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Thursday, 17 November 1960

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - Mr. Temporary Chairman, it is perfectly obvious to every one in this chamber, and, I suppose, to any one who has taken the trouble to listen to the broadcast of these proceedings, that the Opposition has come down to a pretty low ebb on this occasion, because we have had to listen to the Deputy Leader of the Opposition (Mr. Whitlam) carrying on a conversation, assisted by the honorable member for Hindmarsh (Mr. Clyde Cameron), on matters of law. There are limits that should be observed, of course, and probably the Deputy Leader of the Opposition has very much to learn.

This amendment is very interesting, coming from a Labour Opposition. I should have expected to hear the Opposition loudly calling for the fundamental constitutional right for any citizen to set in motion the processes of the criminal law. Section 13 of the principal act embodies a timehonoured and well-entrenched constitutional principle from which the Deputy Leader of the Opposition wants to depart in respect of all federal offences. He called our atten tion, on the last occasion on which he was on his feet - or the second last, for these occasions are sufficiently frequent for me to lose count - to the fact that section 33 of the act provides that any person who, being a Commonwealth officer employed in a capacity not judicial for the prosecution or punishment of offenders, corruptly asks, receives or obtains any property or benefit of any kind for himself on account of anything already done or omitted to be done, with a view to corrupt or improper interference with the due administration of justice under the law of the Commonwealth, commits an indictable offence.

Let us expose the Australian Labour Party's proposition. It is that if a Commonwealth officer takes a bribe to hold a man longer than he should or to do something else that he should not do in the administration of justice, the man who is hurt cannot bring proceedings, but must wait until the official machine has moved. The Attorney-General of the day may then say, " I will not have my public servants exposed to prosecution. I am head of a department, and I shall protect my officers." The Labour Party's proposition is that the citizen shall be left without any remedy at all. I should have thought that the members of that party would have been the very first to say that this was not proper.

Let me give the committee other illustrations from the statute. Section 28 of the act makes it an offence to interfere with political liberty by the use of violence or threats. The Opposition's proposition is that a citizen whose political liberty has been interfered with has to wait on the Attorney-General to see whether he is to enjoy his political liberty. Fancy the Labour Party proposing that in this Parliament! Imagine it! Of course, on this occasion, that party has made some sort of a bargain with somebody to oppose this bill at every step, and whether the party's views make sense or make nonsense, we are to hear them. I have no doubt that in due course I shall hear a great deal of noise because I have to use the closure from time to time in order to be able to get on sensibly with the business of this place, and that I shall be regarded as being oppressive.

One has only to consider this amendment for two minutes in order to see what it is worth. Listening to the Deputy Leader of the Opposition was bad enough, and I think that when one looks at the amendment and sees what the Opposition really proposes one recognizes that the amendment deserves pretty short shrift. One needs to think of this amendment along with amendment No. 10 in the list which I circulated, which proposes to insert a new section 24ac in the principal act. That proposed new section will provide that in relation to these public offences - offences against the people themselves - of treason, treachery, sabotage and espionage, some official consideration ought to be interposed and that people ought not to be exposed to the possible enmities and malice of fellow citizens. I think that is a reasonable proposition. In respect of the cases relating to official secrecy which proposed new section 24ac will not cover, existing section 85 of the act protects people from prosecution except with the official consent of the Attorney-General or a person acting under his direction.

There are quite a number of these offences - I have instanced only one or two - in respect of which it is absolutely essential that the private citizen have the right to set the law in motion. He does so at his own risk, of course. The law provides a remedy against him if he does it maliciously, and from time to time we hear of a case for malicious prosecution being brought against a person who has maliciously set in motion a prosecution. Very considerable sums are awarded in damages, because the damages are not limited merely to the costs that are wasted. In an action for malicious prosecution, a jury is entitled to punish the person who has been malicious in setting in motion the criminal law and to recompense the plaintiff as well.

These are well-known and time-honoured processes of the law, and we have had to wait until 1960 for some new genius to tell us that it is better that officialdom control the rights of the individual. Is not this something new - that officialdom should control the rights of the individual? We on this side of the committee do not agree with that. We think that an individual who is hurt ought to have a right to approach the law at his own expense, and that in respect of offences against the public, the interposing of the Attorney-General and his officers between the individual and a prosecution is truly fair enough.

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