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Thursday, 16 May 1957


Mr BOWDEN (Gippsland) .- Ever since I have been a member of this House I have fought hard for the right of appeal against any conviction to be enjoyed by a person who considers himself to have been unjustly convicted. The most refreshing feature of the amendment is that it indicates a complete change of front by members of the Opposition. It is well within my memory that no legislation respecting judicial proceedings that was introduced by the last Labour Government contained any provision for the right of appeal. I remember that on all occasions when legislation of a judicial character was introduced by the Labour government I fought for the right of appeal, just as honorable members opposite are fighting for its inclusion in this legislation. The result was the same. The Minister in charge of the legislation in those days acted as the Minister at the table at the moment is acting now, and stated that the Government could not accept the amendment. I need mention only two cases to support my argument. One was the legislation under which the Labour government appointed conciliation commissioners from whose decision in industrial cases brought before them there was no appeal. That meant that if one party to an industrial dispute refused to accept the conciliation commissioner's ruling the dispute could go on ad infinitum. Honorable members will recall the engineers' case in Victoria which almost resulted in a calamitous situation, and the Prime Minister of the day, Mr. Chifley, had to find some way out of the dilemma. That lack of appeal from the decisions of conciliation commissioners has, of course, been remedied by this Government.

Then there was the more notorious case of the celebrated Banking Act, which was to bring in the millennium. A judge was appointed as a tribunal to adjudicate on everything done in relation to the taking over of the private banks by the Government, and provision was made for any failure on the part of bank directors, or any employee of a bank, interfering with the Government's usurpation of banking services, to be dealt with. Such offenders could be fined £1,000, or imprisoned for one year, or both, and no right of appeal was provided. So, it is most refreshing that the members of the Opposition have come round at last to my point of view, and that of many other honorable members on this side of the House, and now hold that a person who is accused, but who is innocent or considers himself the victim of an injustice, should have the right of appeal.


Mr Ward - We hope you will vote for the amendment.


Mr Whitlam - Will you vote for the amendment?


Mr BOWDEN - I shall suggest a better one.

Having dealt with that matter, I wish to point out that summary jurisdiction in public organizations is an absolute must. It is essential unless we are to have complete and utter chaos. A person who is guilty of a minor offence punishable by a fine of 5s. or 10s. knows that he has to suffer some penalty, and accepts the position. I shall cite the position in the Australian Army, which is, in effect, a large public service organization, as an example of a procedure that might be applied in the present instance. Summary jurisdiction is vested in the commanding officer of a unit in respect of minor offences, but in every case the soldier has the right to be paraded to the highest authority in the Army if he considers himself aggrieved. On the other hand, if his offence is punishable by an amount greater than the amount of penalty awardable in a summary trial by the commanding officer of the unit, he has the right to choose whether he will be dealt with by the commanding officer or to go to court-martial. In such a case, therefore, summary jurisdiction may apply, but if the soldier thinks that a courtmartial would deal more fairly with him he may ask for a court-martial; on the other hand, if he thinks that a courtmartial would deal more harshly with him than his commanding officer would, he would choose to be dealt with summarily by the commanding officer.

There is nothing more irritating to an innocent person, a person of clean character, clean conduct, clean repute, to be penalized for something of which he feels himself to be perfectly innocent.. I can imagine that that would irritate a man for the. rest of his life. He would never get it out of his soul that injustice had been meted out to him. I believe that if the Government would consider adopting the army system in this case, and give the employee the right, to say whether he will have his commanding officer - that is, the head of his department or section - deal with the case, or whether it should go to a higher authority, it would be doing a desirable thing. The case mentioned by the honorable member for East Sydney (Mr. Ward) was a case in point. The higher body would have the power to say that there was no charge, because there were extenuating circumstances which might not be takeninto consideration by a commanding officer summarily dealing with a case. b want the Government to have some consideration for the feelings of a man who is penalized and who knows that he is innocent. A man who was on a charge of punching another man on the nose and who was dealt with by the commanding officer, might be dealt with entirely on the basis of whether he had actually delivered the punch; whereas a higher court would want to know why he punched the man, and might say to the defendant, "You should have punched him twice, under the circumstances ". A higher court taking that view would acquit the man, who would therefore be exonerated. Could not the Minister introduce into this measure something, like the army system, which gives a man on charge the right to say whether he wilL be dealt with by his commanding officer or be paraded, as it. were, to the general?

The person in whom the authority to deal summarily with a man on charge is vested must be a man of equable temper and. character. He must not be liverish. He must not allow emotions to govern his actions. He must be completely the. administrator of justice in the case, regardless of what the appearances are, because appearances are often deceptive. He might find that in a certain case it is necessary to adopt a humanitarian outlook, and may award a penalty less than the maximum that he is authorized to. award, because of. the circumstances of the case. He must also be a psychologist, because you cannot treat Brown in the same way as. you treat Smith. They are men of totally different temperaments, and are actuated by totally different motives. Therefore, I repeat, the man authorized to administer summary jurisdiction must- himself have character and temperament, and- must be able to read the character of the persons who appear before him. We shall never cure an injustice by contending that the same injustice exists in some other legislation. It is not less an injustice in this Government's legislation than, it was in the previous government's legislation. So, I should like the Minister to have a look at this matter of giving a person on charge the right to choose to be dealt with by a higher authority than his commanding officer. I repeat that summary justice is essential in huge public organizations like the Army, but I think that in some cases a person charged should have the. right to elect to be tried by higher authority.


Mr Townley - That is a good point. It will be considered.







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