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Thursday, 15 September 1983
Page: 943


Mr GROOM(9.00) —I want to speak tonight about what I believe to be one of the fundamental issues of today. Australians have inherited the greatest heritage of all-that of freedom. It concerns me that fundamental freedoms are being greatly eroded right under our noses. By 'freedom', I mean the right of Australians to think what they will, to go where they want to go, and to privacy as decent, law-abiding citizens. Freedom, as we all realise, carries with it great responsibilities, and there must be powers and rules to protect freedom. But these powers and rules can be abused, and, if they are abused, freedom will be quickly destroyed. The responsibility for protecting freedom rests with the whole community. If people see freedom being abused, they must speak out. Every citizen has a duty to be vigilant. But judges and magistrates have a very special duty to understand just how fragile freedom is and to be watchful for any threat to it. Tonight I want to point to two instances where I believe freedom is at present under threat; one is general and the other is more specific.

The first instance concerns the power to enter a person's house against his will. This is a power which has been greatly extended lately. It is a power that we must watch with very special care, because next to personal freedom Australians value most the freedom of their homes. It is part of our tradition. The principle was best expressed by the great Earl of Chatham, when he said:

The poorest man may in his cottage bid defiance to all the forces of the Crown. The cottage may be frail-its roof may shake-the wind may blow through it-the storm may enter-the rain may enter-but the King of England cannot enter-all his forces dare not cross the threshhold.

Originally the power to enter a house was very limited. Even the King's officers were not allowed to enter a person's house simply to search to see whether anything unlawful was going on within that house. The rights of a landlord to enter premises which were occupied by his tenant were likewise very strictly limited. But the sad fact is that in recent times this freedom to occupy a house in peace has been severely eroded.

There are now at least 38 Commonwealth statutes which contain provisions that permit the issue of warrants to enter and search premises, including houses. These powers are contained not only in general criminal or policing legislation but in a broad range of Acts of Parliament. I take an example that is close to my heart-the Apple and Pear Stabilisation Act 1971-73, which contains very broad powers of entry and search. Section 22 (1) of that Act provides that a justice of the peace may issue a warrant authorising a person to enter premises 'with such assistance that he thinks necessary', and 'during such hours of the day or night as the warrant specifies or, if the warrant so specifies, at any time, if necessary by force'. Sub-paragraph 5 states:

A person shall not, without reasonable excuse, obstruct or hinder an authorised person acting in pursuance of a warrant granted under sub-section (3) of this section'.

It is interesting to note that a justice of the peace is now not permitted to witness a passport application, yet he is empowered to issue a warrant to enter a person's house under that Act, and under many other Acts of this Parliament. Under a vast array of Acts, officers of many government departments can enter into private premises without even obtaining a warrant. Obviously, in many cases these powers are necessary in the community interest. But the danger is that they can be abused and, indeed, are often abused. Judges must sharpen their recognition of the importance of the privacy of a person's house and private property and must never allow any powers to be oppressively or unreasonably applied. I think that courts in general are not as concerned as they ought to be about that freedom.

I now turn to the specific instance to which I referred. It is the so-called Combe affair. It concerns me that in public evidence officials have been making judgments about the conduct of Mr Combe and other individuals. They have absolutely no right to do so if Australia is to continue to be a genuinely free society. No person has any right to dictate to another what his religious beliefs should be, or what his philosophy or politics should be. We are all free to think our own thoughts, to hold opinions and to criticise. We should be allowed to mix freely with whoever we wish, subject only to the law of the land. It is always dangerous to make moral judgments, but it is particularly dangerous for officials to make moral judgments about someone's conduct.

In this country we are governed by the rule of law and not by the prejudices of other people. There are laws providing penalties for espionage, for the passing on of official secrets and for similar offences. If there is evidence of such conduct, the individual concerned should be charged. A judge and jury can then determine guilt or innocence on the basis of admissible evidence according to the established rules of law. It is not what some official thinks or what some politician might think; it is what the law says which should be the official guide to community conduct.

In recent times we have seen wholesale character assassinations of individuals through the media because of their associations, expressed thoughts or very vague allegations of misconduct. This is a very dangerous trend and it makes a mockery of justice. Some of the mud always sticks. Regrettably, the media's interest in royal commissions often compounds this serious problem. Royal commissions have become media circuses-entertainment at the expense of a person' s reputation or career. Courts of law traditionally stand between the state and the individual, but royal commissions are really an extension of the executive arm of government and do not have the same degree of independence, despite the integrity and the standing of commissioners. There is a danger that royal commissions may judge and convict an individual even though that person faces no specific charge and is not formally on trial. It is essential that there remains a clear separation between judicial and executive power. That separation can be blurred in the case of royal commissions appointed for the purpose of inquiring into a particular subject matter. Guilt or innocence should therefore be determined only by proper legal proceedings in a court of law; not by Nationwide , not by Sixty Minutes, and not by a royal commission.

We are fast approaching 1984. Regrettably, some of George Orwell's predictions appear to be coming true. As members of parliament, we must ensure, in dealing with legislation, that we never overlook the rights of individuals. As I said earlier, our judges and magistrates can be better champions of freedom. If we forget the rights of any individual, we shall pay an enormous price.