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Wednesday, 23 November 1960

Mr Allan Fraser (EDEN-MONARO, NEW SOUTH WALES) (Monaro) . - I move -

In proposed section 78, omit sub-section (2.)

The honorable member for Yarra (Mr. Cairns), who has already spoken to the committee, has shown the extraordinarily wide definition of " espionage " which covers every substance or article in the world and includes every possible form of information, whether true or false, a report of a conversation or, in fact, anything whatever. The honorable member for Bruce (Mr. Snedden), who has recently spoken, has shown that the only protection of any individual in these circumstances is the provision relating to intent - an intent to be prejudicial to the defence of the Commonwealth.

The sub-section which I now seek to eliminate deals with the method by which this intention is to be established and shows that the known character of the accused can be taken into account and used as evidence of his intention to act in a way prejudicial to the safety or defence of the Commonwealth. This is a position which is perfectly clear to the ordinary citizens of Australia, and while there have been many important provisions in this measure which have not been appreciated or understood, and can scarcely be appreciated or understood, by laymen, this is a principle which every ordinary Australian citizen understands and believes in - the necessity for maintaining the principle that a man is to be regarded as innocent until he is proved guilty. The average Australian believes - and strongly resents the fact - that this provision takes away that elemental and fundamental safeguard of British justice.

Sir Garfield Barwick - It does nothing of the kind.

Mr Allan Fraser (EDEN-MONARO, NEW SOUTH WALES) - The AttorneyGeneral interjects that it does nothing of the kind, and he said as much last night. When the Deputy Leader of the Opposition quoted one or two actual cases in which a man could be convicted and in which the determining circumstance is the known political record, the Attorney-General said that the Deputy Leader of the Opposition had overlooked the fundamental element that the offence is committed only if a person does something intended to be prejudicial to the safety or defence of the Commonwealth. Of course that has not been overlooked, because that is a provision which the Government has deliberately placed in sub-section (2.) and which we are seeking to delete. The Attorney-General went on to say -

The honorable member has claimed that this can be proved by giving evidence of character. That is an erroneous assertion because the jury must be satisfied beyond reasonable doubt of the existence of the purpose.

The provision which we are seeking to have eliminated says expressly that the jury can be satisfied by taking into account evidence of the previous known character of the accused man. Indeed, the AttorneyGeneral goes on to admit that in the next sentence of his speech, when he said of the jury-

Whether it will be satisfied by a little piece of evidence or by a lot of evidence is a matter entirely for the jury.

Of course it is, so long as sub-section (2.) remains in the legislation, but if it is taken out the position stated by the AttorneyGeneral no longer exists and the traditional protection of the accused man remains. The Attorney-General is a Queen's Counsel, and very learned, but there are other most eminent counsel in this country who have disagreed with his interpretation of this subsection. He is not the final and only arbiter and we must face the dreadful possibility that he might be the judge in court before whom some of these accused persons appear.

I wish now to refer to a letter in the " Canberra Times " this morning, signed by David K. R. Hodgkin, Clerk of the Australia General Meeting, Religious Society of Friends. This is the organization of Quakers, which I am certain has the respect of every member of this chamber for its sincerity and honesty of purpose, its humanitarian motives and its qualities of mercy and justice. Part of this letter reads -

Friends are not yet satisfied thai the " known character provisions " will not in some instances prejudice the accused. Nor are we satisfied with the provisions which prohibit us from intentionally giving relief or medical aid, and even in some cases moral and/or political support within the Constitution, to our fellow men who may be branded as " enemies ", or citizens of an " enemy country ".

I turn now to the Executive Committee of the Australian Council of Churches, which is surely also a body that has the respect of every member of this committee and which, having obtained legal advice which differed strongly from that given to the House by the Attorney-General, said -

The Council also believes that the provision to admit " relevant known character matters " in regard to sabotage and espionage charges should be deleted entirely. The executive committee urged also that the legislation should not be rushed in any way that would prevent further study and possible further revision.

I have before me a letter addressed by the Reverend Alfred M. Dickie, of North Essendon Presbyterian Church, on 21st November, 1960, to the Attorney-General, replying to the Attorney-General's remarkably offensive letter to the Presbyterian Assembly of Victoria. The Reverend Dickie says -

I am very surprised, and I venture to think that the Assembly would be very surprised, that you had come to that conclusion especially in view of the words of the seventh premise itself.

In the preceding paragraph the writer had referred to*-

.   . a wrong and unwarranted conclusion, namely, that the omission of the words from the seventh premise of the overture was "deliberate on the part of the author ", " well calculated " and done " to mislead the Assembly ".

He points out what the Attorney-General apparently had not realized, that the premise itself states -

Whereas the Prime Minister claims that the Crown must prove the elements of the offence, there are two and only two elements of the offence, an act and a purpose of a certain kind - the word " elements " must include both. Moreover, where certain words from the evidentiary provision of the bill are omitted from the premise their omission is intimated by the presence of dots, thus ". . ." The presence of such dots indicates, not an intention to mask or mislead, but the presence of words which can be learnt by research. Moreover, the whole provision it is imperative for you to know, was stated in full to the Assembly.

That was before it reached a decision which the Attorney-General has since declared was reached by the assembly on misleading deliberately misleading - information. The letter continues -

If ever this bill becomes law, and thereunder one innocent person suffers death or life imprisonment or even a lesser term, the Church will know that it did not allow this kind of legislation by default. More importantly, it will know that because of this action for the safeguarding of freedom it will retain the right in the sight of God and men to give comfort and strength to those who thus suffer.

The CHAIRMAN__ Order! The honorable member's time has expired, and the time allotted for the consideration of clause 49 has also expired.

Question put -

That the amendment (Mr. Allan Fraser's) be agreed to.

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