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Thursday, 17 November 1960

Mr WHITLAM (Werriwa) .- Mr. Temporary Chairman,the Attorney-General did not explain how it was that at the time when he made his second-reading speech on this measure either he did not know the law or he misled honorable members as to the law. He said that the Attorney-General of the day institutes these prosecutions in all cases. That was not true. He had not read his books. He was in the very numerous company of those whom he himself charges in this regard with not having read their books. He was in the company of Sir John Latham, Professor Sawer, Professor Stone, Mr. Kerr and others.

Sir Garfield Barwick - I hope I was not in their company.

Mr WHITLAM - The honorable gentleman says he hopes he was not in their company. He was, at least in this regard, because he had not read his books, and he has charged all those learned gentlemen with not having read their books.

The Minister's objection to this amendment is that it is too wide. His projected amendment which is designed to insert in the principal act a new section 24ac will not be wide enough. He would not have thought of it at all - obviously, he had not thought of it at the time when he made his second-reading speech - if the Opposition had not circulated the proposed amendment which we are now considering. The list containing this amendment was circulated on Tuesday of last week, and the Minister's proposed amendment did not come to light until Thursday of last week. In other words, this gap in the law would have remained open had we not taken the action that we have taken. The Attorney-General has now agreed that official prosecutions only shall be launched in cases of treason, treachery and sabotage. The principal act already provides that official prosecutions only shall be launched in respect of espionage, breach of official secrets, impersonation, unauthorized wearing of uniforms and so on.

The Attorney-General quotes two cases of citizens being precluded from exercising their rights to show that we have cast the net too wide. But the way he will leave it in his amendment which he has circulated and which he will move in due course will mean that there will be official prosecutions in the cases of treason, treachery and sabotage but there will still be private prosecutions for the purpose of malice or extortion in the case of sedition, inciting mutiny, assisting prisoners of war to escape, unlawful drilling, interfering with political liberty, destroying or damaging Commonwealth property, false pretences or false representations in statements or seizing goods in Commonwealth custody. Why should a citizen have to launch a private prosecution for the seizure of goods in Commonwealth custody or for destroying or damaging Commonwealth property? The Commonwealth knows when these offences have occurred; the private citizen does not know.

The honorable gentleman says that if prosecutions are left to officials to institute, the officials will cover up for their colleagues. He is asserting in the amendment which he foreshadows that if treason, treachery or sabotage have been committed by a Commonwealth official, the AttorneyGeneral would want to cover up. There was an Attorney-General whose brotherinlaw was interned during the last war, and he covered up for him. If such an Attorney-General wants to cover up for any official, any friend or any relative, he will not institute a prosecution. That is what the Attorney-General is saying. He is assuming that he or the persons whom he authorizes or the persons who succeed him will not do their duty. There is no doubt that if a private citizen knew that there was an infringement of political liberty, which was an offence against this act, and, having brought it to the notice of the Attorney-General, the Attorney-General did not do anything about it or covered it up, he would bring it to the notice of some one in this place and it would be raised here. No Attorney-General who condoned an offence against the Commonwealth Crimes Act would long escape any citizen who felt aggrieved. The citizen would have his remedies available to him and no Attorney-General would venture to fall down on his job and neglect his duty. This is quite plain.

If the Attorney-General does not like our amendment and if he thinks that there should be some safeguards or some provision for private citizens to commence prosecutions under Commonwealth laws, let him do it. He says that our amendment goes too far. His, equally clearly, does not go far enough. I agree with him that private citizens should have the right to institute prosecutions for breaches of the criminal law, but the Commonwealth Crimes Act does not deal with the criminal law in the traditional sense. The Commonwealth Crimes Act deals with crimes that we did not inherit from Great Britain and that we have not in fact regarded as normal in this country. It deals with offences against the Government, protection of the Constitution and Public Service, offences relating io the administration of justice or the coinage or offences by or against public officers - all of them quite clearly official matters. They are matters for which the Commonwealth, through the Attorney-General or persons whom he authorizes, should take responsibility. These matters should not be left open to abuse by private citizens.

Private citizens should have their right to institute prosecutions for breaches of the criminal law as it is normally understood. But private citizens should not have the right to extort or blackmail or indulge in vendettas against their fellow citizens for breaches of the Commonwealth laws which they imagine have occurred. The AttorneyGeneral is singularly unimaginative in this regard. He has quoted two cases in which we would have deprived the citizen of his rights, although the citizen would still have his rights. I have quoted several cases in which he has allowed citizens to abuse the processes of the criminal law.

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