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Thursday, 17 November 1960


Mr BRYANT (Wills) .- The attitude of the Attorney-General (Sir Garfield Barwick) on the question of uniformity is an astonishing quibble. He has said that he cannot accept our amendment because it would be possible that a person to be charged under State law and another under Commonwealth law and therefore be treated differently. That is exactly the result that will emerge from the principles applying in the bill. Under the bill, a person could commit the same offence in different States and as a result of his record, be treated as an habitual criminal in different States. This could happen to a person over seventeen years of age in Tasmania - I think that is the minimum age at which a person may be declared an habitual criminal in Tasmania - or at 25 years in New South Wales.

It is not the province of this Parliament to preserve illiberal tendencies even if they have the sanction of State Parliaments. The purpose of this Parliament is, if possible, to set standards and to provide a guide to other jurisdictions. Therefore, in this matter, the duty of the Attorney-General is to be not illiberal but liberal. If New South Wales, as a result of twenty years of humanitarian socialist government - has advanced to this point along the road in penal procedure that is the example we should follow. I have no sympathy whatever with the plea that because the States have preserved some of these illiberal tendencies in their own laws, we should foster them.

The attitude of the Attorney-General a few moments ago was inconsistent with the attitude that he has adopted in the case of marriage and divorce. Certainly, in the case of divorce, he has taken the most liberal provisions in each State act as a basis upon which to work. Yet here, in an approach to ordinary human problem* he is prepared to take the most illiberal provisions! This, of course, shows that the

State boundaries are simply traditional and historical and have no application to Commonwealth law.

In dealing with crimes against Commonwealth law or the security of the Commonwealth, the first consideration should be the attitude of this Parliament. In this case, as with almost every major provision of this bill, I believe that the AttorneyGeneral is going against the tide of history. People have fought for hundreds of years to make the case of the prosecution difficult. The non-admissibility of hearsay evidence, the presumption of innocence, and trial by jury, all at some stage have been won as a result of a revolution, bitterly contested by the powers that be. In this Parliament we should be stepping along the road of evolution towards the protection of the individual, towards more liberal penal procedures. In this case, the Attorney-General is adopting the constitutional obstructions of the last 60 or 70 years as an excuse not to set himself up as a standard bearer or to use this Parliament as a guide to the rest of the Commonwealth.







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