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Thursday, 17 November 1960

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - I have great sympathy with the point of view of the honorable member for Isaacs (Mr. Haworth) that an officious constable might do a great deal of harm and cause a great deal of heart-burning. But, with great respect to the honorable member, the remedy for this is not to forgo the very necessary change to section 8a of the act. The honorable member will no doubt notice that section 8 and section 8a together are less in area than the ordinary common law right of arrest which a constable has because a constable ordinarily can arrest on suspicion even though proceedings against the person by summons would be effective. In New South Wales we have been through the experience of an undue use of the power to arrest persons when summonses would have been quite effective. Section 8a contains less than the general power of common law by requiring that the constable shall not arrest without warrant on suspicion when proceedings by summons against the person concerned would be effective. That is a very substantial safeguard because the ordinary right of the citizen in respect of wrongful arrest - arrest beyond the power which the statute gives - is not taken away. The individual has a right of recourse against a constable who exceeds his authority under section 8a.

The amendment is necessary because this bill will extend the area of operation of the statute to the Territories and there is need, on occasions, for a constable on the mainland to arrest a person who has committed an offence in a Territory and who has left the Territory and come to the mainland. So, the two significant changes proposed are that a person may be apprehended in a Territory for a breach of the law of the Commonwealth, and that a person may be arrested in the Commonwealth for a breach of a law in a Territory. For the administration of the law, these two extensions are necessary. I have some sympathy with what the honorable member for Isaacs said because sometimes, in a young force, the constables have not been brought up to the point at which they use the utmost discretion. That is a factor in favour of the proposal.

Mr Whitlam - Even commissioned officers in the Territorial forces are young men.

Sir GARFIELD BARWICK - That may be. But young men are not necessarily lacking in a sense of responsibility. I would be surprised to hear the Deputy Leader of the Opposition (Mr. Whitlam) assert that proposition. He has not joined the ranks of old people yet. The remedy for the position of which I am speaking is rather in a disciplined force, supervised by the Commissioner of Police, and steady instructions issued from time to time to prevent these very occasional excesses on the part of constables. Balancing it all together, there is no case for not amending the section to extend it as proposed. There is no ground for removing a most useful power to take a person without warrant when proceedings against that person by summons would not be effective. Such a person might be going - " ducking ", to use a colloquialism. I would not be prepared to alter section 8a in any other respect, or to forgo the proposed amendment. I shall see that direction is given to constables in forces under my control that section 8a, with its limitations, must be carefully observed. I know that such an instruction had great effect in New South Wales some years ago when there was too frequent use of the power to arrest without warrant.

In answer to the honorable member for Wills (Mr. Bryant) I would say this: The purpose of the proposed amendment is to permit a magistrate, where he has not a case for forfeiture of an article, to order that it be handed back to the original owner. He may have before him a dispute as to who owns it. Sometimes, if there is no power to hand an article to the right person, if it is not forfeited, the parties are left with an argument somewhere else as to its disposal. The amendment is designed to save expense and litigation. The article which is the subject of a dispute may not have been taken from the possession of the owner. It may have been taken from the possession of a person who has taken it from the owner and there may be a contest before the court, if forfeiture is involved, as to who really owns the article. If the magistrate orders forfeiture, under the law at present he can direct that the article be dealt with under the forfeiture, but if he does not order it to be forfeited he can do nothing. This provision allows him to make an order as to the ultimate ownership.

Mr Bryant - It is not a case of putting it in suspense?

Sir GARFIELD BARWICK - No. The magistrate is able to decide the question then and there and the parties have the right of appeal against his decision.

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