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Thursday, 17 November 1960


Mr WHITLAM (Werriwa) (12:15 PM) . - I move -

In proposed section 24, sub-section (1.), omit paragraph (f).

We move this amendment because we object to making it treason to form an intention to do any act referred to in a preceding paragraph of the sub-section, and manifesting that intention by an overt act. We object to this paragraph because it covers the levying of war or the doing of any act preparatory to levying of war against the Commonwealth. If the paragraph referred to all the preceding paragraphs other than paragraph (c), which is the one referring to the levying of war, we would not object to it. Since it does refer to paragraph (c), we are moved to vote against it.

The Attorney-General said that all these definitions of treason were either in the common law or in the Queensland criminal code drawn by Sir Samuel Griffith. It is interesting to note, as I pointed out before, that neither in the common law, in the statute of Edward III., nor in the Queensland criminal code of Sir Samuel Griffith, is it provided that it is treason to do any act preparatory to levying war. This has never been previously classed as treason in any English-speaking country, as far as I can discover. No honorable member has referred to it as being treason, and the Attorney-General, in his multitudinous opportunities to comment on the matter, has not referred to it. We can take it, therefore, that it has never been provided, before the introduction of this bill, that it is treason to do any act preparatory to levying war.

The Queensland criminal code, from which many of the phrases in this proposed section come, does provide that it is treason to form an intention to do any such act as aforesaid, and manifest such intention by any overt act. The sub-section which makes it treason to do so occurs immediately after the two sub-sections corresponding to paragraphs (a) and (b) in this legislation. That is, in the Queensland criminal code, which has been copied in Western Australia and Tasmania, it is treason to kill the Sovereign, or to kill the eldest son or heir apparent, et cetera, or to form an intention to do any such act and manifest such intention by any overt act. But it is not provided in Queensland, Western Australia or Tasmania, the three Australian States in which there are statutory provisions covering treason, that it is treason to form an intention to do any of the other acts which are described as treason. Here, again, the proposed section 24 makes more things treason than have been treason hitherto. I would ask the AttorneyGeneral to explain, if he will, how one would prove that an accused person had formed an intention to do any act preparatory to levying war. It is the forming of an intention to do an act preparatory. There has been no explanation of what preparatory means in this context: It could indicate either causation or sequence, that is it could indicate that a person was aiming to levy war or had done something, perhaps inadvertently, towards levying war. But the re-arrangement which the Attorney has made of the Queensland provisions has resulted in the extension of those provisions and will mean that it will be made treason to do things henceforth in Australia which it has not been treason to do in Australia hitherto, and which it has not been treason to do hitherto in the United Kingdom.







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