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Tuesday, 22 November 1960


Mr CAIRNS (Tarra) .- Proposed new section 24aa goes to the root of the. proposals in the bill which may have an impact upon the political and social behaviour of members of the public: I support the Deputy Leader, of the Opposition in asking' the Government, if it is going, to enact legislation of. this kind, to make its meaning: as clear and precise as possible. Tt is of no use saying that a law which provides that it is an offence to do any act or thing with intent to overthrow the Constitution of the Commonwealth by revolution or sabotage is in any way clear and precise. Behaviour coming within the provisions of this proposed new section would depend completely upon the circumstances. In countries where these matters- have- reached the courts, such as the United States of America, it has been the responsibility of the courts to determine the circumstances of the alleged offence and to determine, in relation to the public disorder or commotion, the clear and present danger that exists in the circumstances. But in Australia there is no history of court decisions and no constitutional safeguard which would allow that kind of test to be applied.

This is an offence which' is vague and general, and it is based on the new offence of treachery. If the Government is concerned to define an- offence; why not do- so in a precise and objective fashion rather than attach to it a coloured term Such as treachery, which would be directed to prejudice the trial of- any person accused of an offence under this provision. To say that there is some historical antiquity favoring the use of such words as " treason " and "treachery" is no justification for their adoption in I960 by a. government that believes- in unprejudiced, trials and decency im law. This- kind of section has given rise to a number of cases in the United' States and the question of loyalty has been raised' in the courts. I want to refer the committee and those interested in this matter to a conclusion drawn by Zechariah Chafee recently.. The whole question of loyalty is put intoits proper context. He said. -

Behind the dozens of sedition bills in Congress last session-

That is, in the United States - behind teachers' oaths and compulsory flag salutes,, is a desire to make our citizens loyal to- their government. Loyalty is a beautiful idea, but you. cannot create it by compulsion and force.

At this early stage in the attempt to. introduce laws of compulsion and force in order to- achieve loyalty, I think attention should be drawn to the last ten years of history inthe United States in this connexion. Mr. Chafee1 went on -

A government is at bottom the officials who carry it on: legislators and prosecutors, school superintendents and police. If it is composed of legislators who pass shortsighted sedition laws by overwhelming majorities-

That was the shadow of the future in Australia - of narrowminded school superintendents who oust thoughtful teachers of American history and eightyearold children whose rooted religious convictions prevent them from sharing in a brief ceremony - a government of snoopers and spies and secret police - how can you expect love and loyalty? You make men love their government and their country by giving them trie Kind of government and the kind of country that inspire respect and love: a country that is free and unafraid, that lets the discontented talk in order to learn the causes for their discontent and end those causes, that refuses to impel men to spy on their neighbors, that protects its citizens vigorously from harmful acts while it leaves the remedies for objectionable ideas to counterargument and time.

The men who examined the situation in the United States came to the conclusion that loyalty, which this Government is trying to secure by this proposed new section, had' become, a cult and an obsession in the United States, hut it was negative. And no less a conservative than Senator William E. Borah said this -

The safeguards of our liberty are not so much in danger from those who openly oppose them as from those who, professing to believe in them, are willing to ignore them when found inconvenient for their purposes; the former we can deal with, but the latter, professing loyalty, either by precept or example, undermine the very first principles of our government and are far the more dangerous.

The concept that Senator Borah was putting was that danger to security can come from two sources - from those who openly oppose safeguards of liberty for reasons which may or may not seem good to themselves, and from those who, relying upon loyalty and the force of the status quo of government, endeavour to restrict activity in the community by the force of law. He was telling us that the dangers to liberty in the United States, in his opinion, were coming more from those who, relying upon loyalty and the exercise of the powers of law, were capable of destroying liberty in that country.

Sub-section (1.) of proposed section 24aa will apply to a wide range of activities which have never been defined in Australia. The provision should be capable of application only in some emergency when there is some clear present danger, or where there rs a serious breach of the peace. But the Government is unwilling to insert the necessary safeguards. If it does not propose to invoke this provision unless there is an emergency or an existing danger, why does it not write into the law the provision that some emergency must exist before the law can be used? But the Government wants it both ways. It wants a law which would be applied in any democratic country only in case of emergency, or when there is a serious breach of the peace, but it is not prepared to write these necessary safeguards into its legislation.

Proposed section 24aa contains a principle that should never be agreed to by any democratic parliament. When considering this type of law, we should be prepared to include the safeguard that it will apply only where there is a breach of the peace or where there is some clear and present danger. The lawyers surely ought to be able to draft a suitable provision. But no, this Government wants a blank cheque. It wants this extremely wide and extremely vague provision which it can apply to any person at all with whom it disagrees. Such a person can be brought within the full force of the law and the full force of the indirect intimidation upon which the Attorney-General himself has admitted he relies in order to bring about a degree of conformity and to counter any radical activity. That is the real reason for the legislation.







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