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Tuesday, 7 December 1971
Page: 4153


Mr HAYDEN (Oxley) - I second the motion moved by the honourable member for the Australian Capital Territory (Mr Enderby). He has made a number of vital points in relation to the proposition put to this House and I suggest that his motion deserves support. Honourable members will be called upon to make what are extremely profound and serious decisions in the next 6 or 7 months in relation to a new criminal code for the Australian Capital Territory. Those decisions will pretty much determine what sort of penalties will be imposed on people and what sort of rights people will have in the legal system which will operate in the Australian Capital Territory. I would suggest that the debating chamber technique which is implicit in our parliamentary procedure is totally unsuitable for this sort of decision making.

I am persuaded at the present time of the great virtues of the committee system, having just completed reading the report of the Senate Select Committee on Drug Trafficking and Drug Abuse, albeit somewhat late, but better late than never. Here we have a very forward looking, very well informed and, one would say, a very liberal approach to this serious and growing problem in most Western societies. It is a report which is pretty much endorsed by all members of that Committee. That is, there was no party split on most of the decisions which were brought into the report. Overwhelmingly the members of the Senate, drawn from all paries there, supported the propositions which were written into the report. Currently I am serving as a member of the House of Representatives Select Committee on Pharmaceutical Benefits. In that capacity it is a very interesting experience to be drawn right into the cockpit of this sort of system and to find that quite frequently there will be a split of opinions being expressed or being implied in the way in which questioning is directed to a witness by Committee members, a split which shows that the division is not on party lines but runs across party lines. Thus we have not infrequently a situation where some Liberal members and some Labor members will be developing a theme and certain other Liberal, Country Party or Labor members will be taking a position which is contrary or modified in some way to that view being expressed.

The great virtue of the committee system, as I see it, is that we put together a number of men of goodwill and good intent - and I believe that is what we all are in this place. We want to do the best we can for the community which has us here representing it and seeking to make laws for it. When we put these men of goodwill and good intent together in this sort of situation where they are presented in a different milieu altogether with facts from highly qualified witnesses drawn from the length and breadth of Australia and from all sections of society in Australia which have people who wish to be represented, we find that members sit down; reflect, digest and seek to extract the hard, essential and valuable essence of the issues with which they are dealing. That is the great virtue of the committee system as I see it. It is not only the case with the Committee on which 1 am currently serving or the Committee on Drug Trafficking and Drug Abuse to which I referred. This has been a general experience of the committee system in Parliament.

What is the relevance of the committee system to this case? 1 get back to the point I was making a few seconds ago. I just do not believe that this parliamentary debating chamber is the most effective system to deliberate, for instance, on whether we should be imposing 10 years or 3 years imprisonment for a particular offence or whether we should include capital punishment in the statute proposals which will come in Bill form before this House. Yet I expect that this is what we will be asked to do. At the present time there are something like 220 sections in the proposed criminal code but the drafters of that proposed criminal code have not included proposed penalties for offences. It could well be that before we get the final criminal code the Government, through the AttorneyGeneral's Department and with the imprimatur of the Ministry, will bring in a Bill for a criminal code which will include proposed penalties. That in itself to me is a deficiency in this approach because this will encourage a number of members not to think as they ought to think about the penalising aspect of the Bill which will be brought into the House. One can think of so many instances of what seem to be anomalies in the way in which penalties are imposed in courts and in the way in which maximum penalties are struck in various forms of legislation. I get back to this point: We need a serious debate on whether 10 years, 5 years or 3 years is the appropriate sentence for a particular offence. Yet if we have a Bill brought into the House with penalties already specified this will encourage a diminution in the amount of interest and debate which will take place on that aspect.

The honourable member for the Australian Capital Territory raised another matter, and a very important one - the inclusion or the exclusion of certain offences in that Bill. There is a great deal of debate in our community today as to the extent to which those offences which are loosely defined as ones of private morality - ones where a person or persons together do acts voluntarily which cause no harm to anyone but themselves - should be included as criminal offences or whether in the words of Prime Minister Trudcau of Canada the law courts have a place in the bedrooms of private individuals. My personal view is that they have not. For morality offences such as homosexuality, prostitution and abortion I would be one who supports complete law reform. I do not believe they ought to be in penal Acts of this country or indeed of any country advanced in its thinking, but that is a personal view. These things are open to great debate. When 1 say these are my views, they are views which are not inflexibly dogmatic. They would be views which are open to persuasion towards change if powerful enough evidence were presented to me to encourage me to change these views.

I will give an example of how views can change. I was for several years a member of the police force in Queensland and I served in the Criminal Investigation Branch for some time. For a long time in my service I was far from favourably disposed towards homosexuals. A change in my life came when the Church of England and subsequently the Roman Catholic Church, in both cases in Great Britain, supported law reform in regard to these people. It occurred to me that erudite men such as the people who prepared submissions to the Wolfenden Committee with respect to those cases I mentioned and such eminent, respected and responsible men as these church leaders would scarcely be the people who would easily make this, to me, radical sort of decision. Accordingly I set about finding out why these people would change or why these people would support this profound sort of law change. As a result of reading fairly extensively and inquiring into this matter I changed my concepts completely. Quite frankly, it was not an easy decision in the early part because one does have ingrained prejudices about this matter. On this subject these prejudices are ingrained into us from infancy. But I found as a result of my reading and my discussion that I had wrong premises upon which I was basing my attitude towards this subject, and I changed my views.

I have seen other people who have been fairly dogmatic change their views in the past few years. I know of one man whom I respect greatly who within the last few months, as a result of a discussion and one might say a confrontation on this matter, set about reading up on the subject. He has moved from being quite dogmatic to having an open mind. Where he will move to next will depend on the sort of evidence that accumulates before him. But this is the sort of thing I mean. We will not draw this evidence out here in the debating chamber, and least of all when most likely we will be divided on party lines. In any event, if we have a free vote, there will still be this tendency to be infected, if I may use that word in a very gentle sense, with certain prejudices which might be inimical to the development of the best decisions on law reform when we debate this Bill. Accordingly it seems to me that the best way to do this, as I mentioned earlier, is to set up a committee of inquiry from this House. We have ample evidence already from the achievements of pervious committees that the Committees of this House and of the Senate are capable of bringing out reports of very high standard with a comprehensive overview of the sort of matter which has given the House or the Senate concern and which has led accordingly to the House or the Senate referring the matter to the select committee.

Now I come to the matter of the proposed select committee. Law to me is more than a right for lawyers. Law concerns people and it concerns their problems in a social environment. With respect to the honourable member for the Australian Capital Territory and other lawyers in this place I sometimes think that we make a mistake by allowing lawyers exclusively to deal with law. I really think there is need for a complete recasting of the way in which we look at the law and the penalising aspects of it We are still hung up on the old, pre-Christian ethic of 'an eye for an eye and a tooth for a tooth'. In many cases we would be better served by setting up a legal institution to find out why people get into trouble and why they repeatedly get into trouble.

Without detailing instances, I know from my experience in the police force that there are some unfortunates in society - young kids who do not get a decent break in life from a very early stage, who get into trouble with the cops and who continue to get into trouble with the cops. The police do not understand their problem and neither do the parents or the young people involved. The problem is often one of society, lack of opportunity or some event which has occurred in the person's life which sets him back and perhaps develops a sense of resentfulness, maybe towards someone at home, because of the way he has been treated there. I can think of many cases in which this has happened. The resentfulness may find its outlet in acts against society. These are pretty sad cases. They are not the sorts of things that policemen or lawyers understand too well unless they are trained in the social sciences. This is why I see great virtue in the committee system.

We could bring in a multi-disciplinary approach to feed information into a committee of inquiry and seek to give it the best terms of reference or the best framework for the development of a criminal code for the Australian Capital Territory. Evidence could be given by social scientists - sociologists, social workers and perhaps even social anthropologists - as well as by lawyers, medical people and members of the community. A wide range of people could be brought in. I hope that we can have a completely new and radical approach to what the law, law enforcement and the processes of law enforcement are ali about. Canberra and the Territories of the Commonwealth could be used as a sort of laboratory. Perhaps there are totally different ways of operating the processes of the law in the community. Maybe there is a completely new concept of what the courts ought to believe. 1 have some ideas about this myself.

I think that we should get away from the mechanical, legalistic approach which is at present adopted. Everybody is separate, individual and special and has some essential features which make him different from any other individual and which therefore call for special attention for that person. The things I have in mind would cost a lot more money. Frankly, I would be prepared to pay a lot more in taxes to see the things that I believe this society needs. Unless we are prepared to experiment, to be adventurous and to move into these new areas this upsurge, this exponentially climbing rate of crime which we see in our society is going to worsen. 1 think it is significant that the worst areas are where people are concentrated the most and deprived the most. Perhaps in the final result this calls for a completely new casting of the values which our society upholds. 1 support the motion that has been moved by the honourable member for the Australian Capital Territory.







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