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Wednesday, 23 November 1960


Mr SNEDDEN (Bruce) .- The amendment seeks to insert a new subsection (1a.) in the following terms: -

The foregoing definitions shall apply only to matters which are material to the safety or defence of the Commonwealth or a part of the Queen's Dominions.

The amendment seems to flow from a misunderstanding of the requirement of intention that is preserved in the offence portion of the provision. Proposed new section 77 is in itself merely an interpretation section; proposed new sections 78 and 79 create the offence. If one looks for the offence in proposed new section 78, one finds in sub-section (1.) that the requirement is -

If a person for a purpose prejudicial, oi intended to be prejudicial . . .

In proposed new section 79, sub-section (2.), the requirement is -

If a person for a purpose prejudicial, or intended to be prejudicial . . .

So, intent is clearly the focal point on which discussion of the amendment should centre. Because intent is preserved, there is no necessity for the amendment. Indeed, the amendment in itself contains a great deal of vice in that it proposes that if a person performs some act with intent and it turns out that the matter concerning that act with intent was of no use to the defence of the Commonwealth, he is allowed to go and is free to try again to achieve his objective. The mere fact that what he takes and communicates turns out not to be of defence significance to the Commonwealth does not mean that he should be free to try again and on the second occasion find something that is really vital to the defence of the Commonwealth. The vice of the amendment is clearly exposed and I think the committee should reject it for the two reasons I have given.

Mr. Chairman,I want to turn to sub-, section (7.) of proposed new section 79, which is the known character provision. No provision of any bill could have been subject to as much misconception as this provision has been. The misconception is clearly revealed in remarks made by the honorable member for Yarra (Mr. Cairns), the honorable member for East Sydney (Mr. Ward) and the honorable member for Hindmarsh (Mr. Clyde Cameron). Even the Deputy Leader of the Opposition, to my great surprise, showed that he misunderstood the matter completely. The Deputy Leader of the Opposition said yesterday that this is permitted in times of national emotion. He said that this is almost certain to cause a miscarriage of justice because of the fact that it is permitted in times of national emotion. What the Deputy Leader completely overlooked is that, whether it is permitted in times of national emotion or not, before the evidence is admissible it must be put before a judge and the right to introduce it sought. Then it must be proved, and proved in the atmosphere of the court room, which I am quite sure eliminates all sense of national emotion.

If the suggestion of the Deputy Leader is that in times of national emotion there will be a miscarriage of justice, he will find a clear demonstration to the contrary in Ahler's case, which I am sure he knows. Here, in 1914, in. the first months of the war when national emotion could be said to exist, a man was charged with treason. He admitted the act, which was that he encouraged German citizens in England to return to Germany, there to fight against England. All the elements of national emotion that any one could want were present, and yet the accused was acquitted. Surely this demonstrates that moments of national emotion do not necessarily mean a miscarriage of justice. Indeed, I should say that the mere fact that it was a time of national emotion would mean that the jurors and the judge would be more alert to ensure that there was no miscarriage of justice. The honorable member for Yarra (Mr. Cairns) says that this is a provision which will be applied viciously by the Government. Not at all! The Government cannot apply it. That is the very element of it. It is the court - the judge and the jury - which applies it.

Dealing with the offence of espionage, the honorable member for Yarra has suggested that if somebody gives information to another country relating to population, rainfall or the number of members of this chamber, it may be of value to that other country and therefore he has committed an offence. It is a great pity that the honorable member for Yarra should resort to these ridiculous propositions when putting his arguments. The giving of information cannot constitute an offence if there is no intent. In the conveyance of information relating to these things, there would be no intent. If there were intent to assist the enemy, the person giving the information would be liable to conviction by a jury after a proper trial.

As to the known character provision, there seems to be a misconception about certain facts. When a person is charged, the first thing which must be proved is the act that forms the basis of the charge. When that act is being proved, the circumstances surrounding it are proved also. One of the examples which has been given is that of a wharf labourer working on a wharf when a vehicle of war falls on to the wharf. He may then be charged, and it is suggested that if he happens to be a member of the Communist Party he will be convicted. Let us be realistic about this. Everybody in this chamber knows that a wharf labourer works in a minimum gang of eleven. The first thing to prove is where this wharf labourer was at the time the vehicle of war fell. It must be proved that he was in a position in which he could possibly have contributed to the falling of the vehicle. If the vehicle falls when the man is standing on the wharf, it is obvious that he has no means of causing it to fall. Therefore, you cannot prove the act.


Mr Ward - Suppose he is the winch driver.


Mr SNEDDEN - We will suppose that he is the winch driver, that he puts on the brake, that the brake comes off and that the vehicle falls on to the wharf. There will be an investigation to see what caused the brake to come off. Suppose that the winch driver says, " This was an accident. The brake came off." In the course of proving the act, it will be proved whether or not the winch ever allowed anything to fall before. The brake will be examined to see whether there was a flaw in the metal which caused it to shatter to pieces. All these points will be investigated. It is necessary to prove so much in proving the act itself that you progress along that path.

Sub-section (7.) is a mere enabling provision. Under the law at present, known character can be admitted under certain circumstances, but the ordinary rules of law do not cover such a thing as this. If a man is charged with housebreaking, the fact that he is an active member of the Communist Party has no relation whatever to the offence. On the other hand, if he is charged with an act of espionage, there must be an enabling provision to permit of evidence as to character being admitted, if such evidence is relevant. When a prosecutor wants to introduce evidence-

The CHAIRMAN (Mr. Bowden).Order! The honorable member's time has expired.

Question put -

That the sub-section proposed to be inserted (Mr. Whitlam's amendment) be so inserted.







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