Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Wednesday, 23 November 1960

The TEMPORARY CHAIRMAN - No point of order is involved. The honorable member for Yarra is dealing with a matter related to the clause under discussion and is illustrating his argument.

Mr CAIRNS - I hope to make it clear to this legal gentleman, the honorable member for Bruce (Mr. Snedden), who finds it very difficult to grasp a common-sense proposition, because his mind is completely filled with tangled legal ideas, that the matter which we are now discussing is the definition of prohibited places. The Opposition wants to have that definition made clear in relation to certain prohibited places, and I am arguing that because of the wide, vague and general nature of the Government's definition, a person could commit an offence under proposed new section 78 of the principal act without knowing that he has committed an offence.

Mr Snedden - That is not possible.

Mr CAIRNS - Of course it is possible. I do not intend to enter into an argument with the honorable member, who is hardly ever called to order for his interjections. He has a voice like a fog horn and he goes on interjecting.

The point that I am making, Mr. Temporary Chairman, is that this provision with respect to known character and every other provision linked with it are based fundamentally on McCarthyism - on guilt by association of political character. The political character with which the Government is concerned is political character of a kind with which it disagrees; and that covers a wide range.

This situation will create doubts in the minds of the people - doubts of a kind which will be present particularly where a man might be innocent of the offence with which he is charged. And the prime element of this offence - the first objective condition - could be based on an innocent act. The act on which the offence is based could be accidental, but could be made into a guilty act by a person's known character, that character being nothing more than his political reputation. So the first element of an offence can be based on an act which is completely innocent or is accidental. The second element, which becomes a matter of political reputation, then completes the offence. The first element is based on a very wide definition of prohibited places in section 80 of the principal act as it will be amended by this bill. The second element is political reputation.

The special correspondent of the " Sydney Morning Herald " whom I have mentioned - presumably Professor Stone - states -

Even in the case of truly guilty men, the fact that evidence of political character went to the jury will enable doubts to be raised in the public mind as to whether there would have been conviction without that evidence.

In respect of this matter, it is quite pointless for the Attorney-General to imagine that because a judge instructs a jury to confine evidence of known character solely to intent, such evidence will not influence the jury with respect to the whole of the circumstances. To believe that the jury will not be influenced is to misunderstand completely what a jury is.

The article in the " Sydney Morning Herald" contains this later passage -

If Sir Garfield could have been brought to see the inherent dangers of future McCarthyism that he was in course of writing into the criminal law, and to remember his own profound respect for the Common Law . . .

I have seen no evidence, since the AttorneyGeneral has been in this place, of his having any profound respect for the common law or even respect for honorable members on this side of the chamber who are opposed to him. The author of this article has a reputation in the law no doubt as good as is that of the AttorneyGeneral - if that is possible. The point that emerges from all this is that if the Minister had remembered these things, the provisions with respect to known character would not have been embodied in the bill.

The position is clear, Mr. Temporary Chairman, as has been the position with respect to other provisions. Throughout, the Opposition has endeavoured to have offences stated in precise form so that they will not have a general and portmanteau application. The Opposition wants the Government to define as clearly as possible the offences which it is submitting to the Parliament in this bill, but it has refused time and time again to take into account the points raised by the Opposition and to adopt much mors precise definitions. This proves to me that in this instance the Government is out to obtain a general, dragnet provision at the base of its law. By its attitude, it has demonstrated that it has no faith in its ability to govern or in the people's confidence in it as a government.

The TEMPORARY CHAIRMAN - Order! The time allotted for the remainder of the committee stage has expired. The immediate question before the committee is, " That the paragraph proposed to be inserted be so inserted ".

Question put -

That the paragraph proposed to be inserted (Mr. Whitlam's amendment) be so inserted.

Suggest corrections