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Thursday, 17 November 1960

Sir GARFIELD BARWICK (Parramatta) (Attorney - General) . - I move -

In proposed section 24 sub-section (1.), omit paragraph (d), insert the following paragraph: - " (d) assists by any means whatever, with intent to assist, an enemy -

(i)   at war with the Commonwealth, whether or not the existence of a state of war has been declared; and

(ii)   specified by proclamation made for the purpose of this paragraph to be an enemy at war with the Commonwealth; ".

This is the amendment of which I spoke earlier and it has two elements. First of all, it inserts the words " with intent to assist " which, as I have already indicated is an extension of the clause which already contains the word " assists ". As a means of demonstrating good faith in the matter I have suggested that they be put in. The other change made by the proposed amendment to the bill covers this point: That whereas the bill provides that the offence of assisting an enemy at war with the Commonwealth is an offence whether or not there is a declaration of the existence of a state of war, it has been said by a number of people that somebody might assist an enemy with intent to assist him, without knowing that he was an enemy. I find this difficult to believe. The whole point of the offence is that he must have an intent to assist an enemy. For somebody to say that one might accidentally, but with intent, assist a chap he did not know was an enemy does not seem to make sense. However, there is no need to leave any doubt in the matter, so I have made an additional element in this paragraph - that the enemy will have been proclaimed to be an enemy of the Commonwealth, by the Executive. In this case the proclamation does not have to follow any parliamentary process. It is left entirely to the Executive. I think honorable members should observe that the clause still requires that the enemy be, in fact, an enemy and, in fact, at war with the Commonwealth. Therefore, a declaration or proclamation will in itself not be proof that the party is an enemy or is at war; but it will be an indispensable part of the offence that there should have been a proclamation.

At first sight, it looks a little odd that the first part of the proposed paragraph states - assists by any means whatever . . an enemy . . . whether or not the existence of a state of war has been declared. In the following subparagraph it is stated that an enemy must have been declared to be an enemy at war with the Commonwealth. There is no inconsistency in these two things, because the declarations to which the two subparagraphs refer are quite different. The first has reference to a former international courtesy by which one nation did not begin war until it had announced that it was at war. That habit has long since fallen into disuse. The second proclamation has nothing to do with the international situation. It is purely for domestic purposes and for the purposes of the section.

I feel that this is an extremely cautious step to take, because we all know that whenever this country has been at war the Prime Minister of the day has announced it in this Chamber, and few people would be in doubt as to who was or was not an enemy at war with this country. However, some point was made in this respect, and I have thought it better to set these things at rest when they can be set at rest. Therefore, I submit this provision for a proclamation to be made of an enemy. If that is not made, the offence of treason will not be committed. The offence has to be assistance to an enemy with intent to assist the enemy, and the enemy must be in fact, an enemy and in fact at war with the Commonwealth. In addition, the Executive must have declared the party to be an enemy at war with the Commonwealth. I do not think I can go further in trying to make this so plain that nobody, however illinformed, could manage to misunderstand what duty was being cast upon him.

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