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Tuesday, 19 May 1970


Mr WHITLAM (Werriwa) (Leader of the Opposition) - by leave - I am delighted that a Law Reform Commission is to be established in the Australian Capital Territory. In fact it has been sought for many years by practitioners and public spirited persons in the Territory. It is not a mere matter of coincidence that I undertook at the election for the House of Representatives last October that my Party would establish such a Commission. I also repeated this proposal in my manifesto, which was issued on Monday last week, for the by-election for the Australian Capital Territory which will take place on Saturday week, as I am sure honourable members will recollect. Before dealing with this subject in detail, might I express my gratification that so many of our policies, which J announced on Monday of last week and which could be discerned from questions 1 put on the notice paper 5 weeks ugo. are in fact coming to pass. There are 3 other instances which I can briefly mention. I mentioned that my Party would introduce consumer protection legislation. The Minister for the Interior (Mr Nixon) in fact had called for a report from his officers on such legislation in 1968. Yesterday he wrote a letter to the Australian Capital Territory Advisory Council announcing his intention to establish a consumer protection ordinance. This followed a resolution passed by the Advisory Council on 23rd .September 1968.

On Monday of last week I promised that the construction of single bedroom bachelor flats would be resumed, having regard to the needs of elderly and single people in the Australian Capital Territory. The construction of such flats was discontinued in 1965. Yesterday the National Capital Development Commission announced that it has begun the planning and design of a 100-room bachelor flat programme. I promised yesterday week that the Defence Forces Retirement Benefits Fund would be reconstituted so as to provide non-contributory pensions to all ex-servicemen and to adjust those pensions periodically in accordance with adjustments in rates of pay applicable to current servicemen. It will be recalled that on 29th May of last year the Minister assisting the Treasurer promised to bring up to date a table which he had previously given me of comparative benefits paid on retirement to servicemen in the United States, Britain and New Zealand. I reminded him of this promise in a question on the day we sat this year. I have not yet received an answer. Nevertheless, the whisper is that something is to be done about the Defence Forces Retirement Benefits Fund.

I return to the fourth matter, the Law Reform Commission for the Australian Capital Territory. On earlier occasions - for instance, in the Crimes (Aircraft) Bill of 1963 and the Crimes (Overseas) Bill of 1964 - I pointed out the archaisms in the criminal law in the Territory. The relevance of the criminal law in the Territory to those Bills is that it is the law applied by those Bills. It is the misfortune of persons being tried under those laws that, with the possible exception of the criminal law of the Northern Territory which derived from South Australia in 1910, the most archaic criminal law in Australia is that of the Australian Capital Territory which derived from the New South Wales criminal law of 1911. I quoted on these previous occasions the remarks which Mr Justice Joske, sitting as a judge of the Supreme Court of the Australian Capital Territory, had made early in 1962 on these archaisms. I had quoted, moreover, the articles on trie subject which had appeared in the 'Canberra Times', by Dr K. C. Sutton, a senior lecturer in law at the Australian National University. He was succeeded in that position by Mr Keppel Enderby. I further quoted the articles in the 'Canberra Times' of 7th, 8th and 9th May 1964 by Professor Jack Richardson. It appears that all of these articles and comments advocate the establishment of a Law Reform Commission for the Australian Capital Territory.

An article in the 'Canberra Times' on 21st July 1965 by Mr David Solomon disclosed that the . Government had decided against such a Commission. This was confirmed by a joint statement on 21st August 1965 by the then Attorney-General, the present Minister for Labour and National Service (Mr Snedden), and the then Minis ter for the Interior, the present Minister for Primary Industry (Mr Anthony). The statement, incidentally, was not made in the Parliament. It will be seen then that the idea of a Law Reform Commission for the Australian Capital Territory has been debated in the Australian Capital Territory for the last 8 years. It has certainly been debated in this House on appropriate Bills for the last 7 years.

Perhaps I should also point out some of the extremely leisurely and inadequate developments in the 3 fields which the Attorney-General (Mr Hughes) says are being considered for forthcoming legislation. First of all, he mentions legislation concerning strata or unit titles. The late honourable member for the Australian Capital Territory, Mr J. R. Fraser, received an answer on this subject on 24th May 1965. The Minister for the Interior assured him in his answer:

The Attorney-General has caused an investigation to be made and this has disclosed that it would be possible to work out a legal basis for a strata titles system suitable to the particular circumstances of the Australian Capital Territory.

I point out that that was 5 years ago. Similar legislation was brought into force in New South Wales on 1st July 1961, Tasmania on 1st January 1964, Queensland on 1st July 1965, Western Australia in 1966, Victoria on 1st July 1967 and South Australia on 22nd February 1968. For the last 5 weeks I have had a question on the notice paper asking when this will be introduced in the Australian Capital Territory!

The second prospective legislation which the Attorney mentions is the Legal Practitioners Ordinance. That has also been debated in another place and doubtless it will be debated further when the substitute legislation is brought in. My recollection is that the former ordinance was disallowed about 8 months ago. The concluding prospective piece of legislation which the Attorney mentions is the new criminal code for the Territory. This was handed to the former Attorney in February last year and it was tabled in May last year. I must confess I find it a disagreeably Draconian code. I drew this to the attention of the Attorney-General in a question on 1 1 th March last, lt will be remembered that Mt Justice Fox, the primary judge of the Supreme Court in the Australian Capital Territory, had acquitted one of Mr

En derby's clients on the basis that the police were not entitled to fingerprint persons in custody unless that course was necessary for identification. 1 pointed out to the Attorney that the draft criminal code for the Australian territories made it lawful for a police officer to take prints of the hands, fingers, feet or toes of a person in lawful custody and to take photographs of a person in such custody. It will be noticed that these photographs and fingerprints and toe prints are not to be taken only when required for identification: anybody who is charged can be recorded in this way. I do not believe that in Australia this is an acceptable extension of crim nal law practices. Accordingly, I would hope that the criminal code to which the Attorney refers will at least be amended in some of these ways. It is not inappropriate that today, the day of the visit of the Prime Minister of Canada, formerly Minister of Justice in Canada, we should pay some heed in practice to the notable statement he made that the Government has no place in the bedrooms of the nation. The talents and energies of lawyers and police can be very much better used than they are at the moment in the bedrooms of the nation. I merely say by way of illustration that we can take no comfort from the fact that the draft criminal code tabled in May last year is be ng contemplated as a law reform in the Australian Capital Territory, lt will be the most Draconian code in Australia if it is ever enacted.

I conclude my remarks by saying that in view of my happy experiences yesterday and today in finding that 4 proposals which I put to (he people of this Territory only on Monday of last week are already coming about, I have the liveliest anticipation that before polling day on Saturday week some other long standing proposals may in fact come to pass. For instance, some action may be taken on the report by the Joint Committee on the Australian Capital Territory on the supply of residential blocks in Canberra, which was made on 1st September 1965. Some action may be taken on the report of the former Minister for the Interior on self-government for the Australian Capital Territory, which was made in May 1967.

Some action may be taken on Sir George Currie's working party's recommendation for an independent education authority-







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