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Thursday, 17 November 1960


Mr WHITLAM (Werriwa) . - I move -

That the following new clause be inserted in the bill:- " 13a. Section twelve a of the Principal Act is amended by omitting sub-section (2.).".

The purpose of the amendment is to ensure that those who commit offences which this bill and the principal act describe as indictable shall be tried by jury. This would cure one of the six specific faults which the Leader of the Opposition (Mr. Calwell) listed in the amendment which he proposed at the second-reading stage, namely, that the bill failed to uphold the principle of trial by jury for all offences under the bill and the act.

Section 80 of the Constitution says that trial on indictment of any offence against any law of the Commonwealth shall be by jury. We have by-passed that provision. This has proved a deception and a disappointment to the Australian people. It is one of the very few safeguards that exist in the Constitution, and it has been rendered completely nugatory by the Parliament providing that many offences, however serious in character, and however severe the penalties they attract, shall be tried summarily. The intention of the Constitution was, of course, that any serious crime should be tried by jury, and that any person guilty of such a crime should be punished only after conviction by a jury. We have simply by-passed this principle in one piece of legislation after another passed by this Parliament. One particularly clever device is in sub-section (2.) of section 12a of the principal act, which provides -

A Court of Summary Jurisdiction 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.

The Labour Party does not object to offences which are declared to be indictable under the act being tried summarily if the accused so desires. The accused may desire a summary trial instead of a trial by jury in order to have a swifter trial or a less expensive one, or so that he may be liable to a lesser penalty, a magistrate having narrower powers to impose penalties than a judge. We do object, however, to a jury trial being denied to a person simply because the property involved in the offence is worth no more than £50.

The full gravity of the situation can be seen when one realizes that a person does not have to be put on trial in respect of all the property which might be the subject of an offence which he is believed to have committed. He need be put on trial in respect of only some of the property, and if that portion of the property is worth less than £50, he can be tried by a magistrate. If he is convicted or sentenced in a manner which he feels is unjust, he can then appeal to a single judge, who, in most of the States would be a district court or county court judge. That means that he has not the protection of a jury or of a Supreme Court. The Opposition's amendment will permit this anomaly to be cured. I do not know whether the Attorney-General, in dealing with the Opposition's amendment, will refer to the amendment concerning a new clause 13a which he has circulated.


Sir Garfield Barwick - I think it would be better to talk about the two together.


Mr WHITLAM - Yes. The AttorneyGeneral has circulated an amendment which would restrict trial by jury to the offences of treason, treachery, sabotage, espionage and serious breach of official secrets. We on this side of the committee do not feel that that would be a sufficient safeguard. Section 7 of the principal act states -

Any person who attempts to commit any offence . . shall be guilty of an offence and shall be punishable as if the attempted offence had been committed.

The consequence is that if a person attempted to commit treason, treachery, sabotage, espionage or a serious breach of official secrets, he would have no guarantee of trial by jury.


Mr Snedden - I think he would.


Sir Garfield Barwick - I said I thought he would. If the Deputy Leader of the Opposition looks at the way the proposed amendment reads, he will see that.


Mr WHITLAM - The amendment which the Opposition has moved will remove any doubt on the matter. I think that there is some doubt, and I am fortified in that view by the answer' that the AttorneyGeneral gave me on Tuesday. When he was addressing the committee and dealing with indictable offences, I said -

Your amendment would not catch an attempt to commit such an offence.

He replied -

That may be right.

The matter ought to be put beyond doubt, Sir.

Furthermore, there are many offences beside the five serious kinds which will be introduced or newly enunciated by this bill which are in the act also. A very great number of offences is listed in the act and declared to be indictable. Many of them carry reference to and relate to property which is worth £50 or less. Obviously, of course, attempts to commit any of these crimes such as serious breach of official secrets, espionage or sabotage may relate to such property, and we can think of cases in which treachery or treason would relate to property worth £50 or less. Among the other offences in respect of which property worth £50 or less very clearly would be concerned are the offences listed in sections 32, 33 and 37 of the principal act, which relate to judicial corruption, official corruption and the subornation of witnesses. In each instance, the word " property " is used, and if the property to which an offence related were worth £50 or less, the person who had taken the property with the improper purpose could be tried summarily and would have no right to trial by jury. One could in fact have an extraordinary position in which a federal judge - even the Chief Justice of the High Court of Australia - could be tried by a magistrate for judicial corruption.

Then there are sections 52 to 60 inclusive, which deal with coinage, section 69, which deals with the making of special paper - presumably paper of the type which is used for banknotes or Commonwealth bonds - and section 86, which deals with conspiracy to defeat various Commonwealth laws. All _the crimes mentioned in these provisions are serious crimes, Sir. They all can relate to property. In most cases where coinage or paper was concerned, they would relate to property worth £50 or less.

We feel that in all these matters we should ensure that in respect of an offence which is said to be indictable, the accused person should have the right to trial by jury. If the Attorney-General is to make a proper review of the Commonwealth Crimes Act, this is an opportunity for him to see that in respect of this legislation that right to trial by jury is preserved by expunging from the statute-book that provision in section 12a of the principal act which has by-passed the provisions of section 80 of the Australian Constitution and enabled us to deceive our citizens and deprive them of the rights which they were intended to have.







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