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Thursday, 17 November 1960


Mr CAIRNS (Yarra) .- Briefly, from the layman's point of view, I want to seek to clarify the question of the issues raised by the Opposition. I take it that there are two. First, there is a difference between section 80 of the Constitution and the provision of this bill under consideration. It does not necessarily follow that the provision will get a trial by jury for every person who is charged on indictment. The difference is based on the opinion of persons like the Attorney-General and the former Chief Justice of the Commonwealth of Australia, whose opinion was quoted by the Deputy Leader of the Opposition (Mr. Whitlam). Surely this committee, if it were seriously considering this matter, would take note of the apparent conflict of opinion between two such persons as the AttorneyGeneral and Sir John Latham, a former Chief Justice and a former AttorneyGeneral of this Commonwealth, on that point. Looking at it from the commonsense point of view, I think that some answer to that conflict of opinion in the circumstances is called for. The second point I wish to make-


Mr Ward - Do you think Sir John Latham read his books?


Mr CAIRNS - I do not know whether he is up to date on his reading, but I think that ai one stage he read them. The AttorneyGeneral can tell us about it if he wishes to do so.


Mr Whitlam - He vouchsafed the opinion that he knows some that Sir John did not read.


Mr CAIRNS - When lawyers disagree there is really trouble. The other point I wish to make clear in relation to the Opposition's case - and obviously the honorable member for Bruce (Mr. Snedden) is not too clear on it, because he had to ask a few moments ago what kind of serious offences would not be punishable on indictment - is that obviously section 12a (2.) of the act indicates that some very serious offences could be punishable by a magistrate in the court.


Mr Snedden - What is the relevant section of the Crimes Act?


Mr CAIRNS - It is section 12a (2.). lt reads -

A Court of Summary Jurisdiction-

Perhaps I could take it a word at a time - may. if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an offence against this Act, although declared to be indictable, if the offence relates to property the value of which does not exceed Fifty pounds.

What are some of the offences under this act? There are the offences of counterfeiting, forgery, corruption, sabotage and conspiracy. In fact, all of those offences, which are punishable by up to fifteen years' imprisonment, can, under this section, be dealt with by a magistrate whose power to inflict a penalty is limited to imprisonment for twelve months. These are serious offences. Can anybody dispute it? The honorable member for Bruce is apparently satisfied. The point that the Opposition makes it that because of the serious nature of these offences the accused person should have the right to elect how he should be tried. This power should not rest in the hands of a magistrate. It is quite apart from the question whether the magistrates consist of a body of men who are highly respected. What the Opposition stands for here is the right of the individual charged, and assumed at that stage to be completely innocent of the crime with which he is charged, to elect how he shall be tried. It is not a matter of whether he might be better situated in the hands of a magistrate than in the hands of a jury, or of whether his defence will cost considerably less in a magistrate's court than in another court. It is not a matter of whether the trial will cost more or less in one place than in another. It is a matter of the right of the individual - in serious offences at least - to elect how the charge will be determined. That is where the Opposition stands and, from a common sense point of view, I think it is clear enough. An answer far better than the ones we have had from the Government is called for on this matter.







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