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Thursday, 17 November 1960


Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - This clause seeks to introduce into the law of the Commonwealth a more complete law of treason than is presently found in the existing section 24. The clause has given rise to a good deal of public discussion. A good deal of opinion has been offered as to what it would permit and what it would cover. It seems appropriate that at the outset I should say something about what clause 24 will do and why the Government proposes it and for that matter, why it is proposed at this time. I think it proper, first, to call the attention of the committee to what is provided by the existing section 24, and this needs to be very carefully remembered. Section 24 (1.) provides -

Any person who within the Commonwealth or any Territory -

(a)   instigates any foreigner to make an armed invasion of the Commonwealth or any part of the King's dominions, or

(b)   assists by any means whatever any public enemy, shall be guilty of an indictable offence and shall be liable to the punishment of death.

I call the attention of the committee most forcefully to the portion of that section which reads " assists by any means whatever any public enemy ". Those two portions of section 24 do not, of course, cover the whole of the common law of treason. When I refer to the common law of treason 1 refer to those rules of law which were first of all developed by judges in the early days and which were then picked up in the statute of treason in 1351 and were subsequently developed by judicial expansion of the statute of treason itself. That common law came into this country when Governor Phillip put his foot on Kurnell and it has been accepted as either colonial law or State law ever since, except to the extent to which some States have purported to codify their law in this respect by statute. Three States, Queensland, Western Australia and Tasmania, have done so. This element of common law covered more than section 24 covers. The committee will remember that the Commonwealth did not inherit any such common law. The Commonwealth was not the subject of colonization; it was inaugurated by an act of the British Parliament. Any law of this kind that the Commonwealth desires to have as federal law must be introduced by statute. In 1914 these two parts of the common law of treason were legislated in the Crimes Act of that year.

Honorable members will remember that at an earlier stage of the debate I directed attention to the difference in status of this country now compared to what it was in 1914. In 1914 we were part of the British Empire and we could rely upon imperial law to look after so much of the common law of treason in the federal sphere as was not lifted into it by these two provisions. The Fisher Government in 1914 chose these two provisions and, in particular, chose the expression " assists by any means whatever " - any public enemy - as representing some part of that common law. This, in truth, it did.

The purpose of a law of treason is to protect the way of life of a people. If a country is a monarchy you need to protect your sovereign by a law of treason. If you are a parliamentary democracy, as we are proud to be, you need to protect your parliament against being overawed by force and violence to compel it to take a course which it otherwise would not take. You need a law of treason to ensure that none of your people traitorously assists the enemy in time of war. This is a very necessary element in protecting your country. You need a law of treason to protect your territorial integrity to ensure that you are not invaded and that your people do not assist or instigate those who would invade your country. These are the great purposes of the law of treason.

In 1914, the first proposition that I mentioned - the protection of our sovereign who was then King of the Empire - was effected by imperial law and there was no need to do in 1924 what I propose to do in this clause, namely, to bring in as treason the killing, maiming or wounding of the Sovereign or of the heir apparent. That was looked after by imperial law. But the position has changed completely. To-day we are an independent country. We have a Sovereign of our own. The Queen is the Queen of Australia, but there now is no federal law to protect her. Let me make the point quite clear so that Australians will understand. If, during a visit to Australia, the Queen was either killed or maimed in a State, the national government would have no law to deal with the offender. It would need to go to the State Attorney-General concerned and plead with him to apply some State law. Is this consonant with the dignity of this country? Is this consonant with our duty to the Sovereign who is now our Sovereign? This change is dramatic. What was good enough in 1914 is not good enough now.

I have heard the critics ask why the Government is taking this action now. Are we all to remain idle when we know that there is no federal law to protect our Sovereign and when there is no federal law relating to the performance of our duty to that Sovereign? Is this the wrong time to advance this proposal? Should it be put aside for six months or five years? While I am doing a routine tidying-up of this so out-of-date act, should I allow it to be said of me that I was good enough to tidy up the law about coinage and that I was good enough to tighten up the law about habitual criminals, but that I was not good enough to introduce a law to protect the Sovereign? It is just too silly for words!

There is another provision in this clause relating to levying war against the Sovereign or the country. In 1914 we could rest on imperial law to protect us against civil war, because levying war covers the element of attempting to depose the Sovereign; attempting to overawe the Parliament by force and violence, and attempting by force and violence to take government out of the hands of the government. That is what levying war means. Does the Labour Party suggest that this country, this national government and this national Parliament should not enact a law to protect iself and to protect its Sovereign against force and arms which are being used in an attempt to take control out of the hands of a democratically elected government? Does the Labour Party stand before the people of Austraia and say, "We do not mind if armed bands come to this national capital to coerce the government"? Not so long ago the Labour Party joined in sending to prison a man who attempted to coerce a single member of this place. He was found guilty of a breach of privilege.

The Opposition has submitted an amendment which seeks to take out of the clause that portion which relates to levying war on the Commonwealth - that portion which means that you cannot, by force and arms, attempt to depose the Sovereign; that you cannot, by force and arms, try to overawe the Houses of Parliament; that you cannot, bv force and arms, attempt to compel the Government to adopt any particular course. One wonders why the Opposition wants that portion of the proposed new section deleted. How can people hold up their heads if they refuse to accept a law of this kind?

I have twice repeated that the words " assist by any means whatever " are already in the act, and have been in the act since 1914. In years of practice I have never heard any one suggest that an accidental assistance of an enemy would fulfil this prescription. I should imagine that the judge of any court would laugh heartily if a prosecutor said to an accused person, " You are guilty of treachery by accident ". This would not be possible because those who know this subject know very well that when a person is accused of assisting any one in this sense it does not mean that by some inadvertence or by some act on the bv-wind the accused person assisted the enemy. It means that an accused person, with his mind and with his intent, assisted the enemy. That is plain English, and I should have thought that it would be perfectly plain to every one.

Let me tell honorable members and the people of Australia the history of this matter. In 1878 the British thought that they would lay down a criminal code. They appointed four of the greatest lawyers of the day, one of them perhaps the greatest criminal lawyer of all time - Lord Blackburn. The others were Mr. Justice Lush of the High Court, Sir James Fitzjames Stephen, and Mr. Justice Barry of the Irish judiciary. Those four men produced a draft code, and they solemnly certified that the words, " assist by any means whatever " represented that portion of the common law. But the British did not adopt the code and it was. left as a draft code. Sir James Fitzjames Stephen included in his text-book the principle that the boy learning law reads - that the common law in this respect included the words. " assist by any means whatever ". Subsequently this was approved by the House of Lords. In 1882 Canada drew up a code and included in it, as representing this part of the common law, the words, " assist by any means whatever ". In 1893 the Government of New Zealand included those words in a statute as representing the common law. In 1897 when Sir Samuel Griffith, Queensland's first Chief Justice and one of its greatest, was drafting a criminal code for that State, he certified in writing that those words represented the relevant part of the common law. There is no question about it. None of the writers or critics can say that the common law will be satisfied unless there is a traitorous intent. They could not make this claim if they had read great cases like Ahlers Casement and Joyce. It is spread all through the book that you cannot be a traitor by accident. A person must be a traitor by intent. Then in 1902 Western Australia had a code, and it put these words in as representing the common law. In 1914 they were put into federal law, and in 1924 into Tasmanian law. It was left to this generation of lawyers to say that there was some possibility that the words were uncertain. Remarkable! We have a long chain of legal genius - not some practitioner of the moment - which fastened on those words as representing the common law. I and those who are helping me, left them in this act because we knew what they meant. I did not put them in. I left them there because I knew what they meant, because those round me know what they meant, and because history demonstrated what they meant.

But somebody - and I will come to that in a moment - began to cause public alarm. In all the years the common law had protected our liberty. In all the centuries no one had suggested that the common law endangered our liberties. It was the prop of our liberties. That those words represented the common law was beyond all dispute. There was no room for argument about that, yet somebody said, "Well, although in all the centuries it has never been suggested that these words interfered with liberty, they might ". When challenged, what was the answer? It was, " There is a high degree of probability that to-day they would be construed in the way the AttorneyGeneral says, but we are not worried about that; we are worried about 50 years hence. Some judge in the future might abandon his judicial character, forget history, forget the great compulsion of precedent, and run off on a quirk of his own." This has been built up in the public mind, partly by the press, until the people have become alarmed.

I came home from the United Nations after being away for five weeks, while this had been going on. There is nothing so disturbing to me as to learn that any member of this community would think for a moment that I would interfere with his liberty.

Opposition Members. - Oh!







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