment is available to drug users without prosecution provided the persons come forward and seek treatment voluntarily. At a national level the British method of rehabilitating drug users is being studied by Commonwealth officers. In New South Wales a private study is being conducted in methadone maintenance therapy, which is one of the methods used in Great Britain.
– I wish to ask a supplementary question of the AttorneyGeneral about Mr Strecko Rover. Am I at liberty to interpret the words ‘national interest’ that the Attorney-General used in his earlier answer to me to mean that the Government is seeking to damp the actions of agents provocateurs from the right of the Croatian community?
– I am at a loss to understand precisely what the honourable senator is asking. It may be that the inferences I would draw from those words are not those that he would draw from them. The Minister stated that it was not in the national interest for Mr Rover’s passport to continue to be held by him. The Minister also indicated, as I recall, that he would elaborate on that further. As to the suggestion that Mr Rover is not what he appears to be - I do not know whether that is what the honourable senator is suggesting - I do not feel that I can take the matter any further than I have taken it.
– Mr President, I seek your guidance as to the Minister to which I should direct the following question: Has the Minister seen the photograph on page 18 of today’s ‘Canberra Times’ depicting fashion models? If so, has he noticed that one model is carrying what appears to be a revolver? Will the Minister draw to the attention of those responsible for this photograph that clothes and not guns maketh the man?
– We do not have a Minister for sundry matters.
– I will quite happily take responsibility for answering any question relating to modelling, Mr President. No doubt you have noticed the great number of volunteers to answer this question. It seems to me that it could relate to the portfolio of Customs and Excise. Most questions relating to guns fall into that category. A question about modelling also could be directed at the Minister in Charge of Tourist Activities, whom I also represent in this chamber. The honourable senator did not say whether the photograph depicted a female gun carrying model or a male gun carrying model. In the circumstances, I shall look at the picture with great interest and talk to the responsible Minister about it.
– Mr President, I seek leave to make a very brief statement in amplification of an answer I gave earlier.
– Mr President, it would be a little awkward if Senator Rae were allowed to do so. 1 asked a point blank question of Senator Rae earlier and he refused to answer it. You. have ruled, Sir, that you wish to consider the implications of the very serious statement that was made by the Chairman. It may be that Senator Rae proposes in some way to withdraw his statement.
– I should be grateful if you would not canvas that aspect. I should also be grateful, Senator Rae, if you would be obedient to what I have already stated. As soon as question time is over, I would like to discuss the matter with you if you are agreeable. I am sure the Senate would then give you leave to make a statement if you wished to make one.
– Sir, there are reasons why I would prefer to make the statement immediately, if possible. It is to be, to an extent, of the nature to that to which Senator Murphy referred a moment ago. It is in an attempt to clarify a misunderstanding that I wish to take the opportunity to speak at this stage.
– I wish to be advised on this matter by the Acting Leader of the Government in the Senate.
– During the course of question time 4 questions were directed at Senator Rae and 2 of those questions were answered. The Leader of the Opposition asked 2 questions. Senator Cavanagh asked a question . which was not answered, and Senator Durack asked a question. Senator Murphy then suggested to you, Sir, that you should discuss this matter with Senator Rae.
– No; make a statement to the Senate on the implications to the Senate of what he said.
– Let me finish. Senator Murphy suggested that you should discuss this matter with Senator Rae and then make a statement, Sir, about it if you think it is fitting for you to do so. Senator Rae has now risen in his place and sought leave to make a statement. While I think that you have taken the right attitude, I believe that Senator Rae is trying to clarify an answer that he gave. Quite often Ministers rise in their places towards the end of question time and elaborate on or give further information in answer to a question. I have the feeling that this is what Senator Rae is endeavouring to do. I do not think that it conflicts with the proposal that Senator Murphy has put to you, Sir.
– On the basis that Senator Rae wishes leave of the Chair to make a statement in clarification of an earlier answer, I call Senator Rae.
– I now have a copy of what 1 said earlier. I said:
I suggest to Senator Murphy that the Committee’s report has not been delayed in any way for any purpose, but there have been some times when perhaps less interference of a political party nature may have enabled the Committee to spend more time on the preparation of its report.
I wish to say in amplification of that answer which I gave that notwithstanding the suggestions which have been made by Senator Murphy for what I might describe as ‘instant reporting’, the Committee has continued to work with a commendable cohesiveness and co-operation in the unanimous desire to preserve the integrity both of the Committee and of its report. I wish to emphasise that what 1 said earlier -
– What is the party political interference?
– I have already suggested that Senator Murphy has a number of times made it quite clear he thinks that the Committee should engage in instant reporting. That was the matter to which I referred.
– With the concurrence of honourable senators, we will now deal with answers to questions upon notice.
– In view of what has been said by Senator Rae by leave of the Senate, I would ask for leave to make a statement because his answer does not merely explain his own position. He has made some statement in relation to me.
– I have called for answers to questions upon notice. We will have the answers and then I shall call you to make your statement by leave.
(Questions upon notice and the answers thereto are published at the end of the day’s proceedings).
By the indulgence of the Senate, a Senator may explain matters of a personal nature, although there be no Questions before the Senate; but such matters may not be debated.
– I am aware of that.
– I wish to refer to what was stated by the Chairman of Senate Select Committee on Securities and Exchange.
– Do you seek leave to make a statement?
– Yes, I ask for leave to make a statement.
– Is leave granted? There being no objection, leave is granted.
– On 19th March 1970 I moved a motion in the Senate for the establishment of the Senate Select Committee on Securities and Exchange. My recollection is that that motion was adopted unanimously. It was for an inquiry and a report by the Committee. Broadly, the terms were to report on the desirability and feasibility of establishing a securities and exchange commission in Australia. Obviously the Committee had to consider certain matters under the question of desirability. Under the question of feasibility there was the constitutional matter which concerned Commonwealth power over corporations. In most minds that question was resolved by the decision of the High Court in what is known as the concrete pipes case in 1971. In September 1971, after the report of the judgment of the High Court had been given, during a debate on the Trade Practices Act which is reported at page 476 of Hansard, I said:
It is generally accepted that the decision of the High Court has removed the main doubt about the legal feasibility of establishing a Commonwealth securities and exchange commission. On 19th March 1970 on my motion the Senate established a select committee to be called the Securities and Exchange Committee to inquire into and report upon the desirability and feasibility of establishing a securities and exchange commission. The work that has been done by that Committee, so far as we have observed through the Press and television media, has no doubt been extremely valuable in dealing with the desirability of such a commission. 1 have no doubt that the Committee was wise to await the judgment of the High Court in the concrete pipes case before reporting to the Senate. It was generally anticipated, and has proved to be the case, that the judgment would be of very great significance on the question of the Commonwealth power in respect of corporations and the prospective establishment of a securities and exchange commission. It is generally agreed that the main doubt about the feasibility has been removed by the decision of the High Court and I believe it would be in the national interest for the Committee to bring down a prompt report to the Senate, even if only of an interim nature, giving its recommendations on the desirability and feasibility of establishing a securities and exchange commission.
I am concerned that, however valuable the work of the Committee may be, delay in submitting ils report will mean delay in the introduction of legislation to establish a securities and exchange commission. Whatever might be the result of the Committee’s deliberations, I think we are now entitled at least to an interim report, whit-h is open to be made by the Committee, as is clear from paragraph 4 of its chaner. The Committee was given leave to report its proceedings from time to time and the evidence taken and such recommendations as it deemed fit. I have no doubt that the work of the Committee has been and will continue to be extremely valuable to the community. The work remaining to be done could bc done by the Committee or another committee. In the national interest a report should be made as promptly as possible by the Committee.
On 9th May 1972 after somebody had referred to unconscionable delay in another respect I said:
While we are on the subject of unconscionable delay, 1 direct a question to Senator Rae in his capacity as Chairman of the Senate Select Committee on Securities and Exchange. Is it correct thai the motion for the appointment of the Select Committee, which 1 moved, was carried over 2 years ago Does the honourable senator recall that about 9 months ago I suggested to him that it was time that the report was presented? As I recall it, he indicated that he was conscious of -the feeling of the Senate that it was time that the report was presented. Will he tell us now, if he is able to do so, when the Senate may expect the report of this important Committee lo be presented?
Senator Rae answered: ‘I take exception to the words “unconscionable”.’ The honourable senator went on to say that the Committee had been doing all sorts of work. It was an extremely lengthy answer. He said that the report would be presented as soon as possible. I ask for leave to incorporate in Hansard, in fairness to the honourable senator, the whole of his answer given on 9lh May 1972.
– Mr President, in view of your ruling the other day 1 ask you to have a look at it.
– It is from Hansard.
– Is leave granted? There being no objection, leave is granted. (The document read as follows) -
– I lake exception to the words unconscionable delay’ in the introduction to the honourable senator’s question. The answer to the question, stated briefly, is that the report of the Select Committee on Securities and Exchange will be presented as soon as possible. I can assure you. Mr President, and the Senate that a great deal t.i work - voluntary work, paid work by persons other than Committee members, and work by Committee members - has been going on constantly. That work began shortly after (he Committee was set up and shortly after the motion to refer very wide terms of reference to the Committee was carried. Although the Committee has completed public hearings and has made a report to the Senate by way of a statement in December last year, it has been continuing to undertake a number of inquiries which were necessary for the purposes of the preparation of the report. It has received a vast quantity of documentary evidence which it has been necessary to assess for the purposes of the report. The matters related to the areas covered in the public inquiry.
Through you, Mr President, 1 point out to Senator Murphy a fact which perhaps he has overlooked. There has never been a public inquiry into die very broad areas - I emphasise this - which were referred to the Committee by the Senate on the motion of Senator Murphy. Certainly in Australia there has been virtually no inquiry into these areas since 1945. Under its terms of reference the Committee was bound to raise a very wide area of issues in which there have been vast changes. It does take a considerable time lo prepare a report on such a broad field. Perhaps Senator Murphy, due to lack of experience or for some other reason, is not aware that to prepare a report on such a broad spectrum as that covered by the terms of reference does involve a great deal of research and compilation work. I take one aspect alone. In Australia there has never been an inquiry into brokers’ accounts. The Committee received 5 years brokers’ accounts. That alone is a major task of analysis. There was no prior information as to brokers’ finances, earnings, capital structure and all the other matters involved.
In every other country in which such an inquiry has been undertaken, many single areas of investigation alone have taken longer than this Committee has taken so far. For instance, in the United Stales of America the Securities and Exchange Commission started an inquiry more than 2 years ago on one aspect alone - that of brokers’ rates. Only now is the policy arising from that inquiry coming forward. I could go on by way of explanation. The question was raised in what I regard as an offensive manner and I have replied at greater length than I might have done had it not been framed in this way.
– Following that question and answer in this place, the Chairman of the Committee called upon me and said that he wanted to explain what the position was. He said something about the work which was being done. He said there was some detailed work. He gave the assurance, which I mentioned this morning and which he has not disputed, that the report would be presented in September of this year.
– I would be quite certain that is not accurate.
– Senator Rae now interjects. It is curious that he did not interject this morning or deny it this morning.
– Mr President, I raise a point of order. It has been the practice in this place over the years that when the Leader of the Opposition has asked for leave to make a statement, generally he has been given leave to make a statement. Senator Murphy directed a question to you, Mr President, during question time. He asked you whether you would have discussions with the Chairman of the Committee and then, should you think fit, make a statement to the Senate. I take it that when that statement is made there will be a debate on it. Senator Murphy is canvassing a wide area now, and unless leave is given to honourable senators on the Government side to make a statement, no-one will be able to answer Senator Murphy’s statement.
– Are members of the Committee allowed to speak for themselves?
– No-one will be allowed to speak. If Senator Murphy believed that this is such an urgent matter, he had the right to use the forms of the Senate much earlier today.
– Or later if he wished.
– Or later. Although I granted the Leader of the Opposition leave to make a statement, I did not expect the statement to continue for half an hour or longer, with no right of reply being given to honourable senators on the Government side. I am raising a point of order with you, Sir, and I hope that the Leader of the Opposition will conclude his statement as quickly as possible.
– Of course, what has happened here is that in view of the serious nature of what Senator Rae had put, I asked you, Mr President, to make report to the Senate on the implications of what Senator Rae said and I was prepared to leave it at that. Senator Rae insisted upon being given leave to make a statement clarifying what he said, and the Acting Leader of the Government in the Senate (Senator Drake-Brockman) wanted him to be able to make the statement. So the position has changed.
– It has absolutely changed, and I rescind any undertaking I gave earlier as a result of the changed circumstances.
– An assurance was given that the report would be made in September.
– Senator, do you mean the whole report or one of the interim reports?
– I understood the whole report. One reads in the newspapers - it is not the first time it has been said - that there has been pressure. There was a report in the ‘National Times’ about pressures mounting ‘but Rae report unlikely soon’. There have been suggestions at various times in the newspapers of this land that political influence has been exerted upon the Chairman of the Committee not to present a report. My question this morning was directed to the Chairman of the Committee. I asked him when he was going to produce the report. The suggestion has been made - I repudiate it in every way - that the delay has come from the Opposition side of the chamber, that action by the Opposition has had the effect of delaying the report. That is absolute nonsense. In September of last year, in May of this year and again today we have pressed for the report to be presented to the Parliament.
The words ‘as soon as possible’ which have been used can mean only as soon as possible within the life of this Parliament. No-one could possibly suggest that he should be given permission not to present a report before the Parliament expires, after 2i years. I do not mind if the Chairman of the Committee or someone else says that some details of the report have to be considered. That can be understood. If a simple explanation is made, in which it is said that there are all sorts of technical matters which cannot now be presented, that is understandable. But to endeavour to suggest, as the Chairman of the Committee did, that in some way those who are pressing for the presentation of the report-
– I said that it had not been delayed in any way for any purpose.
– Then, do I understand that the Chairman of the Committee is now saying that he withdraws entirely his suggestion that there has been political interference from this side of the chamber which has had the effect of delaying the report? If that is the position then I am content. All I say on my own behalf, on behalf of this Party and, I think, in the national interest, is that the best that can be done by this Committee ought to be done and the report ought to be presented to the Senate before the Parliament rises.
– 1 know that I sought leave previously; but 1 did not seek leave to make a speech. 1 made a short explanation. I now seek leave to reply to Senator Murphy.
– Is leave granted? There being no objection, leave is granted.
Senator RAE (Tasmania) - I repeat for Senator Murphy’s benefit and for the benefit of other honourable senators what I said in answer to the question. I quote it from the Hansard typescript, which I have before me:
I suggest to Senator Murphy that the Committee’s report has not been delayed in any way for any purpose, but there have been some times when less interference of a political party nature may have- enabled the Committee to spend more time on the preparation of its report.
Quite obviously, Senator Murphy is totally inexperienced in what is involved in the preparation of a complicated committee report. He is very experienced in moving for wide ranging inquiries to be undertaken by Senate committees, but he is not particularly experienced in participating in the work that is involved in them.
– I have been on more committees than you have.
– I am quite prepared to put my sitting days and committee reports against Senator Murphy’s any day. What is involved here is the consideration of the nature of the report that is to be presented. For Senator Murphy to suggest, as he did,
I believe the day after the judgment in the Rocla Pipes case was given, that an instant report should be-
– I have never used the word ‘instant.’ I have asked for a prompt report.
– 1 use the phrase ‘instant report’ because it is typical of the sort of approach Senator Murphy adopts to matters of great political importance which require proper and full consideration rather than the sort of consideration that is apparent when we listen to some of the things that are suggested. I suggest that this was a typical example of that. What was requested from members of the Committee was that they abdicate entirely the responsibility given to them by the Senate to prepare a full, studied report covering the areas in the terms of reference, which I will now read out in greater detail than did Senator Murphy. He conveniently omitted some of the areas. The terms of reference were: . . to inquire into and report upon the desirability and feasibility of establishing a securities and exchange commission either alone or in cooperation with the States and the powers and functions necessary for such a commission to enable it to act speedily and efficiently against manipulation of prices, insider trading and such other improper or injurious practices as the Committee finds have occurred or may occur . . .
Senator Murphy was responsible for the preparation of those terms of reference. They involve the Committee not only in reporting a yes or no answer to the fundamental question but in going on to say what are the powers and functions necessary for such a commission to enable it to act speedily and efficiently against a variety of practices and abuses which may have been taking place in the securities industry in Australia. For anyone to think that, because a judgment of the High Court is given one day, the next day a committee can prepare an instant report covering all these matters is ludicrous.
– The implications of that judgment are not known generally even now.
– I thank Senator Byrne. To say that a committee should bring down recommendations with some detail but leaving out all the supporting evidence surely would result in the committee producing something of little value either to the
Senate or to the Government. The point of Senator Murphy’s question to me last September and the point of his argument today is that the Committee will delay the introduction of legislation by delaying the production of its report. But I ask: How is the Government to legislate in relation to such a comprehensive area and such an important area, if it has no report covering the detail of what are the practices, functions and powers of the commission?
I remind Senator Murphy that, in relation to the fundamental questions asked of the Committee, I have indicated already today that a report has been presented to the Senate in which the Committee has said that it is unanimously of the view that there should be a securities and exchange commission. The words used were ‘a Commonwealth regulatory body’ although the terms of reference sought a securities and exchange commission. The Committee said that there should be such a body. It had found that there were abuses. Various types of improper practices were taking place. I would have thought that was exactly what Senator Murphy asked for, if he wanted something by way of a very limited report. That report was given in December last year. He made no reference to it when he spoke earlier this day. I simply draw attention to the fact that he was not altogether full in giving his sequence of the events, because he did omit the May statement, he did omit the December statement and he did omit part of the answers to questions.
I continue simply to indicate that this Committee has worked extremely well. I am proud to have been a member of this Committee. I am proud to have been able to participate in the work that it has done. I hope that when it can present a report I will be equally proud of the report that it presents. I look forward to the Committee being able to continue to do the work it set out to do and which it has done with cohesiveness and co-operation, without being sniped at from the sidelines by Senator Murphy.
Sitting suspended from 12.48 to 2.15 p.m.
– Pursuant to section 33 of the Australian National University Act 1946- 1971, I present the report of the Council of the Australian National University for the year ended 31st December 1971.
– This matter was referred to on an earlier occasion when it was suggested that an opportunity should be given to debate the report. I propose to move that we take note of the report so that we may debate it at some later stage. It is not my suggestion that we should debate it now. I move:
I do not wish to engage in any debate on the matter now, but 4 members ofthe Parliament are on that Council, 2 of them being from the Senate. There are some important matters that I would like to have discussed and this report may provide an appropriate vehicle for this.
– Ask for leave to continue your remarks and leave will readily be given.
– I thank the Minister. That is exactly what I proposed to do, if the Minister will contain himself. I hope that on some future occasion we will have an opportunity to discuss the contents of the report and to raise some extremely important matters which have been discussed by the Council of the Australian National University with a view to their being raised here. I ask for leave to continue my remarks.
Leave granted; debate adjourned.
– For the information of honourable senators I present the interim annual report of the Director of War Service Homes for the year ended 30th June 1972. When the final report is available I shall present it in accordance with the statutory requirements.
– Is Government Business, Notice of Motion No. 2 in the name of Senator Wright, formal or not formal?
– 1 move:
That, in accordance with the Provisions of the Public Works Committee Act 1969-1972, the following proposed work be referred to the Parliamentary Standing Committee on Public Works for investigation and report. . . .
Construction of new patients’ residential building and staff accommodation at Kingshome Rehabi li tati on Centre, Taringa, Queensland.
The proposed work comprises the construction of a 5-storey residential building for patients and a 2-storey building erected over the lower floor structure of the existing building to accommodate live-in staff. The estimated cost of the proposed work is SI. 8m. ! table plans of the proposed work.
Question resolved in the, affirmative.
– Is it desired to rearrange the business of the Senate?
– I move:
It is normal practice on Thursdays at this time for the Senate to move on to a discussion of reports of standing committees. Today the order of the day due to be discussed relates to a consideration of the report of the Senate Select Committee on Off-shore Petroleum Resources. After a discussion of that order of the day it would be normal to move on to order of the day Nos 2. 3 and so on until we had completed a discussion of the orders of the day. I have proposed my motion because 1 believe that Government Business, Order of the Day No. 1, dealing with the Ordinances and Regulations (Notification) Bill 1972 is of an urgent nature. T believe that it is necessary to use the procedure I have adopted to bring this matter on for debate.
While I have been Acting Leader of the Government it has been my normal practice to make out a plan of the day in line with Government Business that is required to be dealt with and to discuss that plan with the Leader of the Opposition (Senator
Murphy) and the Leader of the Democratic Labor Party (Senator Gair). During this time 1 have received a great deal of cooperation from the 2 leaders in bringing business before the Senate. When discussing this matter this morning I said that I thought this Government Business was of an urgent nature. I hope the Leader of the Opposition will not mind my saying that he did not see the urgency of the matter, as a. result of which we could not arrive at a decision on how we should proceed with business during the day. I have used this procedure as a means of bringing this Government Business before the Senate immediately instead of after the debate on the Committee’s report.
Yesterday 1 proposed a motion for the Senate to sit for extended hours. That motion, when carried, required the Senate to meet at 10 a.m. today. However, during the course of the day, some honourable senators from both sides of the chamber asked me whether there was any real urgency for the Senate to meet at 10 a,m. instead of the usual 1 1 a.m. I discussed the matter with some of my ministerial colleagues and we decided that there was no real urgency to warrant our sitting at 10 a.m. today rather than 11 a.m. In fact the Attorney-General (Senator Greenwood), who is in charge of the Bill which it is proposed that the Senate should now deal with, said that the additional hour would give honourable senators extra time in which to study the legislation in depth. For this reason the Senate met at 11 a.m. instead of 10 a.m. as was decided yesterday. I believe that this has given all honourable senators time to study the Bill about which we were speaking last night.
This is a vital piece of legislation which affects very many people. It is a view of the Government that a delay in passing the legislation would prejudice the rights of all people who have cases listed for hearing in the Australian Capita] Territory Court of Petty Sessions. There are several matters which cannot be determined until this legislation has been passed. The Australian Capital Territory Court of Petty Sessions is not dealing with any matters today and all matters which had been listed for today have been adjourned until tomorrow. In the Supreme Court, 2 pleas in criminal matters that were listed before Mr Justice
Fox have been adjourned. A claim for civil damages before Mr Justice Franki in the Supreme Court was adjourned until 11.30 this morning to enable settlement negotiations between the parties to take place. These matters cannot go on until this legislation is passed. I believe that there are a number of cases like that before the courts here and in the Northern Territory which should be dealt with but cannot be dealt with. I believe it is urgent for the Senate to go on with this legislation. That is why I moved this motion.
– Mr President, the rights of the people and the rights of the Parliament become eroded little by little. As T. S. Eliot put it, you die not with a bang but with a whimper. The rights that we think are important are being dealt with in a shabby way, not in the interests of this Liberal-Country Party Government, not in the interests of good government and not in the interests of the nation. They are being dealt with in this way because of some panic, some hysterical reaction which I believe is not helping this Government, even in its party political interests or in its election prospects. To me what the Government is doing is not only wrong; it is clearly electorally foolish. By that I do not mean that it will lose a great deal by what it is doing or that necessarily it will lose anything, but if it had approached this issue in a somewhat different way it may have gained a great deal. The Government has not chosen to do that and I think it has been extremely foolish. However, that is not the main issue before us.
The Acting Leader of the Government, the Minister for Air (Senator DrakeBrockman), said quite fairly that there were three or four cases before the Supreme Court of the Australian Capital Territory and that one or two of them cannot go ahead today. The Court has stopped hearing them and they may not go ahead on Monday. He said also that some settlements were being considered and that maybe the same kind of thing is happening in a court or two in the Northern Territory. Therefore he suggested that the Parliament must rush this legislation through today. Any of us who have experience in the courts know that the amount of dislocation which has been caused would be far less than that caused if a single judge became sick with a virus and was off duty for a week. To suggest this as a reason why the Parliament of Australia and this Senate must be stampeded and must rush through legislation is, I think, an absurd proposition. We must consider the implications of what has occurred. We must presume that the decision of the Full Court of the Supreme Court of the Australian Capital Territory is correct. Is the AttorneyGeneral (Senator Greenwood) amused at this discussion or at some other matter? The implications of the judgment are so great and, to my mind, of such historical importance that the Senate ought to consider deeply what it does.
I have indicated already that I have no doubt that action ought to be taken to validate those civil matters which have taken place under ordinances and regulations which did not take effect because of the error, as found by the Court, in the publication of the ordinances and, presumably it follows, of the regulations. There is no doubt that we need some legislation to deal with the position. I am greatly concerned. There is a principle of the rule of law which concerns conduct which was lawful and can be made unlawful by this legislation. This needs some consideration.
This morning I asked for the assistance of one of the parliamentary counsel to draft some amendment which I hoped would give effect to the kind of approach I think should be adopted. I have endeavoured to contact a professor of law to get some advice on what should be done in this situation. If one were to examine the studies that have been made and the learning behind such a situation and what should be done, one would be appalled at the suggestion that this legislation should be rushed through in this fashion. I suggested to the Acting Leader of the Government this morning that the matter be stood over. He is not prepared to have a reasonable adjournment but at least let us stand it over until next Tuesday so that we will have the benefit of a few days to consider and frame amendments. I am prepared to guarantee that we will then facilitate the passage of this legislation on Tuesday.
The Government says that this is an emergency, that it has been caught short and that something must be done. No-one has been able to say that there will be any real loss if this is stood over until Tuesday, if proper validating legislation is then put forward and if the Opposition is given the opportunity of considering what kind of amendments we think should be made in this situation.
Mr President, is that too much for an Opposition to ask? Is it too much to ask that we be given an opportunity of really considering this Bill and of getting some advice? There is no doubt whatever that very serious matters are involved. The effect of the law is that certain conduct was strictly lawful. If people have been convicted or if people are under prosecution, whatever view one takes, of the matter eventually a very great principle is involved. Throughout human history, from the days of the ancient Roman law, the laws of Europe and of England, this has been one of the great principles which has concerned mankind. The principle was embedded in the American Constitution that you cannot make an ex post facto law.
I appeal to Government supporters. Do you understand? You may choose to counteract this argument and say: ‘No, we will do it’. But is it too much to ask that some consideration be given to the matter for a few days and that you ask yourselves: Is it right that we rush this Bill through? Is it right that something a man did which was thought to be against the law by a lot of people but which in fact was not contrary to any law, should foe made a criminal action by means of an Act of Parliament which we are being asked to pass today after the event? It was lawful when done and. today we are asked to turn back and say that something which was done 12 months ago was unlawful.
All -that we of the Opposition are asking for at the moment is for an opportunity to consider this Bill so that on Tuesday we can put to the Senate appropriate amendments to show what we think should be done in this situation. Is the Government to deny us the chance to consider this in the light of the history of these matters? Are we to- be denied that opportunity? If it does that, the Government goes past even the question of ex post facto laws and the rule of law. The Government would be denying us our rights in Parliament. That is what it is doing if we are not given the chance even to consider this Bill or to get assistance so as to come forward in a proper way and put proposals that we think should be considered. I say to the Government that we are prepared to guarantee that we will facilitate the matter going through on Tuesday. If the Government denies us that, it is denying us our rights as an Opposition in Parliament.
– Order! I would like to hear some further expressions of opinion on this procedural motion.
– I express the attitude of the Australian Democratic Labor Party on this motion to promote the earliest possible consideration of the measure which the Attorney-General (Senator Greenwood) presented to this chamber. The Democratic. Labor Party supports the motion. Obviously an extraordinarily difficult situation has arisen as a result of the determination of the Full Court of the Supreme Court, of the Australian Capital Territory. The rights of people are gravely affected and are. likely to be more gravely affected if there is an undue delay in presenting to Parliament legislation which will restore a viable juridical system which is no longer available in relation to many ordinances. Senator Murphy made a case that on further consideration this may have to be done and that may have to be done. I am conscious of the recent attitude of the honourable senator when the Australian Capital Territory Evidence’ Ordinance was rejected by the Senate. The legal system in Canberra was left without any viable code of evidentiary law to apply- in determination of cases. The courts, were unable to sit. In this chamber Senator Murphy was perhaps the first to realise, the urgency of the situation. He said that there must be immediate introduction of legislation to. stabilise the position. He introduced a private member’s Bill.
– A temporary one.
Sentaor BYRNE- -It was a temporary measure, but it was an. urgent measure. The honourable senator stressed particularly the urgency of presentation. I quote from the Hansard report of the debate of 25 th August 1971. Senator Murphy, addressing himself to the second reading of his Bill, said:
The Bill is a very simple one. It is a temporary Bill. It provides for the continuance of the provisions which were contained in the Australian Capital Territory Evidence Ordinance 1971. The Bill proposes to continue that law only until 31st October 1971, and that is the justification for not having a minute examination of the law. It is merely a temporary provision which will overcome the problems of those who are involved in court cases, who might be facing trials and so on. It gives the Government the opportunity to bring in before that time a measure and to have it debated and subjected to analysis in this and the other chamber in the ordinary way.
He went on:
I hope that wisdom will prevail and that the Bill will be passed without any attempt at delay so that those in the Territory who may be affected and whose position has been enlarged on may not be placed in any further difficulty.
I think that the principle enunciated by Senator Murphy at that time is the aplicable principle to this situation. I am rather discomfited that Senator Murphy has now found cause to depart from the principle he enunciated on that occasion. I am at a loss to know why he did so. The cases are virtually parallel. In the first case a body of ordinances was disallowed by the Senate and Canberra was left without any viable evidentiary law. In this a body of ordinances has been declared inoperative by the Supreme Court and again there is no code of applicable law in the Territory. In each case individual rights are affected and are likely to be affected. Each matter is one of urgency. The honourable senator adverted to all those matters on the previous occasion. It appears to me that Senator Murphy’s proposition then was a valid one. It received the support of the chamber. The Bill went to another place and was endorsed immediately. Senator Murphy’s Bill became the operative replacement legislation.
I cannot see why the same principle does not apply in this case. The honourable senator implied, by interjection, that his was a temporary provision which would give us time to examine the principles. The point is that the legislation is legislation to declare what was the law and each ordinance, which today has been declared inoperative by the court, could have been discussed at the time it was introduced. There is no new situation, apart from the practical operation of the ordinance. Save so far as Senator Murphy might say that that difference justifies a difference in his attitude, I think it is quite an indefensible position. Further time would not warrant the examination of the ordinances which have operated for many years, which could have been the subject of disallowance by the Senate when they were introduced originally and which could have been debated in the intervening years. Whether that has or has not been done, this is not the occasion to do it.
Therefore I think there is no warrant for the position which is now being taken to prevent the Bill coming up for the earliest possible consideration. It seeks to regularise the position, to protect the rights of individuals and to defend the situation of those who otherwise might be unjustly and inequitably affected. Therefore we support the motion to advance the consideration of the legislation to the highest position of priority.
– I support the statements made to the chamber this afternoon by the Leader of the Opposition (Senator Murphy). The Government has become renowed as an ad hoc legislative body in both Houses and as an ad hoc law maker. Whenever it finds a loophole it dashes madly around trying to plug it. The report of the Senate Select Committee on Off-shore Petroleum Resources has been before the Parliament for many months. The last of the many chairmen who exercised jurisdiction over that Committee promised faithfully many months ago that the report would be brought on for discussion. Why is the Government avoiding bringing it on? The minority report and the bulk of the report contain recommendations which ought to be exposed to the light of day. On each occasion when there is a possibility of discussing the report the Government seeks cover in the nearest political garden it can find.
Let us look at a few of the things that have gone wrong. The Leader of the Opposition has quite rightly pointed out that there will not be a national crisis if the discussion on the Bill is postponed until next Tuesday. He has given a guarantee that the Opposition will facilitate its passage on that day. Various laws which have been enacted over a number of years indicate that the Government has the same trouble each time it introduces legislation. Now the Attorney-General (Senator Greenwood) is most anxious to plug the loopholes in this Ordinance. If he does not plug them there is a chance that Aborigines might set up a tent embassy in the corridors outside his office in Parliament House. He intends to protect himself at all costs.
– The Presiding Officers can handle that.
– In that case the Attorney-General will be protected.
– Not necessarily, but the Presiding Officers will make the decision.
– The National Service Act has been in and out of this chamber like a yo-yo. The Government cannot administer it properly because each year thousands of people who are over 30, who have not registered and who are not eligible for call-up are being called up in each draft. That is one law that the Government does not know how to administer. The restrictive trade practices law about which the Attorney-General is always skiting is an urgent law that ought to be plugged as soon as possible. What happens? The Government wants to plug a minor ordinance because it has failed to make it waterproof, but a major piece of legislation is not being introduced. The restrictive trade practices law, as it stands at the moment, has about as many teeth as the AttorneyGeneral’s great grandmother.
The Minister for Repatriation (Mr Holten) has promised that he will introduce legislation so that people who serve in the Torres Strait Islands Regiment will be eligible for repatriation benefits. In a letter to me a few days ago he said that he cannot introduce that legislation now. He said that he does not think he can do it in the life of this Parliament - which means in the life of this Government. The Minister for Housing (Mr Kevin Cairns) needs to introduce a Bill to amend the war service homes legislation. That Bill was promised one year ago. It has not been introduced into Parliament yet. I do not think the amending legislation has been drafted yet. Returned servicemen from Vietnam ought to have laws to cover their repatriation. There are no such laws. Recently a former Prime Minister said that new laws ought to be made to cover the disabilities being suffered by these people. Why cannot the Government concentrate on something like that? It would do the Attorney-General the world of good to spend his weekend, firstly looking for loopholes that he has not plugged in the Ordinance and, secondly, drafting a few humane laws to cover the people who are being deprived of their rights.
I was not surprised that the Democratic Labor Party supported the Government. The DLP is in a political corner. It has nowhere to go. Consequently it has to get down on its hands and knees to the Government and beg. If Senator Byrne of the Democratic Labor Party, who thinks that the present situation is so grave, is such an expert on law and is so brilliant in unravelling the legal problems that confront this country he should be appointed as an adviser to the Attorney-General. It may be that if that had happened months ago the Attorney-General would not be making so many mistakes now. I think that the Leader of the Opposition’s proposition is a very valid one and one which ought to be observed if there is to be any sort of democracy in this Parliament and in this country.
That the motion (Senator Drake-Brockman’s) be agreed to.
The Senate divided. (The President - Senator Sir Magnus Cormack)
Majority . . 7
Question so resolved in the affirmative.
– Mr President, I rise under standing order 407b. I propose to declare that the Ordinances and Regulations (Notification) Bill is an urgent Bill. I do so because the Government has indicated its clear concern that a situation exists not only in the Australian Capital Territory but also in other Territories whereby ordinances and laws which have to be notified in the Government ‘Gazette’ may be defective in a number of respects. It is a matter of urgent concern and the Government believes that this Bill should be passed today to correct the position entirely.
– Order! The AttorneyGeneral may move such a motion but he may not debate it
– I therefore declare that the Ordinances and Regulations (Notification) Bill 1972 is an urgent Bill, and move:
That the Bill be considered an urgent Bill.
– Mr President, I would like your guidance on the opening words of standing order 407b, which read:
When a motion for leave to introduce a Bill is called on, or when a ‘Message is received from the House of Representatives transmitting a Bill for concurrence, or at any other stage . . .
It seems to me that these are the times when a Bill should be declared to be an urgent Bill, and not at a later stage. We have just debated a proposition in relation to this legislation for 30 minutes. It seems to me that the Attorney-General has adopted the wrong approach.
– Mr President, in amplification of what Senator Willesee has said, I wish to say that it seems to me that standing order 407b provides that a Bill may be declared to be an urgent Bill when a motion for leave to introduce that Bill is called on - and that is not happening; when a message is received from the House of Representatives transmitting that Bill for concurrence - and that is not happening; or at any other stage of the Bill-
– That is happening.
– That is not happening because it has not been called on.
– The Bill has not been called on.
– You, Mr President, in response to the interruption of Senator Webster and others, have ruled that it has not been called on. I repeat that that is not happening. I have stated the 3 occasions on which a Minister may declare that a Bill is an urgent Bill and not one of those is happening. Mr President, may I suggest, with respect, that when the Bill is called on Senator James McClelland should receive the call as he is in the course of his speech. When Senator James McClelland has finished and someone from the other side is called, the course proposed by the Attorney-General can be taken in accordance with the proper courtesies. But I suggest, with respect, that in accordance with the dignity of the Senate and the requirements of the relevant standing order the Attorney-General is out of order because of the rule that a senator ought not to be interrupted. Senator James McClelland ought to be allowed to conclude his speech. If the Government then wants to take some Draconian course, let it commence upon its erosion of parliamentary rights.
– I would have thought that the interpretation which is made by the Leader of the Opposition and by Senator Willesee is a very narrow one. The precise words are ‘at any other stage of a Bill’. That does not mean that the Bill has to be called on for debate. It does not matter whether a Bill is in the course of being debated at the second reading stage or in committee or in any other stage of the Bill. It means that at any time from the introduction of a Bill until the Bill has been passed a Minister may rise in order to do this. I would suggest that it would be an unreal interpretation to say that before a Bill is called on a Minister may not move by way of indication given earlier in the day for example, that the Bill is to be declared an urgent Bill. It would restrict the Senate unnecessarily.
– Order! The point of order is not upheld.
– I move -
That the ruling be dissented from. (Senator Murphy having submitted in writing his objection to the ruling)
That the question requires immediate determination.
– I regret to have to move dissent from your ruling, Mr President, but this is a simple matter. If the Attorney-General (Senator Greenwood) waited for 20 minutes he could do what he wants to do then.
– All you are doing is cutting into the time.
– No, I am not. As I say, I do this with some regret because it is obvious that the Government will endeavour to shorten the time for debate.
– -It is obvious that the Opposition will try to stop the debate.
– Order! There is no question about this. The Opposition as well as the Government, has rights. I am the fulcrum in this case and I acknowledge the facts.
– I move dissent from your ruling Mr President, with some regret because it is obvious that the Government will endeavour to force this matter through and allow the Opposition very little time for debate. I have indicated the course that could be taken which we consider is in conformity with the Standing Orders. This kind of procedure could be initiated by the Government at the conclusion of Senator James McClelland’s speech which should not take very long. But the Government is not content even to wait for that to happen in accordance with the time honoured procedure that an honourable senator is not to be interrupted in the course of his speech. I suggest that it is not permissible to do what the AttorneyGeneral proposes to do in the course of an honourable senator’s speech.
One of the strongest rules contained in the Standing Orders is that an honourable senator is not to be interrupted when he is speaking except on a point of order. If it is permissible for the Government to do this under standing order 407b, this will mean that it is permissible to interrupt, or even to curtail an honourable senator’s speech so that the second reading stage of a Bill would conclude within 2 minutes. In this way, Senator James McClelland could be prevented from making his speech. The Government cannot interpret the Standing Orders in a way that would permit that unless it is to break the time honoured rule that an honourable senator who is on his feet is not to be interrupted except by the taking of a point of order. Does the Government want to do that? I say to the Government: Take the action you have foreshadowed if you must, but at least let the honourable senator finish his speech.
Is the Government going to make another incursion into people’s rights so that the honourable senator will not be allowed even to finish his speech? Once the Attorney-General declares the legislation to be urgent he can then move his motion immediately and cut off the honourable senator from finishing his speech. The great difference between this House and another place is that in that place the question can be put when an honourable member is on his feet. But in the Senate, this cannot be done. We have taken the view that whatever happens we will not allow that indignity to be perpetrated against the person of the honourable senator. If this device can be used in the midst of an honourable senator’s speech, it means that he can be cut off.
– What do you mean by in the midst of an honourable senator’s speech’?
– Right now, the honourable senator has not concluded his speech.
– But the standing order says ‘whilst speaking’.
– I am referring to standing order 407b.
– Standing order 422 states:
No Senator shall interrupt another Senator whilst speaking . . .
– If this can be done under standing order 407b, it will mean that an honourable senator can be interrupted before he has concluded his speech.
– I rise to order. Mr President, the debate is on the motion that your ruling be dissented from. Senator Murphy is going far beyond what is relevant to that ruling. He is embarking upon suggestions that people will be denied an opportunity to speak. If he would only read the standing order and appreciate that there must be another motion after the one which I have moved which is open to debate and which fixes the speaking times he would know that this has no relevance at all. What he is seeking to do is to use the vehicle of a motion of dissent from your ruling to canvass issues which under the Standing Orders are not to be debated when this substantive motion is put. There will be ample opportunity, as the Standing Orders provide, when the next motion is moved to fix the times which are part of the guillotine to enable these matters which he is now canvassing to be raised. I raise the point of order on the simple ground of relevance. I think it is incumbent on a person in Senator Murphy’s position to address himself to the motion of dissent from your ruling which he has moved.
– I make one explanation in relation to this matter: Once the presiding officer has given his ruling it is open to the Senate to make a decision as to what the procedure is to be followed. Senator Murphy’s right as Leader of the Opposition in this connection is undeniable but I think that he would probably give consideration to the point raised by the Attorney-General in proceeding to his concluding remarks.
– I will. I wish to make this point which apparently has not been understood: It is immaterial whether today the Attorney-General proposes to move subsequently a motion which will cut off Senator James McClelland’s speech. It may be that he would not and I would hope that he would not. What I am asking to be understood, Mr President, is that if the Standing Orders can be construed in the way that you have ruled, on another occasion a Minister could move that the second reading stage of a Bill be completed within 5 minutes.
– But there is another standing order which says that the speech of an honourable senator cannot be interrupted. Senator Murphy does not give credence to that.
– That is the point I am making. If any reasonable effect is to be given to the standing order which states than an honourable senator is not to be interrupted when he is on his feet - and when a matter is called on again he is deemed to be on his feet - this ruling must be dissented from. Otherwise the Government will destroy the guarantee which is given that a senator shall not be interrupted. If he can be interrupted in this way before a matter is called on it means that under standing order 407b the Government can by a subsequent decision require the debate to be concluded. The protection which would be given to the Senate by standing order 422 will be lost. That is the point that is important. It is not important what the Attorney-General will do today. It is important whether, on your ruling Mr President, this can be done before an honourable senator has concluded his speech. The significance of this matter goes beyond what happens today. I do not think that the Attorney-General intends to stop Senator James McClelland. But if that can be done now, on another occasion an honourable senator’s speech could be cut off at any time. 1 would ask the Senate to rule that the motion desired by the AttorneyGeneral cannot be moved while the honourable senator is in the course of making his speech. It should not be moved until, as the standing order says, the motion for leave to introduce the Bill is called on, which is not happening; or until a message is received from the House of Representatives transmitting a bill for the concurrence of the Senate, which is not happening; or at any stage of such a bill. The Bill has not been called on. The moment it is called on it is Senator James
McClelland’s right to have the call and not the Attorney-General’s. At the conclusion of the honourable senator’s speech let the Attorney-General do what he wants.
That the ruling be dissented from.
The Senate divided. (The President - Senator Sir Magnus Cormack)
Question so resolved in the negative.
That the Bill be considered an urgent Bill.
The Senate divided. (The President - Senator Sir Magnus Cormack)
Majority . . 6
Question so resolved in the affirmative.
Allotment of Time
– Pursuant to standing order 407b, and following the carriage of the motion moved in accordance with that standing order, I now move:
That the time allotted for the consideration of the Bill be as follows:
For the second reading of the Bill, until 5.45 p.m.;
For the Committee stage of the Bill, until 9.30 p.m.; and
For the remaining stages of the Bill, until 9.45 p.m.
Mr President, this is a motion which may be debated and, as I indicated by way of explanation on a point of order a short time ago, this ought to have absolved the need for some of the things that were said earlier. It is quite apparent that reasonable time is being allowed for the discussion of this measure. There would have been a further half an hour available if the declaration of urgency had been acceded to without the consequent divisions and dissents. To allow the debate on the second reading to go until 5.45 p.m., after there has been approximately a 6-hour debate in the House of Representatives, I think will enable this Senate to canvass any matters which have not been canvassed in the place below. Of course the Senate, having the function of a House of Review, is the appropriate place in which new matters should be aired. Additionally, because I suspect that there will be debate on Senator James McClelland’s amendment at the Committee stage, a period until 9.30 p.m. has been allowed for the Committee stage of the Bill.
I still cannot quite believe that the Opposition is opposed to the principle of this Bill. If it is not opposed to the principle of this Bill and if it feels that the debate should be centred on the matters raised by Senator James McClelland’s amendment, then there is no reason why the second reading cannot be attended to fairly promptly and so much extra time made available for discussion at the Committee stage of the Bill. The sole point of this motion is to ensure that the Government can secure the passage of this Bill through the Parliament today, and I think that the times which have been allowed will ensure that that is done and will not unduly restrict any honourable senators.
– Mr President, it must be remembered that we are dealing with probably one of the greatest issues in the constitutional sense that has come before a parliament. It is curious how often the rights of man will come up in a curious way. Often the great rights of human beings have been determined in cases which have centred on the fate of some despicable human being. Somebody might be charged with murder, rape or some other terrible thing. One may not have much concern or sympathy for the person involved. But very often the great issues arise from cases which do not have much merit in them, and those who understand the history of our law and the way in which the great principles have evolved will understand this. Sometimes the great issues arise in accidental ways. There will be technicalities in the law; there will be all sorts of surprising happenings out of which there is a determination of matters of very great principle.
Here in the Australian Capital Territory - and it affects the whole of the Commonwealth of Australia - there is, as a result of what may seem a sort of accidental happening, a focussing of attention on one of the greatest principles in the law which has concerned mankind throughout the ages, and it is whether we should ever, in any circumstances, by a law, by an Act of parliament, after the event, make unlawful what was lawful. That is the issue with which we are concerned today. The Attorney-General (Senator Greenwood) wants to rush the legislation through the
Parliament before the people of this country are able to absorb what is really at stake. What is at stake is not the error that has been committed, according to the Supreme Court, in the publication of these matters; it is the consequence of that error - that really the law had not taken effect and that the people who did certain things were guilty of no crime at all. We are going to make what they did last year, or 10 years ago, a crime today. This is what is at stake here.
– No workers’ compensation pay.
– The AttorneyGeneral seems to want to crunch that aside. Senator Little says ‘no workers’ compensation pay’. He knows as well as I do - I have said it before and I will say it again - that obviously there must be some kind of validating legislation to cover civil rights. But there is embedded in this also the question of criminal liability. Are we going today to make unlawful and criminal actions which were lawful? Today, right now whether you like it or not, there are people who, whatever they have done, were innocent and not in breach of any law. At 9.30 or 9.45 tonight, when the Attorney-General can rush the Bill over to the Governor-General, he will turn actions that were innocent when they were committed into criminal ones.
– ‘What do you do about the ones who are in gaol already?
– Senator Durack asks an important question. It is the kind of thing to which some attention ought to be given.
– What do you say you should do?
– This is the kind of thing that ought to be debated by this Senate of the Commonwealth. It should be given the greatest consideration. Senator Durack has asked an important question. He asks: What do we do about people who have been convicted of offences not known to the law, where there has been no breach of the law? They are in prison, and what do we do about them? I would think that is one of the greatest questions which could come before the Parliament. Instead of giving some proper deliberation to this question, as has been given to it in other countries over the years, honourable senators opposite will vote to push the legislation through by 9.45 p.m. and it will not be discussed properly. I do not think it is consistent with the proper exercise of parliamentary responsibility to conduct affairs in this way.
It is obvious that the. measure will be railroaded through this Parliament. Innocent people will be turned into guilty people. The Government is determined upon that course. It wants to do it not because there will be any harm done by leaving the matter until next Tuesday. The idea is to get this legislation through before the full implications get out into the country at large where professors of law, bar councils and law societies will get the message and voice their protests about this way of dealing with these rights. That is the reason for this attempt to push the legislation through now. We do not agree with that course. We do not think that it is consistent with proper parliamentary procedures. But it is consistent with what the Government has been doing for a long time, and that is one of the reasons why the Government will be destroyed at the next election.
– in reply - Senator Murphy spoke against this motion. In the course of doing so he used arguments which I would understand, if one challenged them, be would regard as relevant to the point he was putting. Let me reply to some of the arguments. If an argument is essentially a sham, it is not made any better with the histrionics by which it is played. And essentially Senator Murphy’s argument is a sham. There is a difference between retrospective legislation and validating legislation. The real difference between that which is merely retrospective law and retrospective validation is that the law confirms the generally believed state of affairs. A retrospective provision makes unlawful something that was thought to be lawful at the time it was done. A retrospective law is one which comes in after people have acted lawfully and says: What you did lawfully is now unlawful’. That is retrospectivity. If that is what Senator Murphy is condemning, I will share with him his condemnation of it. But that is not what this measure is doing. One might express the position shortly in this way: A validating measure confirms community expectations; a merely retrospective law would frustrate those expectations. If one looks at the books - I do not give the details here because I do not want to make the Senate into a lawyers’ debating chamber - one finds ample expressions justifying that point.
But the real argument for present purposes seems to me to be that the defect was of a technical character; it was not related to the substance of the law; and the law was generally believed to be in operation. Whatever might be the criticism to be levelled at the substance or the manner in which it was carried out, the fact is that the community believed that all these laws which are now open to some doubt were in operation, that the obligations people incurred under these Jaws were properly incurred and that the rights people had under these laws were ones they were entitled to have. That was the community expectation, and it has been set at nought because of the judgment of the Supreme Court of the Australian Capital Territory. This law will overcome that defect which the Court found and confirm that what everybody believed to be the position is in truth and in law the position.
If we take into account the very wide effect of the judgment on the laws of the Australian Capital Territory, the laws of the Northern Territory and Commonwealth regulations generally, the general public interest clearly would be in favour of a validation with this retrospective effect, as has been done in this Parliament on many occasions in the past without all the play which members of the Labor Party are now seeking to make. If there is validity in the point they now make, why did not they use it on earlier occasions? Why did not they use it when the Removal of Prisoners Bill was passed in 1969? Why was it not used when the Matrimonial Causes Bill was passed within the last 12 months? Why is it used only in this case? I know and we all will know by the time the debate has finished. It is because some people who were arrested outside Parliament House are, in varieties of ways, the friends of members of the Opposition who want to use this forum and this Bill to give those people favoured treatment over other people who are in precisely the same position as they are as a result of the Supreme. Court’s decision. This is an example of the selective operation of law enforcement which the Labor Party has promised the Australian people it will give them if ever it should get into power. This is a very salutary lesson as to how the Labor Party would operate law enforcement. It would make particular provisions for its friends, and it would not matter what happened to other people.
What is being effected by the Bill that is about to be debated here is a restoration of the position in the public interest in order to remedy a technicality which had existed in the law for decades but which no one believed was a technicality that in any way had the effect or consequence that the Supreme Court has said it had. It is a quite different matter from carving out a new offence in relation to actions done in the past which were generally believed to be lawful at the time they were done. It is a totally different situation from that which Senator Murphy has put forward. As I said when I started, the argument he has put forward is a sham because, on examination, it lacks basis.
That the motion (Senator Greenwood’s) be agreed to.
The Senate divided. (The President - Senator Sir Magnus
Majority . . . . 6
Question so resolved in the affirmative.
– I have to inform the Senate that I have received from the Acting Leader of the Government in the Senate a letter advising changes in membership of Estimates Committees as follows: Estimates Committee A - -Senator Lawrie to replace Senator Maunsell; Estimates Committee B - Senator Guilfoyle to replace Senator Rae; Estimates Committee D - Senator Webster to replace Senator Maunsell; and Estimates Committee E - Senators Hannan and Young to replace Senators Dame Nancy Buttfield and Wood.
– At question time today I said that I wished to take the opportunity to table a document in the Senate. On 22nd August I tabled details of VIP flights of the Royal Australian Air Force for the period 1st March 1971 to 31st May 1972. I also informed the Senate that I would make available at the earliest opportunity information for the period 1st June 1972 to 17th August 1972. The document which I now table covers this period and embraces all details of approved applications for VIP travel. It has been reconciled against the relevant flight manifests. I present the following document:
Use of VIP aircraft - details of approved applications 1st June 1972 to 17th August 1972.
– For the information of honourable senators, I present the Defence Report 1972.
– Pursuant to section 122 of the Repatriation Act 1920-1972 I present the annual report of the Repatriation Commission for the year ended 30th June 1972.
Debate resumed from 13 September (vide page 798), on motion by Senator Greenwood:
That the Bill be now read a second time.
– When the Senate adjourned last night I had said that I would have thought that the appropriate demeanour for the Government, having got the law of this country into its present mess, would have been one of humility and at least some indication of a readiness to apologise. However, the Government has persisted today in its arrogant attitude. In order to complete the story of its ineptitude, I draw the attention of the Senate to the messy manner in which the Government has gone about getting out of the mess into which it has already got itself.
I point out that the Gazette which the police cited when they moved the protestors off the lawns in front of Parliament House in the early hours of yesterday was dated 12th September 1972 even though Mr Hunt, the Minister for the Interior, admitted at question time yesterday that it was actually published on 13th September 1972. In addition, this Gazette incorrectly describes the Seat of Government (Administration) Act as being ‘1901-1972’ instead of ‘1910-1972’. Even then, the Government in introducing hastily this Bill, had to amend its own Bill by introducing an amendment to cure a deficiency which it discovered belatedly in the hastily drafted Bill. This is the Government which constantly gibes at the Opposition as being unfit to govern. I refer to this bunch of bumbling lawyers who cannot even master the trivia of the legislative process.
I see that we are getting the usual reaction from the Attorney-General (Senator Greenwood). When he finds himself embarrassed he resorts to a schoolboyish giggle. This will not alter the fact that he has made an awful mess of the law and that he continues to make a mess of it. The only thing for which we can be grateful is that his tenure of office obviously is to be such a limited one.
As Senator Murphy has pointed out time and time again in discussing this exer cise that we are going through today, the real vice of this legislation is that it represents an abandonment of the rule of law by retroactively making criminal actions which were not criminal when committed. No matter how much casuistry we get from the Attorney-General - and we have had a sample here today in the discussion of some of the preliminary matters - this is exactly what this legislation sets out to do. As I pointed out yesterday, in the case of the Attorney-General and the other lawyers on the other side, we are dealing with men who constantly boast of their devotion to the rule of law. This is a government whose members, we are told, differ from the prospective Labor government in being upholders of the rule of law and in being respecters of literal obedience to the law. When pressed to highlight the significance of the phrase ‘the rule of law’, most jurists would emphasise 3 fundamental characteristics. These are the primacy of legal rules over arbitrary decision making, the equal and universal application of those rules, and the certainty of rule content. Retrospective law making, involving as it does the passing of a law after the occurrence of a fact or an act, having the effect of retroactively altering the legal consequences or significance of such act, may be and indeed is viewed by many jurists as weakening the rule of law. It is arbitrary. It reflects uncertainty. It undermines confidence in the legal framework. It upsets otherwise vested interests.
So much is this respect for these concepts enshrined in other systems of law that we find many legal systems express an absolute bar on such legislation. Perhaps the most prominent in terms of the leading legal systems of the world is to be found in Article I Paragraph 9 of the United States Constitution which provides simply:
No Bill of Attainder or ex post facto Law shall be passed.
This has been interpreted by the courts of the United States as being limited to criminal and penal enactments. In this regard, I also draw the attention of the Senate to the International Covenant of the United Nations on Civil and Political Rights. We must assume that this enshrines principles to which, this Parliament gives its allegiance seeing that, in general, we are in sympathy with the aims of the United Nations. Article 15 of this Covenant states:
These are the principles that are respected by jurists throughout the world.
It is true that there is under the Australian Constitution no constitutional restriction on the power of the Federal Parliament to enact such a law. I point out in this regard that in the first speech I made in this chamber I drew attention to the shortcomings of the Australian Constitution in this regard and I strongly urged the necessity for our country to have a Bill of Rights which would spell out specific rights. In the light of what this Government is attempting, I draw attention again today to this gap in our legal code which does not spell out similarly the sorts of rights which exist under the American Constitution and the sorts of precautions against this arbitrary tyrannical conduct which is possible from a government - fortunately a rare occurrence in this country - which is as insensitive to the rule of law as is this Government which boasts so constantly to be the upholder of the rule of law.
Even though under the Australian Constitution, as I have said, there is no barrier to the introduction of retroactive legislation, the courts nonetheless have made it clear that they do not approve of such legislation. They have tried to add their weight to limiting the application of retroactive legislation. The principle that is well-established in our courts is that in the absence of an express and unequivocal provision to the contrary, legislation is presumed to have a prospective operation only and is given effect accordingly. The judicial rationale for that approach is that, simply because retrospectivity involves an invalidation of behaviour which at the time was legal, the legislature would not have intended such a result unless such an intention was given unequivocal expression.
That principle is enshrined in a series of cases that have been decided in our High Court. I have no doubt that the lawyers opposite will be familiar with them. But perhaps the clearest statement of this principle is to be found in Kidmans’ case, decided by the High Court, in which this expression of opinion is given by Mr Justice Higgins:
I know of no instance in which a legislature created by the British Parliament has been held to have overstepped its powers by making legislation retroactive.
This is the concession which I have freely made and which I believe to be a gap in our legal structure. He continued:
There are plenty of passages that can be cited showing the inexpediency, and the injustice, in most cases, of legislating for the past, of interfering with vested rights, and of making acts unlawful which were lawful when done.
As I have said, the shortcomings in our Constitution are compounded when we have, as we have at the present moment, an inept, authoritarian government whose sensibilities have been blunted by an unhealthily long term in office. This position, of course, will soon be changed, but it would be a calamity if in its dying hours this Government were permitted by the Parliament to get away, under the guise of defending law and order, with this cynical abrogation of the rule of law.
I had intended to speak at much greater length, and of course I shall be speaking in the Committee stage to an amendment which I have foreshadowed, but in view of the Act of the Government in curtailing this debate I do not wish to deprive others who wish to take part in the debate of their opportunity to make their contribution. For that reason I shall have nothing more to say at this moment but will reserve my further remarks for the Committee stage of the Bill.
– I am disappointed that the speech that we heard last night and again today from Senator James McClelland followed a pattern which has become rather familiar in speeches from the honourable senator when dealing with Bills which are in the charge of the Attorney-General (Senator Greenwood). It is a most serious matter that is before the Senate and, therefore, I should have thought that more of the honourable senator’s time would have been better spent in dealing with the subject and the serious arguments that he says he intended to deliver, rather than spending so much time on what was really a personal attack on the Attorney-General in particular and on the Government in general. The allegation on the Government surprised me. I was not surprised at the attack on the Attorney-General because that seems to be the usual line of argument in a discussion of legal matters, not only from Senator James McClelland but also from the Opposition generally.
The attack that somehow or other the present situation is due to ineptitude on the part of the Government is very strange because one thing that certainly is clear in this problem is that it has existed since 1940 at least. If my political history is correct, for 8 years of that period regulations and ordinances - it being wartime there was a very great spate of regulations particularly - were promulgated by a Labor government. Many of them, if not all, would have offended the Seat of Government (Administration) Act in the same way as the Full Court of the Supreme Court of the Australian Capital Territory the day before yesterday held that the Trespass on Commonwealth Lands Ordinance 1972 breached the provisions of that Act. So any attempt to make cheap political capital at the expense of the present Government because of this unfortunate situation is completely misapplied and represents a complete misunderstanding of the reasons for the judgment and the history of the manner in which ordinances and regulations have been notified in the Commonwealth Gazette for more than 30 years. As I said, for 8 years of that period there was a Labor Government which would have been equally guilty, if any guilt can really be attributed to any government on a matter so technical as this.
– They are very quiet on that point.
– They are very quiet, because there is no answer to it.
– You are underlining the hypocrisy of the whole thing.
– It certainly reveals hypocrisy to a very considerable extent. I do not wish to minimise in any way the serious nature of legislation such as this which is before the Senate this afternoon. I agree that when Parliament is asked to pass legislation to validate laws which have been held to be ineffective, inoperative or invalid, we have a most anxious question presented to us. The Attorney-General, I think quite rightly, has pointed out on several occasions over the last 24 hours the distinction between legislation which is purely retrospective, retroactive or ex post facto - whatever big words one uses between legislation which is designedly and intentionally directed at creating a legal obligation in relation to a past situation and alter what was the legal result of that past situation. When the Parliament deliberately and intentionally does that there is a very clear breach of some fundamental constitutional issues.
This Bill is not of that order. It is a Bill to validate laws which everyone had thought for 30 years were valid and effective but which, because of a technicality discovered by the judges who constituted the Full Supreme Court of the Australian Capital Territory the other day, are deficient in a very technical fashion. There may be, in logic, a very fine line here. I am the first to concede the problem because I think it is enormously important that we as legislators should bear in mind that where we are concerned only with the validation of a law we are in fact dealing with past events and we are technically changing a legal situation. It is true that people who would have this technical defence available to them as a result of the legislation before us will no longer have that technical defence available to them. So I do believe that this is a matter which must be faced by us with great concern.
It is only in the most exceptional circumstances that we as a Parliament would be justified in passing legislation of this character. I frankly express my own general distaste for legislation of this character, but the fact remains that we are not political or legal theorists or academics; we are here charged with the responsibility of government; we are here charged with making at times very hard practical decisions. I suggest to the Senate that it is in that context that we should be facing up to these issues, not being concerned with what are pretty academic discussions of whether this BUI is retrospective or retroactive or offends some academic principle.
It is an unfortunate fact of life that sometimes governments and parliaments are faced with the sort of situation that confronts us in regard to this Bill this afternoon. There is nothing new about the problem. It is one which, as I have said, many governments and many parliaments have faced. In the short time that J have been in this Senate, this is the third occasion on which we have had to face the same situation. I have had previous experience of it as a member of a State parliament. I cannot remember the number of times but I certainly remember having to face the same situation on several occasions and being confronted with validating bills as a result of technicalities, technical faults, revealed largely, but not always, by legal decisions.
It is of great importance so far as this debate is concerned that we should have regard to our recent experiences in this matter. It is very interesting to consider the attitude of the Australian Labor Party on recent occasions in the Senate. As I have said, today Senator James McClelland has placed firmly his opposition to this legislation on a very high principle, namely, that it is changing and affecting established legal rights or obligations, and the legal character of past events. At an earlier stage this afternoon during debate on one of the various procedural motions that we dealt with, Senator Byrne referred to a situation which arose some months ago when the Senate disallowed an ordinance relating to evidence and the fact - it was very interesting as he recited it - that the Leader of the Opposition, Senator Murphy, introduced a holding Bill to deal with a very similar type of situation to the one facing us now.
However, I have particularly in mind a Bill to validate a whole host of orders and decrees that had been made under the Matrimonial Causes Act over a period of some 10 years or more by registrars or masters of Supreme Courts throughout Australia. As a result of 2 decisions of the High Court of Australia last year it appeared that if not all, at least a great many of such orders were invalid. I would have thought from what members of the Opposition said, here today and last night, that in those circumstances they would have found themselves in the most delicate and difficult situation. Many people had been subjected to penal provisions as a result of the enforcement of these orders. Many people would have been put in gaol for non-compliance with such orders, all of which had been found to be invalid by the High Court of Australia.
What did the Government do? Naturally, in this situation, a responsible government would have acted in the way that this Government and this Attorney-General acted and have brought in a validating Bill. Such a Bill came before the Senate and the motion for its second reading was debated in this place on 11th November 1971, not 12 months ago. When the second reading debate resumed on that day, Senator Wheeldon spoke on behalf of the Australian Labor Party. It is very interesting to note that Senator Wheeldon was the only speaker for the Opposition in that second reading debate. Senator Murphy, who spoke today in such resounding terms about the abrogation of these great rights, did not speak in that debate. Neither did Senator James McClelland who is so outraged about the Attorney-General and his attitude. Neither of those 2 gentlemen bothered even to speak in this Senate on this vitally important subject, as we understand it now. I am pleased to say that I spoke in that debate and expressed, as I have expressed it today, my distaste for this type of legislation and the necessity for it. However, it is very interesting to note that the only member of the Labor Opposition who spoke in the debate on that Bill which presented exactly the same issue as this Bill does, was Senator Wheeldon. What did Senator Wheeldon say? He said:
This Bill is designed merely to rectify the situation and to ensure that those persons who would otherwise be adversely affected by the lack of validity of the proceedings shall be protected.
It was designed merely to do that. Well, that is all that this Bill is to do. It is merely to rectify a situation which has been thrown into complete doubt and disarray over a period of 30 years.
– This is not the same thing.
– Senator Cavanagh, I have listened’ to what further words have been said on behalf of your Party.
– I am concerned about what you are doing now. This Bill convicts people.
– Well, the previous Bill was validating a situation in which many men had been put in gaol. They would have had rights to claim damages for having been put in gaol over a period of many years. That is what that Bill did. There is no argument about it, no matter what you might say now.
– Did Senator Cavanagh protest on that day?
– He said nothing at all. That was a very fundamental question, exactly as this is. There cannot be the slightest distinction. Senator Wheeldon went on to say:
The Australian Labor Party is not opposing the Bill. Indeed, the Party does not have a position on the matter at all.
The Australian Labor Party ‘does not have a position on the matter’. Senator Wheeldon also said:
In any event, I doubt whether any member would feel that his conscience constrained him to vote against the validating of decrees which have been made already under the existing Act.
Quite rightly, and in full justice to him, Senator Wheeldon believed that no member of the Australian Labor Party felt that his conscience extended to being concerned about such a matter. Therefore it is very strange that the consciences of so many members of the Australian Labor Party have suddenly become so tender in a period of a few months. I wonder, Senator Webster, why that would be so?
– Do you think it could be political?
– Well, I hesitate to make personal attacks on members of the Opposition but I think there is reason for us to conclude that there may be some political element in the Opposition so forcibly put by Senator Murphy and Senator James McClelland against this Bill this afternoon. That is one example - an outstanding and very recent example - of a validating Bill being introduced and passed with the support of all members of the Senate. It was passed for eminently practical reasons, no matter whether it may have breached - I do not think there can be any doubt about that - technical adherence to the principles about retrospectivity of legislation.
– You are not concerned about that matter.
– Of course I am concerned. I am very concerned about legislation of this type, but that is not the issue on which we have to determine the matter. We have to determine the issues on the practical problems that are presented in a situation of this kind. Each case has to be decided upon its merits. I have indicated to members of the Opposition that in recent months they have supported a Bill in exactly the same terms.
– There was no similarity between the 2 Bills.
– There was, but I could talk until I was blue in the face endeavouring to convince Senator Cavanagh that the matters were similar. I have already given my reasons. I am sure that they will commend themselves to open minded members of the Senate. There are many other precedents where, because of the practical exigencies of the situation, parliament has been required to pass legislation validating matters which have dealt with past events - not only the Bill which I have mentioned but also a Bill I can recall being introduced only a few weeks ago by the Tasmanian Government to validate the operations being undertaken by that Government in regard to Lake Pedder. Legal doubts had arisen about the validity of the Government’s action in regard to filling Lake Pedder and the works that the Government was undertaking. Legal actions were commenced or were sought to be commenced by citizens because of alleged technical breaches. Before a court decision could be given the Tasmanian Labor Government introduced and passed through the Parliament a Bill to validate what had been done.
About 12 months ago in Western Australia, shortly after the Labor Government took office, it introduced and passed through the Parliament in the course of one day a Bill not just to validate but to deprive entirely a mining entrepreneur of the legal rights which he was claiming against that Government in respect of prospecting areas in the Pilbara. A gentleman by the name of Lang Hancock was claiming the rights against the Government in respect of areas on which he had spent millions of dollars prospecting. He had commenced action to have his rights declared by the Supreme Court and the
Labor Government of Western Australia swept them away in less than 24 hours. It deprived him of his rights. In the face of these instances and attitudes of the Labor Party to this type of legislation, how hollow and hypocritical is the stand which has been taken this afternoon by Senator Murphy and Senator James McClelland in relation to the Bill.
I have indicated my concern and distaste at this sort of legislation. I will take a little time to express the reasons why I support the Bill and why I believe that it is absolutely vital that the Bill should be passed by the Senate and the Parliament as soon as possible. I hope that Labor senators will at least do me the justice of listening to my reasons, even when I state that I am prepared to concede that undoubtedly as a result of the legislation there will be changes in the legal position in which some people may find themselves. The Bill validates ordinances and regulations. Let us not forget that it validates regulations as well as ordinances. Perhaps the Bill is even more important as far as regulations are concerned. It validates ordinances and regulations which have been made by the Commonwealth Government for more than 30 years. Under the various ordinances and regulations a multitude of rights will have been created, duties and obligations will have been imposed and penalties will have been imposed. If counsel for people who have been charged had thought of this highly technical argument which commended itself to the judges of the Supreme Court recently, their clients would have been acquitted. They would not have suffered any penalty. I suppose fines totalling hundreds of thousands of dollars have been paid over the 30 years.
There have been impositions on people, and there have been rights given to people. When the Attorney-General introduced the Bill he indicated some of the Ordinances under which people have acquired and have had the benefit of many important rights, financial and otherwise. I think the ordinance relating to workers compensation was one that was mentioned. If that is invalid all the moneys which have been received and all the moneys which have been paid over the 20 or 30 years in which the ordinance has been in operation would not have been rightly paid or rightly received. The situation is not a simple one in which a few people who may have been arrested in front of Parliament House on 20th and 23rd July and whose cases have not yet been heard will be affected by the legislation. The people affected will be those people who have been charged and perhaps dealt with by the courts over a period of 30 years. If we do not want to take the argument as far as that, we might consider the position of people in the Australian Capital Territory who have been charged with breaches of other ordinances and other regulations which occurred on 20th and 23rd July and since those dates. No doubt there have been many arrests under the motor traffic ordinances. No doubt there are many charges of drunken driving or dangerous driving which perhaps have not yet been dealt with. There may well be other more serious offences. If there are to be distinctions in regard to the people for whom the Labor Opposition has such solitude-
– Who is making the distinction?
– That is what the amendment does. The amendment moved by Senator James McClelland is concerned only with persons charged with offences arising out of incidents outside Parliament House on Thursday, 20th July 1972, and Sunday, 23rd July 1972, where those charges or incidents arose out of or are related to the purport of notification in the Gazette of the Trespass on Commonwealth Lands Ordinance. Those people are the only ones about whom the Opposition is expressing any concern. It is making fish of one and fowl of hundreds. Surely it would be the greatest mockery of parliament and the greatest affront to those affected by the Bill if we were to add a qualification of that kind to the general matter of validation of ordinances and regulations. The validation will go back over a period of more than 30 years.
I believe that when Parliament is faced with a practical problem which has dimensions such as this problem has it is a matter simply of making a common sense judgment as to the fairest way of handling the situation. As I have said, the Bill that has been brought forward by the AttorneyGeneral commends itself to me as being the only practical and sensible way of dealing with a situation such as the one that has been presented to us by these events. It is a situation which has arisen from a decision of a court. Frankly, I can only say that the, decision was one which surprised me. It is certainly a decision which I think any lawyer - I do not know what would be the views of a layman - would concede was based on a most technical ground. Opposition senators have talked about the ineptitude and so forth of the Government. I wonder whether they have read the reasons given by the judges of the Full Court of the Supreme Court of the Australian Capital Territory for their decision. I think it is most unlikely that anybody could have foreseen such technical objections not only as submissions to a Supreme Court by counsel, but also as finding favour with judges of a Supreme Court.
I think the very technical nature of the fault that has been found with these ordinances and these regulations and the manner of their notification, as well as the practical problems I have already outlined, is a highly important consideration for the Senate. What has been said to be at fault with the Trespass on Commonwealth Lands Ordinance? It has nothing to do with the making of the ordinance by the Government or the content of the ordinance. All of these matters of substance were strenuously challenged by counsel and dealt with by the judges of the Full Court. What the judges found was that the Seat of Government (Administration) Act provides that before an ordinance can be effective or operative the fact that it has been made must be notified in the Government Gazette and the place where copies of it can be obtained must be indicated. There is, of course, good reason for this.
One could be forgiven for thinking that perhaps the Government failed to put a notice in the Gazette. But that was not the position. A very full notice was in fact but in the Gazette. It was headed ‘Notification of the Making of Ordinances’. I do not know how there could be any doubt whatever in the mind of anybody about that indicating that an ordinance has been made. In the schedule underneath the notice is a description of the ordinance. There was no finding that there was an inadequacy in the description of the ordinance or the reference number of the ordi nance. But 2 of the Supreme Court judges held that the title ‘Notification of the Making of Ordinances’ did not indicate that an ordinance had been made. I am glad to note from his reaction that Senator Byrne is as bewildered as I am that that heading of that notice in the Gazette is not as clear as day to everybody that an ordinance has been made. I do not want to impugn any more than is necessary the reasoning of the judges of the Full Court. All I want to say is that they arrived at a decision which it must be conceded was based on highly technical grounds and which, to most people, was highly surprising. This is the basis on which Senator James McClelland came into this chamber and, with all the panache that he has in making sanctimonious criticism of the Attorney-General and the Government, accused the Government of ineptitude. The other reason found by one of the judges was that the notification in the Gazette that copies could be purchased through the mail from the Assistant Director of the Australian Government Publishing Service at a Post Office box number in Canberra or over the counter from the AGPS Book Centre in Canberra did not satisfy the requirement that there must be an indication of the place where the ordinance could be obtained or purchased.
– I should think so.
– Senator Cavanagh said that he should think so. I wonder whether he would have thought of any such proposition before having read this judgment.
– Because he did not think of it does not make it any the less wrong now.
– The Opposition is accusing the Government or its officers of ineptitude, yet this is something of which nobody would have thought, least of all Senator Georges.
– If I want one from where can I get it?
– If Senator Cavanagh wants one he can apply to the Assistant Director of the Australian Government Publishing Service at the box number listed or he can get it over the counter from the AGPS Book Centre in Canberra. Is Senator Cavanagh so unintelligent that he would not be able to twig on to the fact, after having already seen ‘Australian Government Publishing Service’ in clear print, that the initials ‘AGPS’ refer to the Australian Government Publishing Services?
– I live 1,000 miles away from Canberra.
– That has nothing to do with the decision. If Senator Cavanagh reads the decision he will understand that it was argued that the letters AGPS do not indicate the place where copies of the ordinance may be obtained, despite the fact that the address given is ‘AGPS Book Centre, Canberra’. The meaning of the letters AGPS is clearly spelt out in the line above as being the Australian Government Publishing Services. That is an indication of the extreme technicality of the reasoning of the Supreme Court. But that was the decision of the Supreme Court.
– Is the honourable senator questioning it?
– Yes, I am questioning it. 1 am entitled to question it. I do not want to impugn the legal ability or reasoning of the judges concerned, but I do want to point out that their decision was a highly technical one and one which nobody had thought of putting forward previously, despite the fact that some fairly competent counsel have practised in the Supreme Court of the Australian Capital Territory over the years. This applies not only to legislation of the Australian Capital Territory but also to all regulations throughout Australia. It is a point that has escaped the attention of every Queen’s Counsel in Australia for 32 years.
– And the Regulations and Ordinances Committee, of which Senator Cavanagh is a member.
– And the Regulations and Ordinances Committee, yes. All I am doing is pointing up the highly technical nature of the decision of the Supreme Court that the legislation is invalid. That is a highly relevant matter at a time when we have been asked, as a Parliament, to validate ordinances which have breached.
Unfortunately in the practical affairs of government it is inevitable that situations of this type will arise from time to time. When they do it is incumbent upon the Parliament and the responsible Govern ment to bring forward reasonable legislation to cope with them. It seems to me that there is no alternative but to take this action in a situation where the rights and obligations of thousands of people have been affected over a period of 30 years or more. People have acted on the assumption that these laws were correct. Rights and obligations of citizens have been the subject of a multitude of legal decisions. People have been subjected to penalties or have benefited by the payment of moneys. In other words they have enjoyed rights as well as obligations under countless ordinances and regulations. Therefore, the clear obligation of this Parliament is to render certain what has, on a very technical matter, been thrown into uncertainty.
The ACTING DEPUTY PRESIDENT (Senator Wood) - I call Senator Keeffe.
– Mr Acting Deputy President-
The ACTING DEPUTY PRESIDENT - No, I am sorry, the call will go to Senator Byrne.
– I thought that I was listed as the next speaker.
The ACTING DEPUTY PRESIDENT - Yes, you are but an honourable senator from another Party rose. Senator James McClelland has spoken from the honourable senator’s party.
– I regret your attitude, Mr Acting Deputy President.
The ACTING DEPUTY PRESIDENT - Senator Keeffe says that he regrets my attitude. I resent that remark. I am trying to be fair. Senator James McClelland has spoken on behalf of the Australian Labor Party and Senator Durack has spoken on behalf of the Government. It is quite true, Senator Keeffe, that you are on the list of speakers. When Senator Byrne stood on behalf of the Australian Democratic Labor Party I thought it right that an honourable senator from that Party should speak. I do not know what honourable senators intend to do until they stand. I want honourable senators to realise that when I am in the chair there is no personal animosity towards any honourable senators when I call an honourable senator. I call Senator Byrne.
– I think that it is important in relation to a matter of such consequence that the attitude of the component parties in the Senate should be disclosed as early as possible so that the Senate will know the disposition of members of the parties in their approach to this very important matter. I am, and I think the Senate is, indebted to Senator Durack for his scholarly analyses of the whole situation which is involved in the invalidation of the particular ordinance and the consequence that flows on to other ordinances in the Australian Capital Territory and for his historical references to similar situations that have arisen elsewhere. Senator Murphy said that it is strange that great questions are often decided on small matters and sometimes involve inconspicuous people. That is very true. It is also extraordinary how history has a habit of repeating tself. On this occasion we face a situation in which an ordinance which was subject to disallowance in this place was not disallowed and was promulgated. It turns out to have been incorrectly promulgated and therefore has been invalidated by the courts.
I do not agree with that judicial deci sion. On the contrary, I feel that it is not improbable that had the matter gone to a higher court the decision might have been overruled. But we face the situation as it is and the Government must move with all speed to correct the consequences of such a decision involving as it does the life, property and welfare of people innocently involved in what has been an administrative mistake. This situation recalled to me a similar situation that arose many years ago when I was in the Senate on the last occasion. I have taken the trouble to go back and look at the parliamentary records of that incident because it has an uncanny parallel to the present situation. Senator Wright who is sitting at the table will recall this incident because he was involved in it as a member - a most valuable and effective one - of the Regulations and Ordinances Committee-
– Was he a rebel in those days?
– Senator Wright has always been an intellectual rebel and sometimes - not always - a political rebel. Senator Wright, on recollection and reference. will probably recall the incident. It involved regulations purporting to be made under the Air Force Act 1923-1956 and statutory rules governing the operation of Air Force canteens. I will read what happened from the parliamentary Hansard of that time when it was found necessary to introduce a Bill because of the situation that had arisen. Senator O’sullivan of Queensland who was the then AttorneyGeneral had this to say in his speech on the Air Force (Canteens) Bill 1957:
The purpose of this bill is to validate the Air Force (Canteens) Regulations, which became void on 10th October, 1957, because they had not been tabled in the Parliament.
The Regulations, being Statutory Rules 1957, No. 48, were made by the Governor-General on 31st August, 1957, and came into operation on the following day, 1st September, 1957. Section 48 (1.) of the Acts Interpretation Act requires, amongst other things, that regulations should be laid before each House of Parliament within fifteen sitting days of that House after the making of the regulations, and sub-section (3.) provides that if any regulations are not laid before each House in accordance with sub-section (1.), they shall be void and of no effect. The Air Force (Canteens) Regulations, through a departmental oversight, were not tabled within the time prescribed by law, and consequently they ceased to exist as valid law from and including 11th October, 1957. I mention here that, owing to the frequent occasions on which regulations had previously been omitted to be tabled, my department undertook, some ten years ago, the responsibility for tabling statutory rules. This is the first time since then that an omission has occurred. The administrative procedure for tabling has been further strengthened, and it is highly unlikely that a similar omission will occur in the future.
The regulations under consideration replaced a previous set of regulations, . . .
The Attorney-General then continued-
– Who was he?
– He was Senator O’sullivan. He continued:
The omission to table was only recently noticed, but the Royal Australian Air Force Canteens Service Board, as constituted under the lapsed regulations, has been carrying on its activities under the statutory authority that the regulations purport to provide. It is essential, therefore, that remedial action be taken to replace the statutory authority that has lapsed. ‘Retrospective legislation is necessary and I am advised by my department, and concur in the advice, that the proper method of approaching the problem is by act of Parliament and not by a fresh set of regulations which, through the necessity for retrospective operation, could not be made consistently with section 48 of the Acts Interpretation Act. The regulations were avoided by act of Parliament, and as the law at present stands they must be restored by the same means
Firstly, there are some lessons to be learnt from that. When the Attorney-General (Senator Greenwood) and his Department is charged, and charged in a particularly violent manner, with gross administrative incompetence, it is interesting to recall that these situations in the mass of administrative detail can occur. The one referred to there was a serious one. But it was pointed out that it was the first time that anything of that nature had occurred in many years. Whether there was any departmental failure on this occasion is quite another matter because, as has been pointed out, the decision of their Honours was on a highly technical point. I strongly doubt whether anybody would charge administrative incompetence against the Department where the basis of the matter rested finally on the judicial attitude to a highly technical departure from a requirement in a statute or in an ordinance under a statute. Therefore, I think that firstly it is salutary to make this comment, based upon what I read of the history of the other matter: This is something that is likely to occur and that has occurred in the past. Of course, the second point is that the Air Force Canteens Regulations which were the ones in question and which became involved were regulations which imposed certain duties and created certain rights in relation to the conduct of canteens. A Board was created and the power was conferred on that Board to maintain and operate the canteens service and to do these things:
In other words, that statutory rule gave an opportunity for the creation of a multitude of legal relationships and legal situations. Of course, the moment that this statutory rule was found not to have been tabled and so ipso facto inoperative and invalid, those legal relationships aggregating over the years, acted upon, affecting the lives of people who had committed their future, money and talents, came under grave doubt. It was therefore necessary for the Government to move quickly to validate the ordinances and to put those people in the position in which they would have been had the ordinance originally been tabled in the Parliament as it should have been to comply with the statute. In the first place I think it must be made clear - the Attorney-General and Senator Durack have attemped to make this clear but apparently there is still a misconception - what is the difference between retrospective legislation and the retrospective validation of legislation.
While this misapprehension occurs there will be considerable concern as to the effect of this Act in its retrospective application. After all, if I make up my mind on 1st January to create a legal situation and if I discover on 1st July that due to some technical defect I have not done so, I then set out to establish the position as it was intended to be on 1st January and as those who thought that it had been established had acted in pursuance of it in the intervening time. That is a validation procedure. But if I do not make up my mind until 1st July to create a legal situation, and having done that I then purport to make it operate as from 1st January of that year, that is a retrospective enactment. These things are altogether different. Obviously in this case this is purely a validation of an intention manifest at the time which by an operative misprocedure was not validly executed. When the statute caveat was brought into this place to validate these regulations relating to the Air Force canteens which, as I say, due to tabling were found to be invalid, the Act went on in these terms:
An Act relating to the Air Force (Canteens) Regulations.
Honourable senators will remember that the regulations purported to operate originally under the statutory rule as from 31st August of that year. Section 3 of the Act states:
The Air Force (Canteens) Regulations (being Statutory Rules 1957, No. 148) are declared to be, and at all times on and after the first day of September, One thousand nine hundred and fiftyseven, to have been, of full force and effect, notwithstanding that they have not been laid before each House of Parliament in accordance with sub-section (1.) of section forty-eight of the Acts Interpretation Act 1901-1950.
This is precisely the position in which we find ourselves today. In 1957, an ordinance having been declared to be invalid for a reason other than the reason now before us, the Parliament for good and sufficient reasons found it necessary to introduce a validating Act and specified that it should operate as if the original ordinance had been validly presented and was validly operating.
An interesting debate occurred in the course of the presentation of that Bill. I had the pleasure of participating in it. After some minor research I discovered in a book by the late Mr Herbert Morrison - I think he became Lord Morrison - or the late Lord Attlee that a similar position had arisen in the House of Commons during the war, when it was decided to consolidate the fire-fighting regulations of the British Isles and particularly Scotland. It was a period of the war when Britain was virtually on her knees and large areas were in flames. It was decided to bring in a short ‘Bill and then to have more extensive and more detailed regulations. By an oversight the regulations were not tabled in the House. As Lord Morrison said, this was not noticed by members of the House. It was not noticed by any peer. He then went on to say - and this is perhaps not altogether expected - that it was not noticed by the Press. Of course as a result of that oversight the regulations were invalid and it was necessary to introduce a Bill to validate them. The term is not used that it was an ex post facto validation. In Lord Morrison’s book he refers to indemnity. It was necessary to bring in an indemnity, which was virtually the same thing. In other words, one indemnifies against the consequences of validating, which removes the undesirable consequence of the original invalidation.
We have 2 examples here. One is from the House of Commons which considered that this was the most proper procedure. Even though this was done in the most dire days of Britain it had to be done in democratic form. The Minister profusely and even obsequiously apologised to the House of Commons but action was taken by validating in a retrospective manner, precisely as this Act purports to do and as the Air Force (Canteens) Act did in 1957 as I pointed out earlier. The Air Force (Canteens) Regulations of 1957 purported to create rights, liabilities and responsibilities as do the ordinances which we are now trying to resurrect into legal, viable form. When that Bill came before this place it was not opposed by the Opposition. It was not opposed by Senator McKenna who was perhaps one of the most distinguished lawyers who has sat in this place. He was then Leader of the Australian Labor Party Opposition. He saw the point of the measure. He supported it. He asked for some qualifications about the actual content of the regulation but there was no dispute about the process of validation. Obviously that was accepted throughout the chamber as desirable, necessary, prudent and the only effective process. Therefore I am at some loss to understand the concern which is manifest in this case.
Today we are inclined to look at the rights of small groups in the community which seek to challenge in one way or another the ordinary processes of the community. Equally we are inclined to overlook trespass to the rights of the great numbers of people who are affected by such actions. What has been presented by the Opposition on this occasion is only another manifestation of this type of thing. I could imagine circumstances in which, if this Bill were not presented quickly, actions would lie against otherwise innocent people who in all good faith had gone about their duties and now could find themselves subject to action at law for wrongful arrest, false imprisonment or something else. I could imagine an impediment to plaintiffs in civil actions. For example, if there happened to be an ordinance in the Australian Capital Territory relating to the protection of machinery, and in a master and servant action a plaintiff alleged that a piece of machinery was not protected and therefore the master was in violation of an ordinance, such a claim would not now be available to him if the ordinance in question had been declared inoperative or invalid. In other words, the availability of statutory negligence would not be a cause of action which would be normally available to him and it would now be denied. As I see it, a whole series of consequences could flow from the action contemplated and the point of view propounded by members of the Australian Labor Party.
For those reasons the Australian Democratic Labor Party, as it did on the procedural motions, supports the rapid presentation of this Bill. We support the validation of that great inchoate body of ordinances not altogether known and certainly not known in detail. It would take a tremendous amount of time to dissect and establish the ordinances if that were the procedure to be relied upon. This is a blanket validation which will give the proclamation of all ordinances which may have been proclaimed in a now legally insufficient form. This Bill will give those ordinances that sufficiency of proclamation to comply with the requirements of the statute. The members of my Party think that this is a prudent, wise and just step. For those reasons we will oppose the amendment which will be moved during the Committee stage and which has been propounded by the Opposition. We support the Bill.
– I rise to support the amendment which will be moved by my colleague Senator James McClelland. I am rather amazed at some of the statements which were made by Senator Durack in his long, waffling address to the Senate and in the somewhat hysterical, historical address which was delivered by Senator Byrne. Senator Durack went to great pains to point out that some of these ordinances had been apparently out of order - I use layman’s terms - for some years. He went on to blame the Labor Government for allowing this to happen. This is very much like the small boy who whistles in the dark: He wants to make a noise to cover his own mistakes and fears. Senator Durack also said that, in his memory, this was the third occasion on which this chamber had been called upon to pass validating legislation, lt occurs to me that, if it were not for their parliamentary salaries, most lawyers on the Government side of the chamber would have difficulty in earning a living. I do not agree with Senator Byrne’s description of Senator Durack’s address to this chamber as a scholarly analysis.
The points that have been raised, very validly, by my colleague - the availability of the Gazette and whether it could be comprehended by people - I think were covered by one of the Government’s supporters in another place when he spoke yesterday, and I believe that his words deserve quoting in this context. I refer to Mr Killen, the Minister for the Navy prior to the accession to power of the present Prime Minister (Mr McMahon). This is what he said:
I come to the Ordinance itself which has led to the distress - I use that term with some feeling - in which this Parliament and the country find themselves. The Ordinance has a frugality of expression that almost borders on the incomprehensible. For example, it states that copies of it may be obtained from a Government publishing officer, P.O. Box 84, Canberra. I can understand that. It goes on to state that a copy, can be obtained ‘over the counter from the AGPS book centres’. This is all very fine for those who are moving daily in the area where this jargon is used. May I ask those responsible this question - and the ultimate responsibility of course must be taken by the Government, because this is where there is a repository of responsibility in these matters - what on earth could the AGPS be to a person who had no connection with it?
Another Liberal member interjected and said that it could mean greater public schools. It is obvious that whilst some Government supporters may apologise for the actions of the Government and state these things in fairly clear terms, other Government supporters are equally as misled as are we on this side of the chamber who complain about the Government’s actions. The Aboriginals themselves also have complained. The final appeal made by Mr Killen in the other place was:
The last thing I want to say is this: I make an appeal, a simple appeal, to the Government and to all the Ministers responsible in this matter. I hope that we will have the sense of grace to say that we do not propose to persist with any prosecutions in this matter. It was an inoperative ordinance, not an invalid one. Nevertheless I do not think that we do credit to ourselves or do credit to the traditions of the parliamentary system if we say: ‘Well, so what? All sorts of thing flowed from it, therefore we propose to get our pound of flesh.’ What is to be gained by this? Is the stature of anyone among us to be raised? Is the Government to be vindicated by pursuing such a course. Would the Government be chastised if it said: ‘Well, we concede that there is a difficulty here.’ My view is that the Government’s, and more particularly, I believe, the Parliament’s status and prestige would be enhanced if we could in a corporate fashion say: ‘With good will, a mistake was made. We are determined to try to make amends and the only sensible way, in which we believe we can do that is to hold out a hand to you and to say that we do not propose to proceed further with these prosecutions.’
There is a former Minister of the Crown, a Government supporter, who adopts that enlightened attitude which is consistent with the attitude being adopted by the Opposition.
Let us go back and trace some of the history of this matter. Government speakers and others who speak in support of the Government remind me of the colonials of old. The people involved are black and you are out to get them. You do not care whether you have to pursue them to the gaol doors and close the locks yourselves. The history of the ‘embassy’ in front of Parliament House began on 26th January of this year, the day on which the Prime Minister said that he would bring down so-called enlightened legislation on the land rights of Aborigines. In fact, the legislation did nothing at all. It was not what the Aborigines wanted, and it was not what every fair thinking Australian wanted. But the Prime Minister was able to throw up a smoke screen and confuse some of the people some of the time but not all of the people all of the time.
In order to get this matter in its proper sequence, I cannot do better than to quote what my colleague in another place, Mr Beazley, said. He said:
I return to the’ present Minister for the Interior and the extraordinary statement that the situation in front of Parliament House involved ‘left wing unions and radicals’. Heavens above, the ‘Embassy’ had been there for about 7 months. I do not know what figures from left wing unions and radicals appeared there, but I would not have thought it would have mattered very much if people from left wing unions and radicals, or for that matter right wing unions, had appeared there. The ^Embassy’ was a tolerated demonstration oyer a period of 7 months. Subsequently a pretence was made to the public in a series of utterances that what had been discovered . . .
The ACTING DEPUTY PRESIDENT (Senator Withers) - Senator, I do not wish to interrupt, but would you relate your remarks to the Bill before the Senate?
– I am. Mr Acting Deputy President, with ail due respect, I join issue with you there because I believe that the reason for the rush to get this Ordinance tidied up is merely to catch the Aboriginals, as well as some other people. There are 27 Aboriginals involved. Atn I right in suggesting that? Am I right in relating that to the Bill, Mr Acting Deputy President?
The ACTING DEPUTY PRESIDENTI did not think that the debate was about that. But carry on. I will keep an ear open. I do not see any relevance so far.
– ‘Perhaps it might assist if I ask for leave to incorporate in Hansard that part of Mr Beazley’s speech, reported in the House of Representatives Hansard of 15th August, 1972, from the top of page 20 down to the end of the first paragraph in the second column on page 20. Then my continuity will be kept up.
The ACTING DEPUTY PRESIDENT - ils leave granted? There being no objection, leave is granted. (The document read as follows) - . . was that the Commonwealth Government lacked legal power to cope with squatters on public parks. When the case was before Mr Justice Fox,” he pointed out that the Commonwealth had at all times had power on an application to the court to remove the tent and that the Commissioner of Police and the Minister admitted that the Commonwealth had this power. The Minister did not seek that court procedure to remove the tent - as he wanted to - because there would have been a court case in which public arguments would have been put and reported. He wanted to avoid 2 things. He wanted to avoid a debate in the Parliament and he wanted to avoid any sort of discussion in the courts of civil rights.
The reaction of the Minister, apart from the completely unnecessary clashes which took place, has been to bring down a new ordinance - one which is unnecessary, as Mr Justice Fox pointed out, because of the already existing powers of the Commonwealth, but one in which significant changes in the law were made and made in a particlar direction to which all parties represented on the Senate committee which examines regulations and ordinances have always taken exception, namely, the procedure set out in section 8c (1.) which reads: 8c. - (1.) An officer of the Department of the Interior authorised in writing by the Minister may, by instrument in writing under his hand. certify that land described’ in the instrument or by reference to a plan on or annexed to the instrument is unleased land that -
The old ordinance defined the city limits of Canberra quite clearly. We now have a situation in which the Minister may empower an officer and that officer by instrument in writing can declare that an area comes within the scope of the regulations. No process of publicity is necessary. It is just this exchange of defined power to one exercised from an instrument in writing which gives force and possible objectionable character to the regulations about which people may not know. The situation will be worse when this procedure is in force than what existed before the regulations were gazetted. The regulations were gazetted and they transformed the state of the law. Erroneous statements were given out from the Government to justify the promulgation of this ordinance to the effect that the Commonwealth lacked the power to prevent trespass. Therefore, the people occupying the land might have assumed that they had a legal right to be there - Since the Government itself suggested there was no law. In 40 minutes after a change in the law people outside were expected to know the law, and then the proceedings of ejection took place. This is what led to the clash.
– Now I return to the question of the availability of the Gazette. The first occasion on which this matter arose was in July, and the attitude adopted then was unparliamentary and undemocratic. It had been forecast beforehand that the Minister for the Interior (Mr Hunt), who merely takes his orders from the Prime Minister, anyway, would wait until the Parliament was no longer in session before making any move to implement an ordinance to shift the Aborigines from the embassy’ in front of Parliament House. The Labor Party, by a series of petitions presented in both Houses of the Parliament prior to the end of the last sessional period, indicated very clearly what its thoughts on the matter were at that time, as did many residents of this city.
We believe that the people living across the road had a real and genuine reason for demonstrating. The basic things for which they were looking were land rights in accordance with their requirements, better health, education, employment and housing facilities for themselves and for their people. The Aborigines were causing problems to no-one. In fact, the only vocal member on the Government side in this House who objected and tried to have the Aborigines removed was the gentleman who was sitting in the chair before you occupied it, Mr Acting Deputy President. I refer to Senator Wood.
It was significant that other members of the Government Parties did not make very much noise about the ‘embassy’. However, that was not to be; the Aborigines were not to be left to make a peaceful demonstration. At the first opportunity, when members of the Opposition were scattered far and wide around Australia, on 2 occasions large numbers of police were brought in to remove the Aborigines. It is equally significant that when it was found in the courts a few days ago that the Ordinance was inoperative, some rush drafting of legislation was done to ensure that the Ordinance was made to operate for this specific purpose. At 1 a.m. on a very cold, wet and windy winter’s morning 50 policemen moved in to move 7 people. Again on this occasion it was done in the dark of night after both Houses of Parliament had risen, and the Attorney-General (Senator Greenwood), together with the Minister for the Interior and the Prime Minister, must take full responsibility for such a stealthy act.
The other important point I want to make at this time arises from a letter that was forwarded to my colleague, Senator McLaren, by the Minister for the Interior on 13th September 1972, in reply to a telegram dated 20th July 1972. You will know, Mr Acting Deputy President, that these days Ministers, if they answer questions or correspondence at all, take a very lengthy period of time to do so. The Minister said:
The amendments to the Trespass on Commonwealth Lands Ordinance are designed to prevent anyone camping on unleased land in the city area of Canberra unless that land has been approved for camping. These amendments were considered necessary because the laws of the Australian Capital Territory, unlike the laws of most Australian municipalities, did not previously proscribe camping.
That is a wrong interpretation, in any case. People who read Hansard will know that my colleague in another place, Mr Beazley, has pointed out very clearly that there are in existence laws under which certain action could have been taken, and that statement is backed by none other than a distinguished judge. The Minister went on to say:
Although the situation was highlighted by the campers outside Parliament House, it was the general situation which was of concern and it was necessary to protect Commonwealth lands from a situation in which minority groups can effectively take over land and thereby prevent its use by the community as a whole. It should be borne in mind that the campers had been in residence for almost six months, and could be regarded as having had a ‘fair go’ in publicising their cause, and that there had been considerable notice of the Government’s proposed amendment to the Trespass on Commonwealth Lands Ordinance. The Ordinance was discussed by A.C.T. Advisory Council on 13th June 1972 at which time it became public.
Incidentally, the Minister might have been broadminded enough to have seen fit to say that the Australian Capital Territory Advisory Council rejected the proposed ordinance. He went on to say:
Indeed I saw representatives of the campers and had several discussions in which I made it clear that the Government was firm in its decision to remove the campers. I also made this quite clear on radio and television and in the Press. On Monday, 17th July 1972, the Monday before the Ordinance was gazetted, a senior officer of the A.C.T. Police visited the campers and informed them that the Government had approved the law. He advised them as to the effect of the law and offered any further assistance that they might require.
Out they were not given copies of the proposed ordinance at that time. It is significant that a member of this chamber - I refer to the Independent senator from Western Australia - said that it would not be of much use to give the Aborigines a copy of the ‘Gazette’ because they would not be able to read it. I remind him that almost all of the youngsters who camped across the road in front of Parliament House had at least a secondary education; many of them had reached matriculation standard; and several of them had commenced university courses.
– How many of them were Aborigines?
– ‘Under the definition of ‘Aboriginal’ which is accepted in the Australian community, anybody who has some Aboriginal blood and claims to be an Aboriginal is an Aboriginal. So, if Senator Webster wants to go into shades of colour he will find that he is mistaken in respect of any person with Aboriginal blood who claims to be an Aboriginal. I suggest that, if he has not anything more sensible than that to say, he refrain from interjecting.
– There was only one Aboriginal over there who erected a tent, and he arrived in a Jaguar.
– Did you lend yours to him?
– Senator Webster does not like Aborigines having cars.
– No, they are not supposed to have cars; they are supposed to walk, ride pushbikes or hitch-hike, in the view of Senator Webster. But I happen to be talking to the intelligent senators on the Government side at the moment, so I will eliminate him from this discussion.
If this Government had any compassion at all it would pay compensation to the people who were injured in the confrontations between police and occupants of the embassy on the first 2 occasions. On the third occasion there was no violence; but there was damage to clothing, to tents and to persons in the first 2 confrontations. However, the matter goes even further than that, because as a result of the fact that the Ordinance is inoperative a lass named Barbara Russell today languishes in gaol. I understand from the discussion that occurred in another place that she will be required to obtain senior legal advice at her own cost before she has any chance of getting out of gaol, even though she may be there incorrectly.
– Of what was she convicted?
– I presume that Senator Rae has read it all in the newspapers. I do not intend to waste my debating time giving him the details of the case. I refer now to the question I asked in this chamber this morning about how much public money had been involved in paying overtime to policemen and meeting all the other subsidiary costs. I thought that the Minister concerned, knowing that this debate was coming on today, would have made a real effort to obtain the information. I am led to believe that some thousands of dollars is involved. I do not know why this cover-up should go on. Either the Minister is completely irresponsible and does not want the information to be exposed to the public, or the amount of taxpayers’ money expended is so great that he does not want it known before election day. One would think that anyone with responsibility and in a ministerial position these days, with the political situation as delicate as it is at the moment, would be inclined to obtain as soon as possible information such as that I have legitimately requested.
The whole history of this matter is wrapped up in a number of other things. It goes way beyond the lawns in front of Parliament House. The land rights issue is a very major one for the Aborigines. We had a kick-back in the Palm Island area last weekend, with a tragic happening there. In several States and in the Territories controlled by the Commonwealth things are screaming out loud to be done; but the Government adopts the ostrich-like attitude of burying its head in the sand and hoping that these things will not be found out. It has even reduced the debate on this measure today because lengthy debate would expose many other things and speakers from our side of the chamber would have more time to elaborate on them.
I wish to make a quick reference to Palm Island. I realise that Senator Bonner had published in the local Press in north Queensland yesterday a statement denying some of the things I said. I do not blame him for that because the wording of the statement was not his own and obviously had been-
– Mr Acting Deputy President, I rise to order. I draw your attention to the relevance rule. I forget the number of the standing order, but I will look it up if you wish.
The ACTING DEPUTY PRESIDENT (Senator Withers) - Order! I have already drawn Senator Keeffe’s attention to the matter of relevance, and I assure Senator Rae that I am keeping an eye on Senator Keeffe.
– I will finish the sentence on which I had started when the point of order was taken. I regret that Senator Bonner saw fit to make that statement which, quite obviously, was drafted for him and published on his behalf by either the Minister for Aboriginal and
Island Affairs in Queensland or the State Director of Aboriginal and Island Affairs. It certainly was not in Senator Bonner’s language. I am not being funny when I say that.
The ACTING DEPUTY PRESIDENT - Order! I ask the honourable senator to come back to the Bill.
– I rise to order. I claim to have been misrepresented-
The ACTING DEPUTY PRESIDENT - Order! If the honourable senator claims to have been misrepresented, he will have to wait until Senator Keeffe resumes his seat and then make a personal explanation. I again ask Senator Keeffe to come back to the Bill.
– I do not propose to speak for a great deal longer, but there are a number of matters about which I must speak. I refer now to a document published by the Australian Council of Churches. I do not think it can be looked upon as a dangerous magazine.
The ACTING DEPUTY PRESIDENT - Order! It is relevant to the Bill, is it?
– It is relevant to the Bill because it deals with the rights of Aborigines, the very rights for which these people were fighting in occupying land in front of Parliament House. Faith Bandler, who is a highly respected leader in the Aboriginal groups, had this to say:
Now the Commonwealth has power to override the States. It’s not so long ago, together with Denis Walker and Pastor Nicholls - now Sir Douglas Nicholls- and a few other people, that we had an interview with Mr McMahon. Unlike his predecessors, 1 thought him a very insecure little man. At least this is how he behaved in our presence, and we were very particular about his opinion of the Queensland Act. And in the course of discussion, which wasn’t the pleasantest I assure y,ou, I reminded Mr McMahon that Mr Gorton, in January 1971, in Singapore, said that if the Queensland Government didn’t remove its discriminatory legislation they would move in and do it for them. We told Mr McMahon this, but as you might remember he told us never to believe what we read in the Press.
The ACTING DEPUTY PRESIDENT - Order! Senator Keeffe, you are a long way from the Bill. Please come back to it.
– 4 contend that what I am referring to is the reason for Aboriginal people occupying the area outside Parliament House. They did that in order to get this story over and to highlight and publicise their requirements. I contend that what I am saying is completely consistent with the terms of the Bill. Faith Bandler continued:
He accused us of being liars in actual fact But the point I wanted to make is this: That the Commonwealth has got power to move in and override the State, and ‘I think this ought to be borne in mind when we are talking about land rights for Aborigines.
The issue of land rights was probably the major reason why the Aboriginal embassy was estabished. As the result of a badly drafted ordinance that the Government introduced, the embassy was removed. In the dark of night, with the aid of torches and matches, you redrafted the ordinance and when you thought everybody was in bed, you sneaked out again-
The ACTING DEPUTY PRESIDENT (Senator Withers) - Order! Senator, I think that you should refer to the Government and not to me. I take it that you are addressing the Chair, and the Chair did not do these things.
– I am not referring to the Chair.
The ACTING DEPUTY PRESIDENT - You should refer to the Government.
– I thought that if one used the descriptive word ‘you’ it referred to your Government.
The ACTING DEPUTY PRESIDENT - No. It refers to the Chair.
– The Chair is dissociating itself from the action of the Government.
– I am sorry if you do not wish to be associated with the Government, Mr Acting Deputy President.
The ACTING DEPUTY PRESIDENT - If you continue on that track, Senator Keeffe, you will be in trouble. I am trying to point out to you that the Chair is not responsible for these things. I thought that you were addressing the Chair. Therefore, you should not say that the Chair has done this or that it has done something else. You should use the term the Government*.
– Thank you. I draw to the attention of the Senate these paragraphs from the Charter of the United Nations because I think they are relevant to the discussion in which we are now engaged. The United Nations Charter states:
One of the purposes expressed in the United Nations Charter is ‘To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’.
If the people demonstrating across the road had been impoverished farmers who were not able to sell their grain, butter, sugar or the various other commodities produced from farms, not only would they not have been removed but also the Government would have arranged for them to have air conditioned accommodation on the lawns opposite Parliament House. If a Labor government had been in power, the members of the Opposition - that is, the members of the present Government - probably would have built this accommodation with their own hands and with their own money.
Let us consider this matter from a factual point of view. Our Aborigines represent less than 1 per cent of the total population of Australia. Because they are black and have been deprived for more than 200 years, in true colonial style, every member on the Government side - there is no exception - is prepared to continue to deprive them even of the right to demonstrate for what they believe to be justice.
– What about the treatment of Aborigines in Western Australia?
– In Western Australia the Aborigines under the new legislation will be .looked after better than Aborigines in any other State with the possible exception of South Australia. I suggest that the honourable senator should not interject along those lines. The declaration by the General Assembly of the United Nations made in 1963 states:
Article 1. Discrimination between human beings on the grounds of race, color or ethnic origin is an offence to human dignity and shall be condemned as a denial of the principles of the Charter of the United Nations, as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human
Rights, as an obstacle to friendly and peaceful relations among nations and as a fact capable of disturbing peace and security among peoples.
Article 2. <1) No State, institution, group or individual shall make any discrimination whatsoever in matters of human rights and fundamental freedoms in the treatment of persons, groups or persons or institutions on the grounds of race, color or ethnic origin.
No State shall encourage, advocate or lend its support through police action or otherwise, to any discrimination based on race, color or ethnic origin by any group, institution or individual.
The Government has botched up the Ordinance. The Attorney-General is probably one of the worst Attorneys-General this country has ever seen politically and in respect of his ability to do his job. I say that with respect to the man himself because he has his weaknesses and I suppose they should not be held eternally against him. There is a basic weakness in the actual policy of this Government - the Government you support, Mr Acting Deputy President - in the way in which it has violated on racial grounds, I contend, those last 2 clauses of the United Nations Charter. The only decent way and the only compassionate way out of the mess in which the Government now finds itself is to accept the amendment which is to be moved by the Opposition.
-! wish to make a personal explanation.
The ACTING DEPUTY PRESIDENT (Senator Withers) - Order! Does the honourable senator claim to have been misrepresented?
– I have been misrepresented by Senator Keeffe. He said that the statement that I gave to the Townsville Bulletin* was drafted by the Queeusland Minister for Aboriginal Affairs. That is untrue. Also, I have taken exception to some of the things which the honourable senator has said in the north, particularly in relation to a matter that is rather painful to me. The honourable senator used the death of a very fine gentleman to gain political notoriety for himself. I think that is disgusting.
– My remarks have been preceded by a personal explanation from Senator Bonner. 1 feel that is perhaps a good way to commence to address myself to this subject because it is perfectly clear that the whole of the atti- tude adopted by the Opposition in relation to this matter is a sham and an opportunity for vulgar abuse, personal abuse and totally unfounded comment. That we should have had to spend so much time debating a question which I would have thought in the circumstances would be regarded by any responsible Party as a matter which was so obviously in need of immediate attention shows the attitude of the Opposition. In the interests of the people of the Australian Capital Territory and of the other Territories of the Commonwealth which may be affected, I would have thought that the Opposition would have done what is could to expedite some action to provide for the people of those areas a set of laws which at the moment are in doubt.
But what does the Opposition wish to do? Its members wish to talk about something to do with the United Nations, something to do with human rights but nothing to do with the human rights. Senator Keeffe, of the people of the Australian Capital Territory; nothing to do with their rights to have a body of laws available to them to protect them, to provide their rights for them, to provide protection from the crimes which may otherwise be committed against them and to provide the organisation of their business affairs, such as hire purchase, and matrimonial affairs, such as legal aid, together with all the other matters which have been referred to already in this debate as coming within the area of the rights and privileges provided by the ordinances and regulations which at the moment are subject to doubt in respect of the people of the Australian Capital Territory and the other Territories. But, oh no; the Opposition is not concerned with them.
We have heard concern expressed by Senator Keeffe and others on questions which are totally irrelevant to the major question before the Senate. That major questiion is whether, having found that there is a very minor defect in the procedure which has been adopted in this country for 32 years in the form of notification in the Commonwealth Gazette, we should correct that defect to provide a body of law for the Commonwealth Territories. That is the question. It is not a question to do with the Aboriginal embassy or whether the rights of Australian Aborigines are being infringed in some way. lt is not an opportunity to throw abuse at Senator Bonner, to whom I pay tribute for the work he has done on behalf of the Aboriginal people of Australia as well as on behalf of the rest of the Australian population.
Senator Bonner, unlike some others, does not distinguish between races in the way in which some members of the Labor Party are prepared to adopt a racial approach to their attitudes in relation to these matters. I deplore the introduction of a racial approach to the problems of the people of Australia, whatever the colour of the skin of those people may be or whatever their origins may be. They are Australian people whether they come from Greece or South Africa or whether their ancestors were born in Australia before white man visited the country or whether they came from Timbucktoo. If they are residents of Australia, they are Australians and should not be looked at from the point of view advocated by Senator Keeffe and others as being entitled to some distinction in their rights in comparison with the rights available to others. 1 think that what the Labor Party is doing in relation to this matter has been well covered by a number of speakers on this side of the chamber. I wish particularly to adopt what Senator Durack has said and briefly in support of his remarks to look at what the amendment proposes. The Bill provides validation for what is a very minor point of defect in the procedure adopted by succeeding Australian governments, be they Liberal, Labor, or Liberal Party-Country Party coalitions as has been the case now for 23 years; and long may that situation continue. That procedure is not something novel. The suggestion that the Attorney-General has been in some way deficient is shown up for the sham that it is when we look at the Hansard of last night and see what Senator Murphy said. As appears at page 753 of Hansard Senator Murphy was making out the case that the Attorney-General should have been warned that a point of this sort was likely to be taken, that there was some reason to have suspicion as to whether there was a defect in the form of notification that had been used for the past 32 years. Senator Murphy said:
I well recall being associated with a case in the
Supreme Court of the Australian Capital Territory several years ago where this very complaint was made. The attention of the Government should have been drawn to it. As a matter of common sense and regard for the rights of citizens, the Government should have cleaned up the procedure.
I asked by way of interjection: ‘What was the decision of the court?’ Senator Murphy continued:
You can make your own speech, senator. My recollection of the matter is that the court thought that it was satisfactory in the sense of not breaching the law.
It hardly supports the view being put by Senator Murphy at that time that the Government should have been warned that there were some defects when the court itself, according to his recollection, found that there was not a defect. When we look at the sort of case put forward about this being retrospective legislation we find that the Attorney-General, by way of answer to a question by me at question time yesterday and by way of statement in the debate which has taken place, pointed to the difference between retrospective legislation and validating legislation. This, clearly, is validating legislation, lt is not retrospective legislation in the normal sense of retrospective legislation.
Perhaps I could repeat the difference between the 2 types of legislation because it seems to have escaped a number of senators who have addressed themselves to this question. Where there has been a body of law of one sort or another which people have believed was valid legislation, which people have acted under and acted upon, and subsequently it is found there has been some defect in that legislation, it is, as has been pointed out. particularly by Senator Durack, common throughout the parliaments of this country and other countries that action is taken to validate the acts of people taken under what everyone, until the date of the decision of the court, believed was valid legislation.
– Are you saying that that applies to the criminal law, that if a person escaped on some fine point of construction of a section they would go back and make all the acts which occurred criminal although at the time they were innocent?
– If we take the example of a government of the same party as Senator Murphy who has just interjected - the Labor Government in Tasmania - apparently that is the attitude which is adopted, because not only in relation to the matter which I have mentioned - the validating of the action of the HydroElectric Commission which possibly had infringed the penal sections of the National Parklands Act in Tasmania by continuing unauthorised activities in a protected area, but also on other occasions the Tasmanian Government has taken similar action, lt has waited until Parliament has risen to introduce delegated legislation, regulations which had been subject to debate within the Parliament. The 65 miles per hour speed limit was one such instance. The Government waited until the Parliament rose at Christmas time to introduce the regulations. The matter had been fully debated in the Parliament and, the Government not having succeeded in relation to one disallowance, waited until the Parliament rose and introduced the measure with the full knowledge that the Parliament would not be able to sit again for several months to disallow the regulation which the Government had just introduced. That is the sort of action which has been taken by the Labor Government in Tasmania.
In relation to the criminal law I have, so far as I can recall, recollection of validating legislation being taken in relation to traffic regulations and other types of regulations such as that. There was a recent one, an amendment to validate in a case which I know very well because the amendment was taken after I had put up the submission and before the Court’s decision was given. An amendment was made by the Labor Government in Tasmania to correct the defect. That is perhaps an answer to Senator Murphy. Perhaps I could now go on to the amendment which states:
Nothing in this Act affects in any way the rights and liabilities in civil and criminal law of persons charged with offences -
Then follow these glorious words: arising out of incidents outside Parliament House, Canberra, on Thursday, 20th July 1972, and Sunday, 23rd July 1972, where those charges or incidents arise out of or are related to the purported notification in the Gazette of 20th July 1972 of the Trespass on Commonwealth Lands Ordinance 1972.
What on earth does that mean? Perhaps that is the first question we should consider. Already there has been some debate in relation to that. Quite obviously one of the things it could mean is that if someone were charged with a traffic offence, with driving under the influence or driving negligently and knocking someone down, or even if there were a civil action arising out of a motor vehicle accident which might have occurred in the vicinity of the events referred to in the amendment, all those things could be covered in the same sort of way as the Labor Party would protect ils friends and supporters by putting the unions above the law. It is similar in its construction to the type of legislation which was proposed and Which has been supported on various occasions in this chamber by the Australian Labor Party. There is a clear attempt to be able to provide selectively for its friends but to disregard entirely the interests of others. In relation to putting unions above the law, I find it necessary to dwell for a moment on the similarity between the type of approach adopted there of saying that in relation to any civil or criminal action which might arise out of something connected with an industrial dispute - for instance, someone driving his car past the Building Workers Union celebrations in Sydney-
– What has something in Sydney to do with this?
– There is a similarity of approach.
– Why not talk about the Australian Capital Territory?
– I know that the honourable senator may have some difficulty in understanding the relevance, but I shall continue to make the point that I made a moment ago, that there is a similarity of approach between putting unions above the law and putting some of the people whom the Labor Party not only encouraged but probably instigated into actions which have led them into the sort of trouble in which they eventually found themselves. There is a clear similarity because the sort of action that is taken is designed to put union members above the law and to take away the rights of other people in relation to what happens during an industrial dispute - in other words, to encourage lawlessness without any sort of responsibility. If a union secretary decides to take action in the streets of Sydney to stir up an industrial dispute and someone is injured or a car is damaged and overturned in the riot that takes place, according to the Labor Party no action could be taken. So, too would the Labor Party impose on the people of the Australian Capital Territory a similar type of provision in relation to the Trespass on Commonwealth Lands Ordinance where it wishes to ensure that its friends are not liable to either criminal or civil action arising out of what happened on 20th and 23rd July. The similarity of the selective attitude of the Labor Party in respect of both these matters is a matter which I believe is important for the Senate to bear in mind when it is considering this amendment, because it is so typical. The Labor Party looks after its friends; it selectively distinguishes between those who are to be given rights and those who are not.
– You are looking after the Government’s friends at the moment are you not? Where is your report from the Securities and Exchange Committee?
– That is the inane sort of remark that I would expect from you, senator.
– Are you looking after your friends?
– I could reply, senator, in a way which I do not think would serve the purpose of either the Senate Select Committee on Securities and Exchange or the Senate with any benefit whatever. I shall not reply to that interjection other than simply to say that I flatly deny the imputation. I challenge you, Senator McClelland, to say that outside this chamber.
The ACTING DEPUTY PRESIDENT (Senator Wood)- Order! The Senate Select Committee on Securities and Exchange has nothing to do with this piece of legislation.
– Let us go back and look at the amendment, the selective amendment. the amendment designed to help friends. Perhaps behind it there was some intent to influence people but 1 doubt it. I should think it was put up only to win friends or to help friends. Obviously its effect would relate to the people who were engaged in what apparently were unlawful activities except for the fact that there was some defect in the notification of a large number of ordinances. It would protect them from the normal consequences of their action. 1 think it is relevant to bear in mind what 1 believe the Attorney-General has already said, that is, that the people charged with any offences arising out of the incidents on 20th and 23rd July are not charged under the Trespass on Commonwealth Lands Ordinance. They are charged with offences which, in every sense of the word, would have been offences at any time irrespective of some defect relating to the Trespass on Commonwealth Lands Ordinance. They are charged with assault, with using indecent language and with using threatening langauge, or changes similar to that which have nothing whatsoever to do with the Trespass on Commonwealth Lands Ordinance. It is stretching the imagination to suggest that we should give protection to those people for that type of activity and, presumably, even go further and give protection in respect of civil wrongs which they may have committed during that time and deprive other people of any rights they may have in any action for assault. Yet the Australian Labor Party would have us take that action.
– Mr Deputy President, I rise to a point of order on the basis that the honourable senator’s arguments are not relevant. Whatever the Australian Council of Trade Unions and the unions are doing about trade union rights and the rights of individuals has no connection with the matter at hand. You have drawn the attention of honourable senators on this side to matters that were not relevant and 1 ask you to do the same in the case of the present speaker.
– Speaking to the point of order, Mr Deputy President, I think that the right of honourable senators to draw appropriate analogies where a principle is involved is at the very heart of proper debate. I understand that Senator Rae is emphasising the point that there is a selectivity in the approach embodied in the foreshadowed amendment. This is an approach which would seek to put certain persons in a favoured position in contrast to other persons when the same general legal consequence applies to all. When you single out some people obviously you are favouring them. I submit that Senator Rae is entitled to use that argument and to equate it with the argument that is well known to be part of Australian Labor Party policy, seeing that the amendment has been moved on behalf of that Party, that is, that unions and unionists are to be put above the law in the case of industrial trouble and that they are not to be responsible for any actions they take which cause injury to individuals. That is the broad principle. Why should not an honourable senator be able to draw that analogy? T think the point is a very important one that nothing should be said or done by you, Sir, by way of ruling which would prevent proper debate with proper examples and proper analogies being available to make the point.
– It is impossible, Mr Deputy President, to disagree with the argument advanced by the AttorneyGeneral and Senator Rae’s right to put it. I realise that the analogy which Senator Rae is drawing is an extremely strong one. The report of the Townsville meeting of December last year is a matter which has a direct bearing on the debate now taking place, lt is almost impossible to draw a more accurate or a more correct analogy. If we look carefully at what was said-
– Mr Deputy President, speaking to the point of order, Senator Bishop has indicated that, in view of what is being done by speakers supporting the Government to waste the remainder of the quarter of an hour, he wishes to withdraw his point of order.
The ACTING DEPUTY PRESIDENT (Senator Wood) - Order! During debate it is possible oft times for people to make reference to some situation which can give point to their argument and which relates to the legislation before the Senate. The thing is that honourable senators should not get too wide. They should confine their remarks as much as possible to the legislation before the chamber.
– It is unfortunate that apparently Senator Bishop was not listening to what was going on because he was about 5 minutes behind time. I had passed from what he referred to but I will go back and repeat it if he likes so that he will get a better understanding of it.
– Why not talk about the Bill?
– I am talking about the amendment, Senator McClelland, which I think is relevant.
– The amendment has not been moved yet.
– The amendment has been foreshadowed. The point I was making-
– You are gagging the debate and you are steamrollering it.
– I had not noticed that I was steamrollering anything. I thought that 1 was addressing myself to both the Bill and the foreshadowed amendment and I will continue to do so. I was in the course earlier of pointing out the difference between validating legislation and retrospective legislation, something which apparently entirely escapes Senator Murphy and some other honourable senators. Of course, that is not surprising. I have described validating legislation. Turning to retrospective legislation, all members of the Senate Standing Committee on Regulations and Ordinances are only too well aware of this type of legislation. It is a matter which concerns them greatly. That Committee of this Senate is specifically responsible for ensuring that in relation to delegated legislation the retrospectivity aspect of it is taken into account when considering whether an ordinance should be allowed or disallowed. I was amazed to hear during the debate on this Bill in another place the complaint made by a member of the Opposition that one of the disgraceful aspects about delegated legislation was that there was no opportunity for it to be reviewed in any way at all. Obviously that person had not only not heard of the Senate Standing Committee on Regulations and Ordinances, he had never heard of the fact that ordinances are tabled and may be disallowed by the House. I would have thought that that was particularly relevant to consideration of the question of the propriety or otherwise of the Government’s use of ordinances and regulations to legislate for the people of the ACT and the other Commonwealth Territories.
Retrospective legislation is legislation introduced de novo and then its operation is dated back to a period of time before the date on which it becomes operative. That is the sort of thing to which Senator Durack referred as having been done by the Labor Party when it was in government in Western Australia. It decided to make its legislation retrospective in operation and adversely affect the interests of an individual, or more than one individual. Retrospectivity is something which always should be approached with caution. I certainly would join with Senator Murphy if he were correct in saying that this is a matter in which retrospectivity is the significant element; but it is not. This is validating legislation designed to create the situation which everybody believed to be the situation and which has been the situation since 1940. Therefore the foreshadowed amendment is spurious. It is an attempt to protect the interests of a few friends of the Labor Party. It is typical of the selectivity of the approach of protecting your friends and not protecting the general public which we have come to believe is typical of the approach which we might anticipate in the event of the Labor Party ever being in a position to implement any of its spurious ideas in this Commonwealth Parliament.
– lt is the height of impudence for Senator Rae to accuse any political party or any senators of endeavouring to protect their friend’s when he, by his actions, has engaged in suppressing a report in order to protect his friends.
– I take a point of order. Standing order 418 reads:
No senator shall use offensive words against either House of Parliament or any member of such House.
It states words which are well known to this chamber. The words have been referred to a number of times in debate recently as a result of the repeated use of offensive language in this chamber by members of the Labor Party. Senator Murphy has tried, by the use of a gratuitous insult to me, unfounded in any way whatsoever, to make a charge which he should withdraw. 1 claim that in using the words ‘suppressing a report’ he has used offensive language. I ask that the words be withdrawn.
– I rise on the point of order. 1 think this is a most serious accusation. Standing order 418 says that imputation of improper motives is highly disorderly. To say of a senator who is a chairman of a committee that he has suppressed a report in order to protect his friends is an accusation of utmost impropriety, and the Senate would be weak if it did not take action in order to protect its members.
– I wish to speak to the point of order. During the debate Senator Rae has used as an argument in favour of his case, and has been supported by the Attorney-General on a point of order, the statement that he was entitled to draw analogies with the conduct of the Opposition and to say that the Opposition was, by its amendments moved in this place, protecting its friends. The Attorney-General said that it was open to senators to use such an argument to accuse Opposition senators of using procedures to engage in conduct, in relation to parliamentary matters, which was aimed at protecting their friends. If senators opposite are entitled to use the argument that action which is taken by senators on this side is for the purpose of protecting their friends - whether it is the moving of an amendment or the suppressing of a report by the chairman of a committee - we are entitled to use the same analogy and to say that a report of a committee is being suppressed by a senator for the reason which he has alleged that amendments have been moved by Opposition senators - to protect the persons whom they represent, whether they are Aborigines or members of the Australian Council of Trade Unions or trade unions. I submit that if it is good for the goose it is good for the gander. The Attorney-General supported the argument that an analogy may be used. I support that. The Opposition is equally entitled to make that analogy.
– I rise on the point of order. Senator Rae made imputations against me in his opening remarks. When
Senator Bonner made a personal explanation he cast aspersions on me. I was noi thin skinned enough to seek a withdrawal. I think Senator Murphy was perfectly justified in making the statement that he made. The point of order raised by Senator Rae, supported by the Attorney-General, has no substance.
– I wish to intervene. I think the language used by Senator Murphy not only imputes improper motives to Senator Rae but also implies that if Senator Rae can suppress a report he must be in cahoots with other members of the Committee. I wonder whether Senator Murphy realises that some of his colleagues are members of that Committee. I doubt whether a chairman of a committee could suppress a report. I think the committee would suppress it, if it is being suppressed. I think it is highly improper for a senator to accuse another senator of acting improperly. I submit that you, Mr Acting Deputy President, should direct Senator Murphy to withdraw his remark.
The ACTING DEPUTY PRESIDENT (Senator Wood) - The words complained of are ‘suppressing a report’. I know the attitude of Senator Murphy to the dignity of Parliament. I know that words are sometimes used in the heat of the moment. I ask him to withdraw those words, in view of the objection taken by Senator Rae.
– Mr Acting Deputy President, in deference to your request, I will withdraw those words. In view of the statements made by Senator Rae about the motivation of the senators, I submit that the accusations made in good faith by Senator Rae should be taken up at a subsequent stage. The BUI is an extremely important one which affects the rights of persons. There is no question as to what ought to be done about civil rights, if civil rights are being affected. It is generally agreed that they ought to be dealt with and attended to.
It is part of the generally accepted code of the rule of law, which is understood by all who have an acquaintance with it, that legislatures must abstain from retroactive laws in the criminal sphere, lt is stated in the Universal Declaration of Human Rights and in all the great political conventions that no person shall be liable to prosecution for an act or omission which at the time of its commission was not punishable in law. The Government is about to breach that principle and no amount of talk about validating, instead of retrospective legislation, can obscure the fact that the court has said not that the legislation was invalid but that until the Bill is passed the actions which were committed by people - whether they were committed last week, 12 months ago or 2 years ago - which were innocent actions will become criminal actions retrospectively. That is the plain truth. The Bill is not validating at all. If that is not retroactive criminal law nothing is. No amount of casuistry that comes from the DLP or glossing over from others will obscure that fact.
The reason why the Liberal-Country Party is going down the drain is that it does not understand the significance of the great statements which were its own Party policy. If it had enough understanding and if it had decent leadership, instead of panicking and being hysterical it would have introduced a Bill which would have validated the civil matters and it would have said: ‘No matter how much we despise those people who were convicted under the National Service Act or under some of these regulations or ordinances, the rule of law is so important that we are prepared to let these few thousand or hundred people go.’ That has happened in the United States where at times tens of thousands of people who have committed dreadful crimes - not petty offences as most of these are - went free. The Government would have said: ‘We will maintain that rule of law and we will vindicate it even in respect of the people with whom we do not agree’. In that way it would have gained the approval of the people of Australia. But it does not have that understanding. It has lost the spirit which once motivated it. It carries on with a kind of hysterical reaction. It wants to push the Bill through today because a few people who are in gaol might issue writs of habeas corpus and if they had a chance they would be freed by the courts. Today they are innocent. At 9.45 p.m. they will not be innocent, when the Government has its way. The Government will take the Bill over to the Governor-General in the middle of the night. I suppose that is what will be done. The Governor-General will be kept up until the Bill is taken across to him in a taxi so that the case of the poor woman who is having her writ of habeas corpus heard tomorrow to entitle her to be free will not be successful because the Government is rushing the Bill through. Is that the way in which the Liberal Government thinks that the rule of law should be administered? Whenever a case such as this arises will it abandon the principles for which it stands? It is not prepared to work out a sensible piece of legislation which will protect civil rights and maintain the rule of law.
The ACTING DEPUTY PRESIDENT (Senator Wood)- Order! The time allotted for the second reading of the Bill having expired, I put the question:
That the Bill be now read a second time.
The Senate divided. (The Acting Deputy President - Senator Wood)
Majority . . . . 6
Question so resolved in the affirmative.
Bill read a second time.
Clause 1 agreed to.
Clause 2 (Commencement).
– Clause 2 states:
This Act shall come into operation on the day on which it receives the Royal Assent.
That is not always provided in legislation. Sometimes Bills come into operation when proclaimed. The importance of this clause flows from what has been provided for in the Bill and the way in which it affects the rights of persons. I ask: What provision is being made for persons such as the one who appeared before Mr Justice Meares today and made a habeas corpus application? In the exigencies of all that has happened I can only repeat the information I have received and cannot warrant for its accuracy.I am informed that the Commonwealth said that it could not go on with the matter but insisted on having the Solicitor-General to represent it.
– That is nothing like what happened.
– For whatever reasons, the case was not dealt with today. It is to be dealt with tomorrow morning. Whatever may be the facts of that case, it does not matter. The point is that there may be people in custody throughout the country who want to act on the basis that today they are lawfully entitled to be free. If they cannot establish that, it is the end of the matter. But let us assume that there are people who could establish, as of tonight, that they are entitled to their freedom and who, as of tomorrow are going to start proceedings. What is to happen to them? Is this legislation to be rushed through tonight or is some reasonable opportunity to be given to the people who have commenced proceedings to have their cases heard? Is the great writ of habeas corpus to be set at nought? Does the Commonwealth propose to delay proceedings or rush this legislation through the Parliament in the middle of the night so that a citizen who considers that he is improperly in custody will be deprived of his right to be heard? If the Bill is passed tonight, is the Government going to prevent persons from pursuing applications which they may have commenced before the courts in which they have a claim of legal right under a writ of habeas corpus or similar great remedies for civil rights? Is the Commonwealth going to act in such a way that it will defeat the cases which have been instituted today or yesterday by people who consider that they have a right to a habeas corpus? I would like to ask whether clause 2 is intended to be used in that way.
– Clause 2 is in the Bill for the reason that anyone would assume it would be in the Bill. That is to say when the Bill shall become law and the date from which it shall operate. It is intended that when this Bill is passed by the 2 Houses of Parliament it shall be submitted to the Governor-General as soon as he is able to receive it and to append his signature to it, provided that it is a proper Bill for him to append his signature to. It shall become law as from that date. There is nothing strange in that. It is consistent with the view that the Government has taken that there was a situation revealed by the judgment of the Supreme Court of the Australian Capital Territory on Tuesday which created a chaotic situation.
I think that the position is fairly summed up in the headline of the local afternoon newspaper in the Australian Capital Territory which states:
Another day of legal chaos.
That is a fair journalistic description of the sort of situation which now prevails in the courts. Of course, the Government desires to end that as soon as possible. Therefore, it is appropriate that as soon as the GovernorGeneral has assented to the Bill it shall become law. That is the obvious, straightforward purpose of Clause 2. If Senator Murphy wants to make particular provisions for particular people he can ask the Senate to agree with him by moving an amendment. But as far as the Government is concerned, its approach to this whole situation created by the Supreme Court judgment is to restore the status quo and to restore it as soon as possible. Let us return to the position that people believed was the law and believed were the rights and obligations of people and laws as speedily as possible. I believe that that is a consistent position.
Some mention has been made of Miss Russell and the application which was made to, I think, Mr Justice Meares of the Supreme Court of New South Wales this afternoon. The Commonwealth was interested in the matter because I gather that counsel acting for Miss Russell made an application just before lunch. The judge indicated that he wanted to know the Commonwealth’s attitude. The Commonwealth Crown Solicitor in Sydney was approached by direction of the judge. Of course, he referred that request to Canberra. I discussed the matter with the Solicitor-General and he then communicated with the judge, and, I understand, with counsel. If the Crown Solicitor was not able to reach counsel, he consulted with the judge. I am unable to say what has happened since that time, except that I believe an application is to be made tomorrow if this Bill has not passed the Senate. If it is passed by the Senate and has been approved then the application will not be proceeded with. Quite obviously, it would not be proceeded with because if this Bill is passed and becomes law, people who were in gaol and who may be let out of gaol for 2 or 3 hours if a habeas corpus application had been taken out earlier would immediately be compelled to return to gaol. To me it is an unreasonable proposition to suggest that we do not take cognisance of that factual situation - and that is the factual situation.
The. lady in question went to gaol on Monday of this week quite deliberately, as she reported to the newspapers, because she accepted a principle that she would not pay a fine. She said that she would prefer to go to gaol. It is a curious concept that having decided to go to gaol as a matter of principle on Monday a case is now being made for her that she should be let out because of some technical defect in the law.
– Does what the Attorney-General (Senator Greenwood) has said mean that the Government is taking the attitude that it proposes to make no provision for the people who might have instituted applications for habeas corpus - persons who at the time they instituted them are entitled to be free?
Is the, Government to wait upon the Opposition to draft some amendment to present to the Senate in order to protect the rights of those persons?
Sitting suspended from 6.0 to 8.0 p.m.
Clause agreed to.
Clause 3 (Notification of certain Ordinances, regulations and other instruments)
– I ask the Attorney-General (Senator Greenwood) who is in charge of this Bill: In the light of what has been said in this debate about the dire effects on the administration of justice in the Australian Capital Territory, if this Bill is not passed - the effects on civil rights and on the administration of the criminal lav? - has the Attorney-General any sort of schedule or statement which would inform the Senate of just what is involved? Has be a list of ordinances or regulations which are invalidated if the decision of the Supreme Court of the Australian Capital Territory is held to be a correct decision? For example, has he any list of the people who are at present in gaol and of the offences for which they are in gaol? In other words, what would be the effect on the citizenry of this Territory if this Bill which he calls a validating Bil!, were not passed by this Parliament?
– The immensity of Senator James McClelland’s question is such that it would take many weeks to provide that information. The honourable senator win appreciate that the court declared that the reason for the inoperativeness of the particular ordinance which it was considering was that there had not been a proper notification. There were 2 grounds upon which that was stated. To check the position in order to obtain a complete list of ordinances and also of all the regulations one would have to go through the Gazettes and examine minutely each Gazette to see whether it was possessed of the same vice as the Gazette notices which were under consideration by the Supreme Court. The assumption has been made that they are. A number have been looked at in which that conclusion has been verified. But no complete list has been taken out and no attempt has been made to take out a complete list because it has been felt that that would be an enormous, time consuming task. The effective need was to get validating legislation. The efforts of the officers of my Department and of the Office of Parliamentary Counsel have been directed unsparingly to that end in the past 2 days. Therefore I am not able to supply the list which the honourable senator seeks.
I feel that the broad pattern is disclosed by some examples. We know that the Court of Petty Sessions has not been able to sit for the last 2 days. This position has been described by one newspaper as legal chaos. It certainly is unsatisfactory - whether or not chaos is the correct description - to have a court of petty sessions which is unable to continue because of doubt as to whether the magistrate has been properly appointed. There must be some doubt as to whether he has been validly appointed. There must be some doubt as to whether orders made over the last 30 years by magistrates who may not have been validly appointed have any weight. It concerns not only people in gaol, people currently awaiting charges or people who have paid fines but also people who are presumably, receiving maintenance payments pursuant to orders made in the Court of Petty Sessions.
Various civil orders have been made. If a doubt exists - the Supreme Court judgment suggests that there is a doubt - surely the important thing is to put people into the position which they believed they were in. This is an approach which commended itself to the Senate with regard to all the matrimonial causes orders made in South Australia and New South Wales as a result of the decisions of the High Court some time ago. It was accepted that that was a proper thing to do. This is a comparable situation. I am at a loss to understand why the Opposition does not regard this also as a proper thing to do.
– The Opposition, because of some of the remarks made during the course of this debate, has been put into the position of appearing to be on the side of chaos. As I said during the debate on the second reading yesterday, we are not gloating over the predicament in which the Government finds itself. We do not suggest that this is a position which cannot arise in the best organised of communities. We do not wish to be thought to be obstructive or attempting to perpetuate the chaos or disarray in which law enforcement in this Territory finds itself. But surely some of the extreme examples which have been adverted to or suggested by some of the speakers in this debate could be illustrated. For instance, is it impossible for the Attorney-General (Senator Greenwood) to tell us what prisoners are in the gaols of this country at the present time on really serious or heinous offences, such as the crimes of murder or rape, who would be, in effect, entitled to their liberty if the present situation persisted in which doubt is cast on all decisions of the courts made, say, within the last 20 years?
Is it too much to expect the Government to illustrate the lurid case which it has made out about what the Opposition is trying to do - in what we consider to be a legitimate defence of civil liberties - and to give examples of the dire results if, in fact, the dragnet operation of this Bill takes effect. Cannot the Attorney-General give us a few examples of desperate criminals who would be set at large if this validating Bill did not go through the Parliament? Are we just talking in generalistations? Are these just scare stories? In fact, are there no dire results flowing from the acceptance of the principle which we enunciate, that is, that what comes first is the protection of the principle that criminality cannot be created ex post facto. Surely it is not too much to ask the Attorney-General of the Commonwealth of Australia to give us some of these dire examples?
– There is a curious dichotomy in Senator James McClelland’s speech. During the debate on the second reading speech we have heard comments from honourable senators of the Opposition about the enormity of the Government’s mismanagement and that there has been a dreadful error. If there is any basis to that sort of allegation then obviously enormous consequences must flow from what has happened. I had assumed that that was accepted. I still think that it must be accepted. As I indicated we have some examples such as what has happened in relation to the Court of Petty Sessions. It only requires some reflection to appreciate what must be the consequences which flow from this if there are ordinances and regulations which are not operative. The Workmen’s Compensation Ordinance has been mentioned. I understand that that is one of the more recent ordinances and that it is highly likely to be covered by the decision of the Supreme Court. That means that obligations imposed by that legislation are not enforceable. It means that any rights which people have for inspection must be open to doubt. These are just some examples.
I do not know that we have desperate criminals - to use the colourful expession which was used by Senator James McClelland - who have been sentenced under the laws of the Australian Capital Territory and who are at present incarcerated in New South Wales gaols. If it were a matter of importance that could be ascertained. At the present time I do not know. But that has not been the area of Government concern. What we have been concerned to do is to put right and put beyond any legal doubt what people believed was the law. That is the purpose of this exercise. I am at a loss to understand the relevance to any point of the questions which Senator James McClelland is asking. I think that it goes without saying that an enormous problem which we are trying to improve has been created as a result of this decision. We want to resolve a doubt which has been thrown upon the situation. Of course, it is conceivable that the Supreme Court’s judgment, if it were to be challenged in the High Court, might be upset, but that would take time; and the important thing is for the Government to act responsibly and promptly, because 1 think that the promptness of the reaction is a measure of the responsibility and the way in which one views the situation.
– Evidently we are not to be given any chapter and verse to support what I can only repeat is the lurid picture of the consequences that flow from failure to validate what has been done under the supposed law of the Australian
Capital Territory. The Attorney-General must know perfectly well that nothing in the attitude of the Opposition has anything to do with any desire to prevent the workers compensation regulations from functioning in this Territory. Nothing in our attitude has anything to do with preventing the civil and criminal law of the Australian Capital Territory from functioning. We are concerned only with one central point, and I do not know how many times we have to say it in order to get this through to the Government. We are concerned to defend the principle that criminality cannot be created retroactively, and my question is limited to that. I am not concerned wilh suggesting that we want to hold up the proper functioning of the workers compensation legislation. Surely it is not too much to ask the AttorneyGeneral, who has Informed his mind on these questions, what is the actual threat contained in the amendment that we propose.
– Civil liability as against criminal liability.
– Yes. The civil liability that I am attempting to prevent from operating is limited to the people who were arrested in connection with this Aboriginal embassy. We are not suggesting for one moment that the question of civil liability should remain in doubt in this Territory. We are not suggesting for one moment that the workers compensation laws should cease to function. What we are concerned to know, to have some chapter and verse on, is what will be the dire effects in this community if the principle that we espouse is accepted by the Government, that is, that criminality should not be created retrospectively Am 1 to take it from the Attorney-General’s answer that he cannot give me any chapter and verse on this question?
– I am rather intrigued by a possibility, and Senator James McClelland may bc good enough to comment on this. Let us look at the question of civil liability. Let us mag.ine a common law action in which a plaintiff may be alleging, as part of the basis of his claim, a breach of statutory duty. Let us presume that there is an ordinance in the Australian Capital Territory which requires machinery to be fenced and that the only substantial cause of action say, by an injured worker who may have had his fingers or his arm amputated was a breach of statutory duty by the employer in not having the machinery fenced. If the ordinance requiring that is not validated and the accident has occurred, would not the plaintiff have his right of action either destroyed or gravely imperilled or limited? I do not know. That thought crosses my mind.
– I will answer that. There is nothing in our attitude that would suggest we are against the validation of ordinances or regulations to preserve those rights.
– 1 am talking about retrospectivity.
– Retrospectively, too. We are not opposed to legislation which operates retrospectively to preserve civil rights. What we are opposed to is legislation which operates retrospectively to make criminal acts which were not criminal when they were performed. This is a very narrow concept. It is one that we have reiterated over and over again. We certainly do not want to see dangerous machinery legislation invalidated for one moment. We do not want to have working men deprived of their rights because of some doubt about regulations of that nature and purport. Surely everything that we have said indicates that we do not attack this sort of thing. We are attempting to defend one narrow principle enshrined as a principle throughout the English speaking world and, that is - evidently I must say it again - that criminals cannot be created retrospectively. Certainly we want validated as soon as possible the legislation about which Senator Byrne talks or the legislation to which the AttorneyGeneral adverted. It should be perfectly clear from our proposed amendment that we are not attacking the idea of validating such legislation.
– Very briefly, as I understand it, the defect in the Australian Labor Party’s argument about retrospectivity is that it would be an evil law which took something which had been regarded as innocent in the past and on which people had acted in the belief of their innocence and retrospectively made it criminal. But I think that the Committee should remind itself that it was the belief of all the people in the past that the law existed and they well knew that the acts which they committed were illegal acts. That is quite clear.
– But they were not.
– It was their belief that they were illegal acts, because at that time it was the general belief that they were illegal acts.
– Belief in the law at the time.
– This was before the Ordinance.
– I have a lot of helpmates in this.
– They are not really helping you.
– No, and they are not helping themselves. As I understand the position, the question is whether the Ordinance was legal with regard to one specific thing. The question as to whether it was legal for the Aborigines to camp in their tents on the lawn is, as I understand it from the judgment, irrelevant, anyhow, because as I understand the judgment - I ask the lawyers to correct me if I am wrong - the judges ruled that the Commonwealth, being the owners of the land, had a continuous and full right to remove people from that land under the common law.
– That is not why they were prosecuted.
– That may or may not be so. I take it from the Opposition that this is so. Therefore, we do not have retrospectivity by telling people who believed that they were innocent that they are now guilty. These people knew that the law existed, and we are validating the law which they believed to be real at that time. The law applied in exactly the same way. If Senator James McClelland’s argument is correct, then the Labor Party must stand up now and say that the prosecutions which Labor’s former Attorney-General, Dr Evatt, brought against the miners in 1949, under what turned out to be invalid arbitration legislation which had to be validated, were wrong and that the legal action that was taken in this Parliament was retrospective. In point of fact, there is a series of parallel actions like the one we are considering. They happen continuously in every Parliament in the world. There is the greatest difference between retrospectivity and the validation of laws which people believed to be valid and under which they acted believing them to be valid.
– If I may, I will intervene briefly in this matter. I would be inclined to agree that there is a distinction between retrospective legislation in the narrow sense of the word and validating legislation. I believe that a distinction can be made there. But I do not know that having made that distinction I find it is very helpful in solving the sort of problem which I believe arises from some of the quasi criminal prosecutions which have taken place as a result of the regulations and ordinances which appear to have been improperly notified. As 1 understand the position of those who say - I am one of them - that the rule of law is something which ought to be followed, that there ought to be adherence to law and order in the strict sense of that term, one of the essential parts of this question is that the law should be followed at all times and on all occasions however awkward or uncomfortable or inconvenient it may be for the law to be followed. There may well be circumstances in which legislation must be validated owing to a technical imperfection in the manner in which it was enacted, proclaimed or notified. But the problem which I believe we face now is that at least some persons are in prison at present as a result of what appeared to be offences under ordinances which had been validly notified but which it now appears, as a result of the decision of the Supreme Court of the Australian Capital Territory, were not properly notified. I ask the AttorneyGeneral: Is it not a fact that there are persons in this category who have been in prison without lawfully being in prison and who remain in prison as a result of laws which, it now appears, are not properly laws of this country because of improper notification in the Gazette? Would the Attorney-General not agree that if one adheres to the rule of law, which means that one has to accept the law at any time with not only its advantages but also its disadvantages, h is a proper course of action for the Attorney-General on his own initiative to secure the release of those persons? If the Attorney-General is not prepared to agree, does he not concede that at present people are in prison as a result of an allegation that they committed offences which in fact were not offences at the time they committed them and which are not in fact offences now?
– Let me endeavour to put the position in language which to me is clear and which I hope can convey my meaning equally clearly to those listening. As a result of the inoperativeness of this Ordinance which was tested before the Supreme Court, there are other ordinances dating right back to 1940 which are likely to be. and one must assume to be, tainted with the same inoperativeness. In those circumstances it means that, ever since those ordinances purported to be the law, where people have been charged with offences created by those ordinances and they have gone to prison and served their sentences, or they have been convicted and fined and have paid their fines, those people would, on the argument which the Opposition is now raising, be entitled to say: ‘We should never have been in prison; we should never have had to pay fines. Does the Government intend to compensate us? What is our redress?’ That is what they could say. I ask honourable senators to consider the magnitude of the number of offences which have occurred and the number of persons concerned even in the Australian Capital Territory in the last 30 years. It would be an impossible task to seek out everybody and, following the Opposition’s view, to do justice to them on the basis that they were unlawfully convicted, fined or imprisoned. Of course, there are people who are at present in much the same position - people who either are currently serving sentences or are paying fines or awaiting charges. It may be said that these people should not now be proceeded against or that they should be reimbursed or recompensed for what has happened to them. That again is an enormous task. It is said that those people who were charged with the offences which occurred when tents were removed from outside Parliament House on 20lh
July and 23rd July - with assaulting the police, with hindering the police and with using indecent language - in some way ought not to be charged, prosecuted and possibly convicted; that they ought to be in some way exonerated. But for all I know - and I do not know the facts - there may be other people who, on those days or days in close proximity to those days, were charged with comparable offences - assaulting the police, hindering the police or using indecent language - in Civic Centre or at some other place in the Australian Capital Territory. Are they to be treated in the same way as the people who were in front of Parliament House, or are they to be left to be comprehended by the general validating legislation? These are some of the problems which are posed, and if one is to take in isolation this argument which the Opposition raises and give to it all the weight which the Opposition wants to give to it and then to accept on that premise that people were being charged with criminal offences when in fact, because the ordinances were inoperative, no offences were in existence, what one is doing is acknowledging a principle which, if equality means anything and if fairness means anything, must go right across the board. That is an irresponsible position to adoptThe purpose of validating legislation is to ensure that what the community believed to be the position continues to be the position. The essence of any validating legislation, I believe, is that it is made to apply fairly and squarely across the board and exceptions are not made.
– In entering this debate for the first time, I am wondering whether the AttorneyGeneral realises what the Opposition is thinking despite how often Opposition senators have expressed it. 1 do not know whether his statement is correct, that there is a question whether those who have been convicted under a law which has now been found not to be operative have any claim and whether they were unjustly convicted. I can recall many cases of conviction under a law as a result of which a penalty was paid and then, when someone had the initiative to appeal to the High Court, the High Court ruled that the law was invalid and quashed the conviction. But there was no question of wrongful conviction in previous cases. I can recall many prosecutions in the Arbitration Court against the trade union movement. The boilermakers case was one. When it was taken to the Privy Council, the Privy Council ruled that the powers of the Arbitration Court and the Arbitration Commission must be separated. But there was no question that those previously before the court had been wrongly convicted and that, if counsel had .taken the matter up in another case and the court was then of the same opinion as the court which upset the regulations, the ordinance or the Act, they would have been innocent of the charge that had been preferred against them.
– That was held to be not. valid legislation.
– That is so. It was inoperative legislation which had punitive sections which were applied prior to the decision that was upset. Another case that comes to mind is the James fruit case. There had been many convictions in respect of the sale of dried fruits prior to the James case, but there was no argument of wrongful conviction of those who were charged in the earlier cases. In this matter no-one is suggesting that all convictions under all the laws or regulations which have been enacted since 1904, although they may have been inoperative, were not proper convictions. But on this occasion when some doubt is cast upon the validity of these ordinances, since the lower court found on the evidence of the prosecution that someone had been guilty of an offence and imposed a conviction, the Supreme Court took a rather dim view of it. Not only did the Supreme Court dismiss the prosecution but, as I understand the position, it awarded half the costs to the defendants, which must be paid by the Commonwealth. What the Labor Party now says goes not to all previous decisions of the court but to one previous decision of the court. People were arrested. At the time they were arrested various charges were laid against them, some involving offences against the police. At the time the police took this action they had no authority, according to the law, to take it and so they themselves were guilty of assault. The police had no authority to take the action they took. These arrests were made in the belief that they were in accordance with the law. Between the time of arrest and coming to trial, the Full Court determined that the law was not operative. Surely justice will be done to these individuals only if they are not prosecuted.
Let me give an example: A fortnight ago a person could innocently have parked his car on unleased land. This was not an offence against the Commonwealth. As a result of the retrospective or validating legislation - whatever we call it - to be passed tonight that person will be subject to a charge in respect of an action which he took a fortnight ago and which was not then an offence. He acted perfectly innocently under the law of the Commonwealth a fortnight ago. By the passage of this legislation he may now be charged with an offence in respect of his actions then. I doubt - I would like to seek some lead from the legal fraternity on this question - whether a judge would convict a person of such an offence and whether, if the person was convicted, a penalty would be prescribed in respect of an action which at the time it was taken was not in breach of the law of the Commonwealth. To offend against the law, an intent must be present and if these-
– If it is not a breach, the person could not possibly be convicted.
– We suggest that when certain things happened when the Aboriginal embassy was removed, people took certain actions which were not in breach of any operative law-
– The honourable senator said that if the court found a breach had not occurred he did not think it would convict. If the court found that no breach occurred, it could not possibly convict.
– I agree with the honourable senator, but he is simply playing with words. What I am saying is this: If the court today heard a certain charge, under the existing Ordinance it would find that there was no breach of the law in respect of something which may have been done a fortnight ago. But looking at the case of the innocent individual who a fortnight ago did something which was not in breach of the law, we see that tomorrow, as a result of the passage of this legislation, the action of that individual will constitute a breach of Commonwealth law. That is what the Government is doing.
The ramifications are not as wide as everyone suggests. Workers compensation has been mentioned. Workers compensation is not paid under regulations. Workers compensation is a payment made under an Ac of this Parliament. We have-
– I would have thought that related to Commonwealth employees compensation. The Workmens Compensation Ordinance of the Australian Capital Territory is the law which regulates ordinary private employers.
– Yes. The AttorneyGeneral recalls to my mind that that is the legislation that applies. There may have been an incorrect notification in this respect, but that does not extend to cover the case mentioned by Senator Carrick of the employer who did not have a guard around machinery. An employee injured due to lack of that protection would have a claim under common law. If an accident occurred because a safety guard was absent from machinery, the injured party would not make a claim under workers compensation. I do acknowledge that liability of employers in the Australian Capital Territory would come under the ordinance mentioned by the Attorney-General. My opinion is that no-one as yet has said that this was not an operative regulation. We are of the opinion that as many other ordinances were notified in the same way as the ordinance on which the court based its findings those ordinances would be defective too.
We are saying that we acknowledge that what was thought to be the law for so long should remain the law. We acknowledge the need to make the regulations and ordinances operative. But today one person is in gaol and others are to be tried on charges in relation to acts which, at the time they committed them, were not in breach of any operative law of the Commonwealth. By our action tonight, if this legislation is passed what was not a breach of the law when it occurred will be made a breach of the law through this legislation.
The amendment foreshadowed by Senator James McClelland seeks to exempt from prosecution and penalty the persons in the category that I have mentioned. I ask the Attorney-General to consider the amendment seriously. I cannot understand why it is insisted with hatred that 12 persons or 27 persons or the number who were present at the Aboriginal embassy on the occasion in question should be prosecuted. Why is prosecution of these people insisted upon? This seems an act of vengeance to me because the removal of the embassy was resisted. Does this matter in the eyes of the law? Will the good government of the Commonwealth be affected if these people are not prosecuted or are not sent to gaol? We seek by our amendment to save not only those persons that I have mentioned but also others who may be caught in this net.
– I am not a lawyer. I am just an ordinary Australian senator and the way 1 view the situation is that 1 do not think any of these people mentioned would have been charged if they had been average law abiding citizens.
– You reckon they ought to be put. in leg irons, senator?
– 1 feel that if I were in the situation where a police constable came to me, at any place in any situation, and asked me to move on because I was breaking the law. I would believe him. 1 would nol ask him for a copy of the law to which he was referring. I would probably go home and ring up the Department in question. As I said in this chamber last night by way of an interjection which was taken the wrong way, if the law was produced to me, in all probability as an ordinary citizen 1 would not be able to read and understand it. The law is expressed in such legal terms. I feel that the average citizen knows when he is breaking the law.
In my opinion, the Aboriginal embassy in front of Parliament House was a complete eyesore. If I had had anything to do with it the Aboriginal embassy would have been moved purely for health reasons. The embassy had no hygiene facilities at all. I feel that this Government was very lenient in allowing it to remain there for so long. The judgment of the Full Court - and I have been through it very carefully - states that the Court had not found the Ordinance to be invalid but merely inoperative. The Ordinance was found to be inoperative purely and simply because it was not notified in the right way. The Ordinance was not put on a board in the right way. If all ordinances were put up on a board, Parliament House would not be big enough to hold them all and no-one would know where to look for the particular ordinance they were seeking.
If the officers of the police force had done what might be thought to be the right thing and had taken with them copies of the Ordinance and handed them out, and had said: This is the Ordinance; we are moving you off this land’, any average citizen in those circumstances would have known that he should not be there. If the police had asked these people to move and they had moved quietly, no charges of any kind would have been laid against them. This situation arises purely because of the incorrect way in which notification of ordinances was carried out over the years under the various governments - not just the present Government. People have accepted the past procedure as correct. I do not think one should throw stones in the direction of the present AttorneyGeneral. He is acting only on the basis of something produced by somebody behind the scenes. He believes that in all probability what is presented to him is correct. This is a situation that has been going on for years. We are all in exactly the same position.
When this Bill has been passed tonight we will not know that it will stand up until it has been tested before a judge of the Supreme Court. It might be found that there is something wrong with this law, but I suggest that we can do no more than accept that the Bill has been given deep and due consideration. We hope that it is right. As a Parliament we have to do our job and pass the Bill, in the same way as parliaments have been doing for 32 years. In the past we have enacted legislation which we felt was right and were told was right, but we can all make mistakes and we should admit that we do make mistakes. In this instance we are trying to correct a mistake that has been made evidently for 32 years by various govern ments, it is such a simple thing to correct this mistake with this legislation. Let this law then stand until someone challenges it. If it then becomes necessary to change the law again we will do so, and we will continue to change it if necessary.
When one considers all the laws that the Parliament has made over the years one could think that they should all be put on the scrap heap and burned. But how are we to know whether a law is valid or invalid? We are not all lawyers. Only the judges who have these matters pointed out to them are in a position to decide on the validity of a law. In my opinion this whole situation has been brought about by the fact that Aborigines put an embassy on the lawns in front of Parliament House. That was a disgraceful exhibition. I feel that they gained nothing by doing that and that they would have gained much by quietly approaching the right department or members of Parliament and asking them to act on their behalf. So far as I am concerned the situation is as it should be. We are endeavouring to correct a fault in the law. I am opposed to the amendment and propose to support the Bill.
– I suppose it is a sign of the broadening influence of this chamber on senators that Senator Negus has now widened his field of vision from the laws of succession, on which he has so often in the past treated us to his expertise, and has now offered us his views on the wider fields of jurisprudence. But despite the interesting propositions that he has put before us tonight, I should like to confine myself to the point which I raised earlier and to which I should like to return. I am afraid that it is a disgression from what we have been hearing.
– I thought Senator Negus spoke a lot of common sense.
– Do you really think so?
– When he said we should burn all laws? He missed out on saying that we should burn all lawyers.
– And when he said blacks cannot read?
– -They cannot work.
– Senator Gair tells us that they cannot work.
– They sat over there for weeks and did nothing. They should be in a Main Roads camp doing a job of work.
– First we are told by Senator Negus that they cannot read and now we are told by Senator Gair that they cannot work. I do not know whether Senator Bonner will feel inclined to make any contribution on this subject. I think that if I were Senator Bonner I would be tempted-
– When they can sit over there for some weeks and do nothing there is something wrong.
– I think it is a reflection on the Aboriginal people to say that they sit around in Main Roads camps doing nothing, in the same way as I believe that Senator Negus’s statement that they could not read was a gross reflection on them. It is gratifying that there are honourable senators at least on this side of the chamber who are prepared to defend Aboriginal people, although not a single one opposite is prepared to do so.
– I object when one of your colleagues refers to us as blacks instead of as Aborigines. You are not very consistent in your consideration.
– I prefer not to get into a discussion with Senator Bonner. I should think that if he wishes to be offended he should be looking to people other than me to be offended by tonight. The matter that 1 should like to return to is one that I was raising earlier. It is a matter that I put to the Attorney-General and in respect of which I must confess that I have some sympathy for him. A number of matters were put to him but I do not think he dealt with all of them. 1 am not now debating the merits of the proposed amendment but I wish to refer to some matters that have been raised. As I understand the Attorney-General’s position, it is that a number of people have been dealt with in various ways so far as both the civil law and the criminal law are concerned and it would be unreasonable to suggest that these people should be compensated or otherwise given some advantage as a result of the improper notification of the ordinances and regulations in question. I suspect that a number of people would be compelled by this argument that there is validating legislation being intro duced which will come into effect within a short period after it was found that the ordinance was invalid and that it would be quite absurd to try to assess what amounts of compensation would be payable to persons who had served a term of imprisonment which is now over or had paid a fine before it was found that the legislation was invalid. That is not the matter to which I am addressing myself.
What concerns me is the situation of people who are at present in prison as a result of prosecutions under regulations or ordinances which, as of now, are inoperative. There are at least some persons, surely, at present in prison who have been dealt with in this way. I put it to the Attorney-General that if he is going to say that the rule of law should always apply and that in all circumstances the law should be carried out, whether it is convenient or inconvenient to carry out the law, we are faced with the situation that there are at this moment some people who are improperly imprisoned. I cannot see how any other conclusion can be reached. As at now some people are in gaol for the commission of an alleged offence which is not in fact an offence.
– How do they differ from people who were in gaol last week but who are now out?
– F thought I had explained. In my view it differs in this sense: We can say that once they have served their term of imprisonment and it is proposed to introduce validating legislation it would be a matter of some 48 hours only, or thereabouts, since it was known that the law was inoperative and therefore it would be fairly absurd to try to work out some sort of compensation. But I am talking about the people who are now in prison. I put it to the Attorney-General that he could not resist the conclusion that there are people at present who are improperly in prison. I suggest again to the Attorney-General that if he is going to stand by the rule of law and say that in all circumstances and at all times the law should be applied, he should explain how it i: that those people remain in prison and he does not issue a direction for their release.
– It appears to me that there is almost a philosophical situation in law which emerges in this discussion. Obedience to the law is usually maintained within the concept that there is a prevailing body of valid law and that the ordinary person is presumed to know that law. Ignorance of the law in itself is no defence to a prosecution for a breach of that law. That is .the social context in which the whole of our system of criminal jurisprudence operates, that persons are presumed to know the law. Therefore, if a person violates a law of which he is unaware, or a law which turns out >to be invalid, he is still presumed, in the context in which he sets himself against the body of law, to have known that there was such a body of operative law which affected him.
It appears to me that we must look at this matter in those circumstances and against that background, that a person perpetrates his offence against a commonly accepted social opinion that there is such a body of operative law, although subsequently it may turn out to have been invalidly proclaimed or inoperatively proclaimed. I think there is a very substantial difference between a law which is invalid ab initio by subsequent declaration and one which is validly passed and goes through the proper processes and is within power, but which as a technical matter has not been properly proclaimed. I see a vast difference in those 2 situations. For one to take action retrospectively to create an offence in the first situation may be indefensible. That one should do it to declare that the law always was such seems to me to be totally defensible, 1 want to put one small proposition. Senator Wheeldon asked: What about those people already in prison?’ Against that background consider the case of a person who, with full knowledge and without any persuasion or inducement, pleaded guilty to every element of an offence under the Ordinance now declared to be ineffectively proclaimed and was convicted. There was no operative law; nevertheless he pleaded guilty to every element of the offence.
– So what? What difference does that make?
– Wait a minute. That person therefore, in the social context, has set himself completely against the law and freely acknowledges that fact. It appears to me that to exonerate that person subsequently would be an extraordinary situation. The offence may have been a most serious one; of which in fact he was guilty, acknowledged to be guilty, and in fact acknowledged every element of the offence. Under those circumstances, I am unable to see that this is in any sense retrospective legislation. I think it is declarative legislation. In the circumstances, it seems to me to do no inequity. As a proposition in total justice it seems to be the only reasonable and prudent course that can be followed.
– The proposition that Senator Byrne has just put to the Senate is extraordinary. Senator Byrne has considerable legal knowledge and I think it needs only slight prompting to make him recall the many cases in which the courts have upheld the right of a person who has been convicted or pleaded guilty to have a conviction set aside because he had been convicted whether after trial or upon plea of an offence not known to law. There is no doubt about it.
– But this is an offence known to law. It has not been proclaimed. That is the difference you will not acknowledge.
– There is not the slightest doubt that there are people throughout Australia in gaol today who have been dealt with under ordinances and regulations which had not come into effect, and in the eyes of the law those people are innocent. The Attorney-General (Senator Greenwood) ought to be using all of his resources to get those people out of gaol because they are innocent. If we pass this Bill tonight they will be made guilty retrospectively. That is the evil of this Bill. Senator Byrne does not seem to be able to understand it. All we get from him is casuistry. He knows that that is the truth and he has to find some rationalisation to explain the fact that the Senate is being asked to pass a law to make innocent people guilty. Otherwise we do not need this Bill. What do honourable senators think they are doing with this Bill turning innocent people into guilty people retrospectively? That is the whole purpose of it.
– If there was a law the Government would not be introducing this Bill.
– If there was a law there would be no need for this Bill. The fact is that people are innocent. This is one of the worst things that has been done by a parliament. What was done about Commonwealth places after the Worthing case which was equally bad? It was dreadful. Some man was up on a charge of rape and there were a few other cases of trespass and so on. This Parliament broke the great principle in order to make sure that half a dozen people were convicted. Now the Parliament is being asked to extend the principle. It does not require much understanding of the parliamentary processes to know that in a few years time under some other government someone will do the same thing. The Government of the day will look back and say: ‘We have done this several times before. We did it in relation to a few hundred people. There are demonstrators outside and there are people who have been convicted of breaches of the National Service Regulation’. It does not matter tuppence if a few hundred people go free. That is what is at stake in this case. No amount of covering up will hide the fact that retrospectively the Senate is being asked to make guilty what was innocent.
The Government bungled but that is beside the point. For whatever reason, no law was made. It is exactly the same as a statute which came into operation when proclaimed but which had not been proclaimed. The Government is sitting back and saying: ‘Retrospectively we will make it law and turn into criminality that which was not,’
We do not have a great deal of time left to us and Senator James McClelland has a proposition to put. There are several other alternative propositions. I have endeavoured to draft an amendment which covers the position. I am not able to assure the Senate exactly what the effect of it is. We have not been told by the AttorneyGeneral exactly which regulations and ordinances are affected in this global Bill which we are being asked to pass. I do not know the full extent of the matter but I have been trying to do my best. I asked for and received the services of a parliamentary draftsman and this amendment is my responsibility, not his. However I am grateful for his services.
I have endeavoured to draft an amendment which would carry out what I think should be an appropriate approach, namely, that the principle against retroactive criminal law should be followed. That would mean that those still undergoing penalty, in effect, would be relieved from their penalty on proper application, and that those who have not been convicted would not be liable to conviction. Now that the regulations and ordinances have been properly notified they would operate against any other person. The benefit of the great principle would endure. It may mean that in the eyes of the Government and maybe in the eyes of the Opposition some people who have done what we all might think was the wrong thing would go free. This should not deter us because it has happened many times in history. Indeed, a book issued by the Quakers entitled ‘The Struggle for Justice’ points out that the number of people convicted and dealt with under the criminal law is a minute fraction only of those who commit offences.
It should not concern us unduly that a comparatively few people might escape what others might think are their just deserts. We on this side of the chamber may have no sympathy at all for many of those people. It is far more important that the great principle be upheld. The United States of America has not fallen to pieces as a result of great judicial decisions. Many tens of thousands of people have escaped the consequences of what actually were crimes - not non-crimes as in this case - by reason of decisions on evidence or procedures. Here the case is very much greater because the people concerned in fact committed no wrong. We should not be turning what was lawful, although perhaps not desirable, into criminal conduct. I move:
After sub-clause (2.), insert the following subclauses: - (2A.) Nothing in this Act renders a person liable to be prosecuted for, or convicted of, an offence where he would not be liable to be prosecuted for, or convicted of, that offence if this Act had not been enacted. (2B.) Where a person was convicted before the commencement of this Act for an offence under a law that was inoperative at the same time of the act or omission in respect of which he was charged but which is, by virtue of this Act, to be deemed to have been operative at that time, that person is not liable, after the commencement of this Act, lo stiffer, or to continue to suffer, any imprisonment, or to pay any pecuniary penalty, as a result of the conviction, and any such person who is suffering any such imprisonment shall be released. (2C.) A person is not entitled to bring any criminal or civil proceeding to recover a pecuniary penalty paid, or to recover damages in respect of a period of imprisonment served, by the person before the commencement of this Act as a result of a conviction referred to in the last preceding sub-section. (2D.) A person shall not be required to enter into a recognizance after the commencement of this Act as a result of a conviction referred to in sub-section (2B.) of this section and any recognizance entered into before the commencement of this Act by a person as a result of such a conviction is, by force of this sub-section, discharged.’.
We have not. bad much time to prepare our amendment, in the same way as the Government has rushed through the legislation without, we think, proper regard to the rights of persons who would be affected retrospectively in the criminal area. Wc have done the best that we could. I submit the amendment for the consideration of thi Committee. If carried it would, as I conceive it, be the kind of way in which the Congress of the United States would deal with such a situation. No ex post facto criminal law would be enacted. However despicable and however unmeritorious on moral grounds some action might besome offences might not fall into that category - persons should not be subject to criminal penalty for an action which, at the time it was committed, was not a breach of the law
– 1 second the amendment. In doing so I indicate that I will not move the amendment which I foreshadowed, in favour of this amendment. I notice that that statement amuses the Attorney-General (Senator Greenwood); so by way of explanation-
– It is the amusement, if one could call it that, of sensing that we have made our point.
– I will take the Attorney-General up on his inter jection. If anything has characterised the whole exercise, it has been the messy and unseemly haste with which the Government has acted in order to plug its previous mistakes. In introducing this validating Bill, as the Government called it, it had belatedly to move an amendment to the Bill while it was being discussed. Under the circumstances - under the circumstances of the gagging of the whole debate - is it unreasonable that the Opposition, in trying to take a practical, realistic and enlightened attitude towards what should be done to solve the mess, should have had first thoughts and second thoughts about what was the best way to solve the mess? This morning Senator Murphy pleaded for time - not a lot of time. He asked that we be given until next Tuesday so that we could have the advantage of receiving advice over the weekend in order that we might avoid some of the errors into which the Government has fallen. Was it unreasonable for the Opposition, in considering this exceptional and unprecedented situation, to ask for this time? Of course it was not. Now the Attorney-General attemepts to gain some comfort from the fact that we have had second thoughts about the best way to accomplish what we consider to be the high social principles for which we stand.
I admit that the amendment which I foreshadowed yesterday and which was a copy of an amendment moved in the other place had certain inconsistencies. Let us remember that the other place had even less time than we had to consider the implications of the situation. I admit specifically that the foreshadowed amendment was open to the charge of selectivity. I freely acknowledge that what I was doing was trying to be realistic. It could be argued, as a matter of pure logic, that if all these ordinances and regulations were inoperative every man - murderers, rapists and people guilty of the most heinous crimes - not only should be freed but also should be entitled to compensation. Devoted as I am to the idea of the rule of law, I must confess that I baulked at a proposition of that magnitude. I must admit also that in baulking at it I was logically inconsistent. However, I was trying to be realistic. As I have said previously and as I repeat, we are not gloating over the Government’s predicament. We want to see this problem solved, but we want to see it solved within a framework of respect for the high principles of civic justice and civil liberty for which we on this side of the chamber stand and to which honourable senators on the other side of the chamber constantly pay lip service. I believe that we might have been able to do even better on more mature consideration, had we been able to give the Bill more consideration; but we have only until 9.30 p.m. I think it ill becomes the AttorneyGeneral to smile at the difficulty in which we have become involved in trying to get the best possible expression of the principles for which we stand. I believe that the amendment moved by the Leader of the Opposition (Senator Murphy) expresses better, more cogently, more consistently and more coherently the principles that I was trying to establish in the amendment which I foreshadowed. For those reasons I support this amendment. 1 now pass some comment on what was said by Senator Carrick and echoed by Senator Byrne in a slightly more sophisticated but no more persuasive way. I take it that Senator Carrick was referring to the old principle of mens rea or a guilty mind. Senator Greenwood said that what counts above all else in considering whether legislation suffers from the vice of retrospectively creating criminality is what the community believed to be the legal position. Somehow or other it was suggested by the Attorney-General, by Senator Carrick and in a more garbled way by Senator Byrne that this is the ultimate test. Let us put that to a simple test. If I cross King’s Hall believing that I am committing an offence in doing so, does that conclude the matter? Does that establish the criminality of what I am doing - because I have a guilty mind, because I believe I am committing an offence - if, in fact, under the law I am not committing an offence? Mens rea or the guilty mind has always been considered to be a necessary ingredient in criminal conduct. There also has to be an actual criminal offence in the statutes of the country concerned. No matter how guilty I believe I am and no matter how foul my intent, if in fact there is not a statute forbidding that conduct that conduct is not illegal.
– The moving of the amendment explains what we have been doing for the last 1 hour and 10 minutes, and that is filling in time until the amendment was prepared.
– That is not true.
– It quite obviously is the truth because the amendment has only just been circulated. There was no point in talking to an amendment which could not be circulated. I do not think it is an unreasonable conclusion to draw that time was played out in order that the amendment could be prepared, and now that it has been prepared the amendment which had been circulated yesterday and which is now to be discarded does not have to come into the debate. Be that as it may - it shows that we can discount many of the things that were said in the last hour as just padding in order to build up a case - we now have what I must concede is a far more sensible proposition than the one of which we were given notice last night because the foreshadowed amendment, as Senator James McClelland now acknowledges, did have about it an element of selectivity and that is inconsistent with the proper and fair application of the rule of law.
What are we asked to do now? I think there is an enormity in what is asked - an enormity which does not take sufficient account of the situation which has occurred and of the reason for the introduction of the Bill. What occurred was that the Supreme Court said that because of a technical defect there were virtually no operative ordinances in the Australian Capital Territory. It certainly said that the Ordinance which was before it was inoperative, but the reasons given make it highly probable that most, if not all, of the ordinances enacted since 1940 are inoperative. That is the basis upon which the Government is acting. In short, one cannot be sure whether the substantial body of law of the Australian Capital Territory is or is not law. The Government has an obligation to make the position clear and to realise the community expectation that what it thinks is the law is in fact the law. Because of the technical defect, the amendment which has been moved by the Opposition seeks to do a number of things. Firstly, it seeks to provide that a person who has been convicted of an offence, and is in prison because of that conviction, under an ordinance which was inoperative, should be released. If such a provision became law how would one determine at this point of time or in 2 hours time when the legislation becomes law whether a person currently serving a sentence was or was not entitled to the benefit of that provision? If this provision were to become law and the Government did not release such a person it would be guilty of false imprisonment. The amendment states that ‘any such person who is suffering any such imprisonment shall be released’. But how is the Government to know? How am I to know if I carry the responsibility, and how are the prison officers to know whether a person convicted before the commencement of this Act for an offence under a law that was inoperative at the time of the act or omission in respect of which he was charged but which is by virtue of this Act deemed to be operative at that time is not liable after the commencement of this Act to suffer or continue any imprisonment. It will create the problem of determining which persons are entitled to be released and which persons are not entitled to be released. But that is merely one of the problems which appear on the construction of this amendment.
What I think is the real vice of this amendment and the reason the Government will not accept it is that it is not a true validation. It seeks to give exoneration to some but not to all. It seeks, because of the defect, to give exoneration to those people who are currently serving a sentence of imprisonment, under a recognisance, paying a fine or liable to pay a fine, but it does nothing whatever to exonerate people who have previously served a sentence or paid a fine. I do not know how the Opposition would distinguish between them. I suppose it would say that one cannot make a provision which compensates or recompenses those who have in fact served a sentence but one certainly can do something for those who are currently serving a sentence. I appreciate that ground of distinction, but I do not think it is a valid one. lt is certainly a better ground of distinction than that which was proposed of saying that the people who were arrested in front of Parliament House will go free but no-one else. The point I mink is important is that there ought not to be these distinctions, because of the technical character of the defect which has been drawn to attention and which this legislation seeks to remedy. The whole purpose of validating legislation is, as I have said before, to ensure that what the people believed was the law was in fact the law. If people have gained rights and incurred obligations and there is some doubt as to whether those rights or obligations truly exist, it seems to me that one has to put the position beyond doubt. The amendment, of course, does not deal with the civil position in any way.
– That is not correct.
– Is that not correct?
– No. If the AttorneyGeneral looks at proposed sub-clause (2c.) he will see that it states that a person is not entitled to bring any criminal or civil proceeding to recover a pecuniary penalty paid.
– I appreciate what Senator Murphy has said. I had thought, looking at that, that it was with regard to penalties in the nature of penalties paid on a prosecution - a pecuniary penalty paid, to recover damages in respect of a period of imprisonment served and not what I am thinking of, namely, the ordinary civil suit in which a person may recover damages or an order under which a person may have an obligation to pay maintenance. I do not think these civil proceedings are covered by this proposed sub-clause. Am I right or wrong?
– I think the AttorneyGeneral is right. We are not exempting those.
– I accept that. That is the assumption upon which I was proceeding. If we are to deal only with people who are in a criminal situation and not those who are in a civil situation, what is the ground of distinction? Why is the Opposition singling out some and not others? It seems to me that the whole point of this legislation is by it to restore the status quo existing before the Court delivered its judgment at 2.15 p.m. last Tuesday. That is the purpose of all such legislation. 1 suggest that the Opposition is playing a curious game of inconsistency. Maybe this is because a general election is in the offing. Maybe it is because right at the back of the Opposition’s thinking is a desire to look after the people who were arrested in front of Parliament House and who were the subject of the first amendment which was moved. The Senate will recall that in 1968 a gentleman by the name of Noel Edward Taylor, who was then serving a sentence in the Goulburn Gaol, applied to the High Court of Australia for a writ of habeas corpus. He did so because, he said, there was no valid authority under Commonwealth law whereby he could be held in Goulburn gaol. The High Court agreed with him. It declared that the practice which had existed since 1911 whereby persons convicted and sentenced to terms of imprisonment in the Australian Capital Territory and transferred to the gaols of New South Wales had been ineffective. There were people then serving terms of imprisonment in New South Wales gaols who were not, therefore, lawfully there. The Government, decided that what it must do was to validate that situation and ensure that the persons who were in those gaols - at that time unlawfully - were there by virtue of a statute and therefore lawfully held there. That was validating legislation to set right a position which was wrong for a technical reason and to give effect to what the community believed. What was the attitude of the Opposition on that occasion? It agreed that it was an urgent situation which had to be speedily rectified. So it allowed the validating legislation to pass through the House of Representatives at a far greater pace than this legislation achieved yesterday. What happened in the Senate? It moved through the Senate with great speed and expedition. What did Senator Murphy say then, in contrast to what he says now? He said:
The Opposition will not oppose this measure. We realise that it is an urgent one. Perhaps not all the provisions in it are of an urgent nature, but certainly something needs to be done to ensure that those who are kept in New South Wales prisons under colour of federal law-
I emphasise the words ‘under colour of Federal law’- are lawfully kept there. Therefore we do not in any way oppose this measure.
That, to me, is contrary to the principle which he has been espousing with high sounding rhetoric today. What is the reason for the difference in approach in 1968 and 1972? I have suggested 2 reasons. I may be wrong, but I think the approach which the Labor Party adopted in less impassioned days when an election was far more distant was a far more reasonable approach to adopt than its present approach. I think we all recognise that there is a need for something urgent to be done and that people who, under cover of what is given to them by the Supreme Court, regard themselves at the present time as not guilty of an offence should be put in the position which was their belief, which was the community’s belief and which, 1 believe, ought to be the position, and that will be achieved by the passage of this legislation.
– There is a great difference between the Removal of Prisoners (Australian Capital Territory) Act and this Bill for an Act. In the former Act we were dealing merely with the proper means of holding prisoners.
– People who had committed an offence.
– There was no question but that these persons had committed an offence against federal law. There was no doubt whatever of the right to have them held and that they were due to suffer a penalty. The only question was the administrative one as to where, in fact, they should be held. To equate that case with this is not really reasonable or fair. That was not a case in any way of a retroactive criminal law. There was no question as to the guilt of the people or as to the fact that they had been properly convicted and sentenced. That did not arise at all and I am astonished that it should be suggested that the cases are in any way equal or even similar. What has happened here is that we agreed that there should be a Bill to deal with civil rights. I do not. think that the Attorney-General disputes what we are putting in relation to this. We agree that the civil rights of people should be corrected. No-one disputes this.
This is a commonsense approach. But there is a very important principle that you should not turn that which was legal in the eyes of the law into illegality. If the Government wants to do it, it can do it. I see that it will do it but it will be offending against the Declaration of Human Rights which has been declared to be the standard for peoples everywhere. It will be declaring itself against the rule of law as enunciated by the International Commission of Jurists in repeated documents. It will be declaring itself against the Convention on Civil and Political Rights which, again, is a standard for peoples everywhere, lt is easy to avoid doing this. We have put a proposition forward which will make it possible to avoid this. The Attorney-General said in reply to criticism that we have got away from a selective position and into a general position. At last he has got the message that we have been trying to give to him. If honourable senators look at what is before them they will see that this is an addition to what is in the proposed legislation. All the civil and political rights of persons are not being interfered with. If you like, it could be said that they are being validated. That is not the correct word, but I will use it. The civil situation is being corrected. It is said in respect of criminal matters that people have been sent to gaol and served their time or they have paid their fines. That is too bad. That is over and done with. There is nothing we can do about that. Bui we want to say that nothing in this legislation shall render a person liable to be prosecuted or convicted of an offence if he would not have been liable to be prosecuted or convicted if this Bill had not been passed. We want to say that if people did something which was not offensive in the eyes of the law this legislation will not allow them to be prosecuted or convicted for thai action. Is that too much to ask the Senate to accept?
– Clause 2a applies to the future as well as to the past.
– No. It does not. If the honourable senator knew what had been done in the past, he would know the factual situation. The Crown has notified the matters in the ‘Gazette’. It has gazetted the regulations and ordinances that it wanted gazetted. It has moved. The other night the Government moved and it is open for it to move in the ‘Gazette’ properly anything that it wants to. So if the honourable senator looks at the factual situation he will see that it docs not apply to the future at all. If the honourable senator who interrupted wants to know the answer, it is that the Government has not set out to change the law because it is obvious that these regulations and ordinances should be properly notified. All it has tried to get over is the fact that they have not come into effect previously. The honourable senator’s comment is not properly directed to the amendment.
Clause 2b states that if people have been convicted of an offence in an area where the law was not operative they need not be subject to a penalty. This applies only if they have been convicted of a breach of a law which was not, in fact, in operation.
– Senator Murphy, would you be good enough to explain clause 2c in the few minutes remaining to you? I am not certain about that one.
– Yes. A person is not entitled to bring any criminal or civil proceedings to recover a pecuniary penalty paid or to recover damages in respect of a period of imprisonment served by the person before this legislation was introduced. We are saying that whatever has happened - whether they paid a fine or suffered imprisonment - is over and done with. It might be said technically, as the Attorney-General said: Why do we not proceed to pay back all the fines of people who have been affected in this way? He can argue to that effect. But what we have tried to do is to be sensible. We have put forward a reasonably acceptable course to the Senate and have said that in regard to those who have suffered imprisonment or paid a fine, that is the end of it. But no person in the future is to be required to pay a fine for a breach of what was thought to be a law but is not a law. We have also brought forward a subsidiary provision in regard to recognizance.
I regret the way in which this whole matter has been dealt with. The AttorneyGeneral has suggested wrongly that the discussions here have taken place only because an amendment had not been prepared. That is not true and he would find that to be the position if he spoke to one of his officers. Even if it were true, it would not matter. The fact is that we have had lo consider what was the best course to take and what to put before the Senate. We have taken some little time in putting before the Senate what we thought was the most appropriate amendment. I do not think that should be held against anyone. It is our duty here to consider what should be done. I do not think that this great matter ought to be dealt with on that basis.
The Attorney-General says that if we carry this amendment it will create a problem. He said that he will not know which persons to release and which persons not to release. There are some innocent people in gaol right now who, if this amendment were passed, would be entitled to be released. Because it is difficult to ascertain who those persons are, the answer of the Attorney-General is to keep all those people in gaol. This includes those people who are innocent as well as the persons who would not be covered by this enactment. I believe that the administrative convenience of the Attorney-General should not stand against what we conceive to be the human rights declared by mankind in the United Nations and in other world forums. This is not something that has come from the Opposition just as some political gimmick. No answer has come from the Government to say that this principle should not be acceptable to mankind. It is apparent that the Government, the Australian Democratic Labor Party and one or two Independent senators, perhaps, are not prepared to accept the world standard of human rights.
We think that the amendment is desirable. We think that it would serve the interests of the Senate. It is a reasonable approach to this matter. It is consistent with the highest standards which have been adopted by humanity in relation to these retroactive criminal laws. If honourable senators divorce themselves from the present situation and the fact that a general election is to be held, I think that they would be proud to have this amendment adopted. I think that many honourable senators will have reason to regret itif they do not support a point of principle but rather think that they should be caught up in sweeping through this House legislation in some panic and hysteria and avoid the discharge of the responsibility to observe the rule of law, to observe the standards and to maintain the rights of people, even those whom you oppose, those with whom you disagree or even those whom you despise.
– Order! It being 9.30 p.m. the time allocated for the Committee stage of the Bill has expired. Accordingly I put the amendment moved by Senator Murphy.
That the words proposed to be inserted be inserted.
The Committee divided. (The Temporary Chairman - Senator Withers)
Majority . . . . 5
Bill reported without amendment; report adopted.
Bill (on motion by Senator Greenwood) read a third time.
Motion (by Senator Drake-Brockman) - by leave - agreed to:
That intervening business be postponed until after consideration of Government business, notice of motion No. 1.
– I move:
Estimates Committee A -
Department of Health
Department of the Prime Minister and Cabinet
Department of the Treasury
Department of Defence
Estimates Committee B -
Department of Immigration
Department of Social Services
Department of the Environment, Aborigines and the Arts
Estimates Committee C -
Department of Works
Department of Foreign Affairs
Department of Labour and National Service
Department of Education and Science
Department of External Territories
Department of Housing
Estimates Committee D -
Department of Civil Aviation
Department of Trade and Industry
Department of National Development
Department of Shipping and Transport
Department of Customs and Excise
Department of the Interior
Estimates Committee E -
Department of Air
Department of Primary Industry
Department of the Army
Department of the Navy
Department of Supply.
This is moving away from the normal procedure, but looking back at the sittings of the Estimates Committees last year we see, as I explained to the Senate yesterday, that those sittings extended over 10 weeks. Despite the fact that we have not concluded the Budget debate, I find that there is nothing in our Standing Orders to prevent us from referring the particulars of proposed expenditure to the Estimates Committees. Although, as I say, the Budget debate has not concluded I propose that the Estimates Committees should begin their sittings next week. I suggest that next Tuesday Estimates Committee A and Estimates Committee E should sit from 2.15 p.m. through to the dinner adjournment and then from the resumption after the dinner adjournment to 10 p.m. That is really the substance of my motion.
I have discussed this matter with the leaders of the various Parties, and we have come to the conclusion that there is nothing to prevent us from at least trying to start to deal with the Estimates. As the proceedings of the Senate are broadcast on Wednesday, I propose that the Senate should sit as a whole and discuss Government business and other business which might come before the Senate on that day. I suggest that the Estimates Committees should sit on Tuesday and again on Thursday of next week, and that is what my motion proposes.
– I rise only to seek amplification of what the Minister for Air (Senator Drake-Brockman) has said. Firstly, he would know that there has been quite a lot of discussion on previous occasions when we have been examining procedures as to whether we can get a cast iron assurance that no more than 2 Estimates Committees will sit at the one time. Secondly, as a member of Estimates Committee B I wonder whether I could have any advance indication as to whether that Committee will operate on Thursday.
– I raise a question in order to obtain some information. I do not know whether this is the first time that this has happened, but paragraph (3) of the motion reads:
That the Committees report to the Senate on or before 10th October 1972.
Whilst I believe that that is a reasonable time within which the Committees should report,I cannot recall that previously we have set a date on which the Estimates Committees should report to the Senate. If it is found necessary for one of the Committees to sit beyond 10th October, I am wondering whether it would be prohibited from doing so if we agreed to this motion. Is this an attempt to curtail or gag the activities of the Committees? If it was found in the latter stages of the Committees’ inquiries that we were getting into difficulty with the sittings of the Senate, perhaps we should suggest that the Committees should report to the Senate by a certain date. But providing a closing date on which the Committees should report to the Senate at the time of referring the particulars of proposed expenditure to the Committees could suggest in my mind that there is some desire to curtail the inquiries by the Committees.
– in reply - In reply to the points raised by Senator Mulvihill, 1 inform him the present programme which I have worked out with my Whip is a tentative one. I suggest that only 2 Estimates Committees should sit on each day. I will certainly bear in mind what the honourable senator said about Estimates Committee B sitting on Thursday. In reply to the question raised by Senator Cavanagh, could I say the date has been included in the motion only as an objective at which we might aim. But I assure him that, if one of the Committees finds that it needs to sit longer, I will do all in my power to give it time to conclude its deliberations.
– It seems silly to put the date there.
– I must include a date so that the Committees know at what they should endeavour to aim.. That is the only reason why the date is included in the motion. In recent days I have asked for the sittings of the Senate to be extended because the Senate has found that it has needed more tune. Senator Cavanagh can rest assured that we will endeavour to meet the situation to which he referred, should it arise.
Question resolved in the affirmative.
– Mr President, I ask for leave to make a statement with relation to the first annual report of the Commissioner of Trade Practices.
– Is leave granted? There being no object ‘on, leave is granted.
– On 16th August 1972 I tabled the fifth annual report of the Commissioner of Trade Practices. In that report the Commissioner referred to the frozen vegetables case and included a summary of the reasons for decision of the Trade Practices Tribunal in that case. Paragraph 3.15 of the report read:
Since the Tribunal’s decision, British Tobacco Company (Australia) Limited, the parent of Associated Products and Distribution Pty Limited, one of the major processors before the Tribunal, has acquired Allan J. Panozza Pty Limited, another of the processors, also Pict Limited, one of the other major processors. More recently, British Tobacco Company (Australia) Ltd has agreed with Wattie Industries Limited, a New Zealand processor who was also before the Tribunal, to combine their total frozen vegetable interests in Australia in a jointly owned company, which will be far the largest in the industry.
The Commissioner has now reported to me that he has received a letter from the solicitor for British Tobacco Co. (Australia) Ltd, taking exception to paragraph 3.15 and stating that the final words of the paragraph ‘far the largest in the industry’ do not appear to be correct. The Commissioner, following that letter, re-examined the position and has now informed me that in the context of the whole industry - including frozen potatoes as well as frozen green vegetables - the final words quoted in the extract of the report which I have set out are an overstatement.
The agreements that were before the Tribunal covered all the types of frozen vegetables produced in Australia, including potatoes, but the emphasis of the case was on green vegetables, particularly peas and to a lesser extent beans. The extent of the report in paragraph 3.15 which I have quoted did not take frozen potatoes into account. When frozen potatoes are taken into account and the total position is considered the jointly owned company may not have the largest total sales. The Commissioner has expressed his regret to me for the error contained in the report and has expressed his apologies to the company.
Bill received from the House of Representatives.
Standing Orders suspended.
Motion (by Senator Cotton) proposed:
That the Bill be now read a first time.
Debate (on motion by Senator O’Byrne) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Cotton) read a first time.
This Bill has 2 main provisions. One will amend the Income Tax Assessment Act to increase concessional deductions for the maintenance of dependants. The other will provide a deduction for expenses of a taxpayer in obtaining educational qualifications connected with income-producing activities in cases where the expenses are not deductible under the present law. Both measures were foreshadowed by the Treasurer (Mr Snedden) in his Budget Speech.
The amendments to the dependants allowances will mean that the maximum deductions available under the law for the maintenance of a spouse, a parent, a parentinlaw, a housekeeper and a daughterhousekeeper will each be advanced from $312 to$3 64. Similarly, deductions available for maintenance of a student, an invalid relative and for one child under 16 years of age will each move up from $208 to $260. For other children under 16 deductions will be increased from $156 to $208.
As explained in the Budget Speech, these increases in dependants allowances, together with the reductions in income tax proposed by the preceding Bill, are directed to easing the tax burdens of the family man and the single income family in particular. PAYE deductions from salaries and wages effective as from 1st September 1972 take both changes into account.
The measure dealing with what have become known as self-education expenses is an important one. Many people spend money on educational courses with a view to obtaining qualifications to aid them in earning income. This expenditure may not be deductible for income tax purposes because, according to long-standing principles on which the general deduction provisions of the income tax law are based, it is either not incurred in the course of producing income or is private expenditure.
The Government has decided, however, that a concession should be available for people who set themselves the task of gaining educational qualifications connected with their careers. We therefore propose a special concessional deduction for expenditure incurred by a taxpayer on fees, books and equipment associated with a course of education he undertakes for the purpose of acquiring qualifications related to his employment or career. The new concession will not be subject to any age qualification. It will be available whether a course of education is attended on a full-time or part-time basis or is carried on by correspondence.
As is the case with the concession now provided to a parent for the education of children, the maximum deduction under the new concession in any income year will be $400. Also in line with the deduction granted to a parent, a deduction will not be allowable for expenses recouped under the Commonwealth scheme for secondary and technical scholarships.
The new concession will complement the present allowance for education expenses and will be limited to the difference between the amount of $400 and any amount allowable to a parent or other person for the education expenses of the taxpayer. It is proposed that both the deduction for self-education expenses and the increased dependants allowances will be allowable in assessments based on income derived in the 1972-73 income year and subsequent years.
The provisions of the Bill referring to provisional tax are consequential on the reductions in the general rates of tax and the increase in the minimum taxable income for the 1972-73 financial year proposed by the Income Tax Bill 1972. These provisions will have the effect that the reductions in personal income tax rates and the increased minimum taxable income for individuals will be fully reflected in amounts of provisional tax in respect of the 1972-73 income year. Technical aspects of the Bill are explained in a memorandum circulated to honourable senators. I commend the Bill to, the Senate.
Debate, (on motion by Senator Wilkinson) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Cotton) read a first time.
– I move:
The the Bill be now read a second time.
With the concurrence of honourable senators I incorporate the second reading speech in Hansard. (The document read as follows) -
The sole purpose of this Bill is to exempt from sales tax imported works of art as foreshadowed by the Treasurer (Mr Snedden) in his Budget Speech. At present works of art produced in Australia are exempt from sales tax. Exemptions for imported works fall into 2 classes. Those imported for public galleries or museums or otherwise for continuous free public exhibition are exempt. So also are works by Australian artists abroad or, within the terms of the New Zealand-Australia Free Trade Agreement, by New Zealand artists. Importations by or for private collectors or commercial organisations of works by other than Australian or New Zealand artists are subject to sales tax at 15 per cent. The exemption in favour of works by Australian artists was introduced in the early days of sales tax as a measure of assistance to those artists. The Government considers that the development of Australian art is such that that original purpose is no longer relevant. Moreover, the tax on imported works acts against the interests of public galleries which rely to a large extent on benefactions from private collectors. Works of art are largely exempt from customs duty and the Government proposes that the sales tax discrimination against imported works should also be removed. The proposed exemption will complement the customs provisions and will accordingly apply to paintings, drawings, sculptures, engravings and so on that are exempt from customs duty. Imported paintings, drawings and pastels valued at $50 or less are subject to customs duty and will remain subject to sales tax. It is customary for sales tax changes to be effective from the day after their introduction into Parliament and therefore it is proposed that the exemption should operate on and from 16th August 1972. A memorandum containing a more detailed explanation of the Bill is being circulated to honourable senators. I commend the Bill to the Senate.
Debate (on motion by Senator Wilkinson) adjourned.
Bill received from the House of Representatives.
Standing Orders suspended.
Bill (on motion by Senator Cotton) read a first time.
– I move:
That the Bill be now read a second time.
With the concurrence of honourable senators I incorporate the second reading speech in Hansard. (The document read as follows) -
As announced in the Budget Speech, the Government has decided that the capital of the Export Payments Insurance Corporation should be increased from $4m to $8m. The purpose of this Bill is to give effect to that decision. The last increase in the capital of the Corporation was in 1965 when it was increased from $2m to the present level of $4m. Since then there has been a substantial increase in the business being written by the Corporation and, as a result, there has been a corresponding increase in its contingent liabilities. The face value of business underwritten has increased since 30th June 1965 from $160m with contingent liabilities of $83m to a face value of $622m with contingent liabilities of $375m as at 30th June 1972. These figures clearly show the rapid growth of the Corporation’s business. They illustrate the important role being played by the Corporation in assisting exporters, through the provision of a specialised range of payments insurance facilities and guarantee facilities, in expanding and developing overseas markets.
Although the liabilities of the Corporation are fully guaranteed by the Commonwealth, the Corporation is charged to conduct its affairs on a commercial basis. It is appropriate, therefore, that the Corporation should have sufficient capital to support the growth in its business. The Corporation has estimated that its contingent liabilities will increase by at least $45m per annum over the next 3 years. In order to establish and preserve a ratio of reserves to liabilities which would provide a reasonable basis for the Corporation to support its growing business, it is considered that an increase in capital of $4m is necessary to enlarge the reserves available to the Corporation. I commend the Bill to honourable senators.
Debate (on motion by Senator Wilkinson) adjourned.
Senate adjourned at 9.59 p.m.
The following answers to questions upon notice were circulated:
asked the Minister representing the Minister for Education and Science, upon notice:
Senator WRIGHT- The Minister for Education and Science has provided the following answer to the honourable senator’s question:
asked the Minister for Health, upon notice:
Senator GREENWOOD- The Acting Minister for Health has provided the following answer to the honourable senator’s question:
The development and maintenance of a stable framework for the support and advancement of the national medical research effort will continue to be a major objective of the Government. Concerning the departure of medical scientists from Australia, there is evidence that most leave to study for higher degrees or to work in specialised research areas where training facilities are not available to them in Australia. Enquiries have shown that the great majority return with valuable experience of benefit to this country.
Cite as: Australia, Senate, Debates, 14 September 1972, viewed 22 October 2017, <http://historichansard.net/senate/1972/19720914_senate_27_s53/>.