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Thursday, 17 November 1960


Mr CAIRNS (Yarra) .- I want to refer to the clauses that have been discussed already in this short debate. I hope I can do so without unnecessarily covering ground that has already been covered.


The CHAIRMAN - Do you want to reopen the debate on clauses already passed?


Mr CAIRNS - No. I do not propose to cover ground that has already been covered by the honorable member for Isaacs (Mr. Haworth), the honorable member for Wills (Mr. Bryant), and the AttorneyGeneral (Sir Garfield Barwick). Clause 10 which amends section 8a of the principal act provides for the extension of the power of arrest to offences suspected of having been committed against the law of a Territory. I want to stress that it is not only in the case of offences that are not indictable that some special safeguard is needed here, but in relation to all offences and, in particular, offences that are indictable.

It is worse for a person to be wrongfully arrested for a serious offence than for a minor offence. I know that this power to arrest is specifically based upon common law which contains power more extensive than the power in this provision. This applies to a breach of the peace or an offence against the law of the Commonwealth which amounts to a breach of the peace, and this is less extensive than the common law power. I would like to ask the Attorney-General to carry into effect the suggestion that he made at the conclusion of his remarks - that instructions should be given by the Commonwealth that arrests should not be made when the persons concerned can be reached because their address is known and it is reasonably believed that they are not likely to disappear. We have known of many cases in which arrests have been made when it was quite clear that the offenders could have been reached and secured by summons. I think an instruction from the authorities concerned upon this point is most necessary.

Section 10 of the act provides -

If a Justice of the Peace is satisfied by information on oath that there is reasonable ground for suspecting ... he may grant a search warrant authorizing any constable named therein-

Then follows a description of what the constable may be authorized to do. Here again I am not suggesting that the bill can significantly limit this power. If the provision is going to operate at all, it must be substantially in this form. In other words, somebody must be in a position to authorize the granting of a warrant. But experience has shown that the issue of such a warrant by a justice of the peace is very often a completely informal matter. The police bring warrants to justices of the peace, who merely sign them without making an adequate inquiry into what is going on.


Mr Whitlam - Just a matter of form.


Mr CAIRNS - Yes, completely a matter of form. In the case of serious offences I believe that consideration should be given to granting authority under this provision only to magistrates, who in fact make careful inquiries into applications of this kind. Generally speaking, justices of the peace act as rubber stamps. To extend such great powers to persons who, very often, are given an office merely for the status that it provides is, I think, anachronistic. No longer is the justice of the peace the significant law-maker or law-enforcer that he once was.

Finally, I say that in relation to both these procedures, the power of arrest and the power of search, the Attorney-General believed that there was a safeguard in the provisions of the law enabling an aggrieved person to take action. This redress that is available to an aggrieved person is very much restricted in the legislation, as the person concerned does not have a right to go to a court. The relevant section of the act, which I think is section 85, says that such a right is in the hands of the Governor-General in Council.


Sir Garfield Barwick - That is limited to the other sections; it does not touch this one.


Mr CAIRNS - That being so, those are the only points that I wanted to make in relation to these clauses.







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