Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Thursday, 17 November 1960

Mr CHRESBY (Griffith) .- I think my learned friend, the Deputy Leador of the Opposition (Mr. Whitlam), will undoubtedly agree that the fundamental principle of law is that it tends to conform to reason and what is not reason is not law. On that basis, it is obvious to anybody who has been a student of these matters, particularly in the common law field, that, over the years, we have built up the common law principle that it is the individual's right to protect his rights. In fact, it is obligatory upon him to protect his own rights. He is solely responsible for his own rights.

Starting with that basis, we have gradually developed over the centuries the principle that it is also the right of any individual to apprehend another under common law if he believes that other person to be guilty of committing a breach of an act and, in some cases, even if he believes that other person to have an intention to commit a breach of an act. But in doing so he must provide proof to justify the action he has taken, or suffer the consequences. As the Attorney-General has pointed out, and as the honorable member for Bruce (Mr. Snedden) has mentioned, there is a provision dealing with malicious prosecutions.

I have a great deal of respect for the Deputy Leader of the Opposition, but in this case I feel that, knowing the common law as he does, he has been talking somewhat with his tongue in his cheek. When dealing with this particular provision, he has made sweeping references to a former Attorney-General, Chief Justice, a professor and so on, and has put their opinions against those of the Attorney-General.

Having conducted cases in court, the Deputy Leader of the Opposition should know the rules of evidence. He should know all about the rule relating to hearsay evidence and so on. He should know that if you propose to take somebody's opinion you must relate that opinion to the particular matter being dealt with. It is all right to say that somebody has condemned the Crimes Act, but you have to read and find out what sections he dealt with, how he dealt with them and what is the basis of the evidence that he submitted. Speaking purely as a student and not as a lawyer I think that, as the honorable member for East Sydney (Mr. Ward) would not know, but as the Deputy Leader of the Opposition would know, Jennings has said that a student is entitled to express his opinion and that until it is disproved by a judicial opinion he is entitled to hold it. On that basis, I am stating, on pure common law, it has been the right of the individual to protect his own rights, if he thinks he is right. In this case, where he is being defrauded in some way, he has the right to take the initial action and if he does so he also automatically elects to take the consequences of his action if it is proved wrong. On that basis I am satisfied with the provision that the Attorney-General has put forward.

Suggest corrections