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Thursday, 17 November 1960


Mr SNEDDEN (Bruce) .- Mr. Temporary Chairman,the Deputy Leader of" the Opposition (Mr. Whitlam), in the latter stages of his address to the committee, resorted to page 560 of volume 10- of the third edition of "Halsbury's Laws of England". When I asked him what he was quoting from, he said that he was quoting from footnote (s.). He referred also to and read part of a passage which has been cited by Lord Mansfield. I regret very greatly that I have to inform the committee that the Deputy Leader of the Opposition has misled it by his reading of those passages. As I have said, the honorable member read fotnote (s). That footnote says: -

The principles underlying such decisions as are cited in notes (m), (p), supra,- that means " above " - are illdefined and the law of treason enunciated has according to Sir James Stephen been unduly stretched; . . .

The point is that the Deputy Leader of the Opposition was using this footnote to support his contention that the words " levying war " would cover riots for industrial purposes. I think the committee ought to know what is contained in the passage in " Halsbury " where the footnote occurs. That passage reads -

Acts of piracy may also, it seems, be charged as treason if there is an intention to take the Queen's ships as well as those of subjects. Some forms of tumult formerly held to constitute treason would probably now be treated as treason, felony, riot or malicious damage.


Mr Whitlam - Will the honorable member read the passages to which footnotes (m) and (o) refer?


Mr SNEDDEN - I have read them.


Mr Whitlam - No, the honorable member has not.


Mr SNEDDEN - The earlier parts of " Halsbury " put the highest level of treason. It then explains as it goes through them the lesser forms of treason and ends with the statement that these things would probably no longer be regarded as treason because, as is pointed out, there is specific legislation to cover them and they would probably be treated as treason felony, riot or malicious damage. This is the passage that footnotes (m) and (o) refer to -

The levying of war may be of two kinds: - (1) express and direct, as raising war against the Sovereign or her forces, or with a view to surprise and injure the Sovereign's person, or to imprison her or to force her to remove any of her ministers or counsellors, and the like; -

All these, of course, are matters which are specifically covered in paragraphs (a) and (b) of sub-section (1.) of proposed new section 24 of the principal act. The other kind of treason - the constructive kind - is stated by " Halsbury " in these words - or (2) constructive, as when there is a rising for some general public purpose, as to effect an alteration of the law, or to alter religion established by law, or to throw down all enclosures, or to open all prisons, or to pull down all meetinghouses. A person who takes part in any such acts, even though he had not previously aId formed intention of taking part in them is guilty of treason. lt was in the very nature of this thing that we had the statement by Lord Mansfield in the case against Lord George Gordon. I think it is important for me to read the full statement that was made by Lord Mansfield. The Deputy Leader of the Opposition purported to quote from this statement, but he quoted only a couple of sentences of it and - deliberately, I am sure - left out the sentences which were against his argument. In order to enable the committee to form a judgment, I propose to read the sentences which the honorable member left out. Perhaps I had better start at the second paragraph of the particular part of Lord Mansfield's statement which relates to the levying of war. As I understand it, this was a direction by him to a jury. He said -

Insurrections by force and violence to raise the price of wages, to open all prisons, to destroy meeting houses, nay to destroy all brothels, to resist the execution of militia law, to throw down all enclosures, to alter the established law, or change religion, or to redress grievances real or pretended, have all been held levying war.

What Lord Mansfield was doing at that stage was stating facts on which people have been convicted of treason extending back over the centuries. He went on to say -

Many other instances might be put. Lord Chief Justice Holt, in Sir John Friend's case, says, " If persons do assemble themselves and act with force in opposition to some law which they think inconvenient and hope thereby to get it repealed, this is a levying war and treason ".

Now I come to the important part that was left out by the Deputy Leader of the Opposition -

In the present case it does rest upon an implication that they hope by opposition to a law to get it repealed, but the prosecution proceeds upon the direct ground that the object was by force and violence to compel the Legislature to repeal a law.

That is an entirely different thing from riot in order to raise wages or achieve some other industrial prescription. The important words are -

.   . but the prosecution proceeds upon the direct ground that the object was by force and violence to compel the Legislature to repeal a law, and therefore without any doubt-

This is where the Deputy Leader of the Opposition resumed his reading -

I tell you the joint opinion of us all that if this multitude assembled with intent by acts of force and violence, to compel the Legislature to repeal a law, it is high treason.

Those statements are quite clear. There is a multitude of cases on what " levying war " means. In my view, there can be no doubt about that. The Deputy Leader of the Opposition said that the provision is vague and that people do not know what it means. He said that if it were precise, the Opposition would support it. The Deputy Leader of the Opposition, I am sure, really does not believe that this is imprecise. Such imprecision as may be there is the imprecision that is part and parcel of every criminal offence. The imprecision is merely this: Will the jury be satisfied beyond all reasonable doubt? We cannot say that a man who does this, and then specify (a), (b), (c) and (d), will be guilty. We would need 25 alphabets and more to say that if a man does this he is levying war. What we do is to say that it is an offence to levy war, and then a jury of twelve good men and true will decide on the facts whether it is proved beyond reasonable doubt to them that the offence has been committed. There is no lack of precision, and the Deputy Leader of the Opposition ought to encourage his supporters to abandon the stand that they have taken on this paragraph (c). The Opposition seeks to eliminate paragraph (c) of proposed new section 24(1.), which reads - (1.) A person who-

(c)   levies war, or does any act preparatory to levying war, against the Commonwealth; shall be guilty of an indictable offence. . . .

The elimination of this provision would be intolerable. It would create a situation in which a person could seek to levy war without committing an offence. If somebody raises a rebel group--


The TEMPORARY CHAIRMAN -

Order! The honorable member's time has expired.







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