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Thursday, 3 March 1927

Senator GRANT (New South Wales) . - I move -

That Ordinance (No. 1) of 1927 to amend the Provisional Government Ordinance 1911-1926 of the Territory for the Seat of Government be disallowed.

Perhaps the most interesting and accurate publication produced in the Commonwealth is the Commonwealth of Australia Gazette. The information contained in it is frequently of a very important character. In its issue of the 27th January, there appears a notification that will have the most far-reaching consequences. It sets out a proposal to amend a very important ordinance in connexion with the Territory for the Seat of Government by adding the following to the Ordinance of 1911-1926- 5. (a) The trial of any civil action, cause suit, or other proceeding in any district court of the" State of New South Wales, while exercising jurisdiction in the Territory, shall be by a judge of that court without a jury.

This amendment of the Ordinance, if allowed to pass unchallenged by the Senate or another place, will become the law at Canberra. Fortunately, it will not apply to localities outside the Federal Territory. I take the strongest exception to this projected action by the Federal Capital Commission, backed up, I suppose, by the Commonwealth Government. It is proposed to contravene and set aside what may be termed the very foundation of British liberty. Many people are inclined sometimes to sneer at British liberty; hut any one who has taken the trouble to read British history -will realize the strenuous fight that was put up by the people from time to time to secure the liberties which they have enjoyed for so many years. We now find that a commission, appointed by a parliament, which consists of members elected on an adult suffrage, proposes to remove from a very large, intelligent, and continually increasing section of the people one of the most cherished liberties of the British people. I do not know why there should be thisinvidious distinction between residents of the Federal Capital Territory and those in other parts of the Commonwealth. Probably it was thought that no one would notice the intimation in the Government Gazette, or that the tabling of the proposed amendment of the ordinance would be allowed to pass unchallenged. I am glad, however, to have an opportunity to oppose the proposed amendment of the existing ordinance. I desire to briefly refer to the trouble taken by British people in the past to insure that trial by jury should be the law of the land, and, in doing so, to quote from a book entitled Magna Carta: a Commentary on the Great Charter of King John, by William Sharp McKechnie. Probably the most important part of this valuable work is that which deals with chapter 39 of Magna

Charta.The writer could scarcely trust himself to correctly express it in the English language, and very wisely, I think, decided to place it before us in Latin, in order to give its exact meaning -

Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, a ut utlagetur, aut exuletur, aut aliquo modo destruatur, nee super eum ibimus, nee super eum mittemus, nisi per legale judicium parium suorum vel per legem terre.

I am sure most honorable senators will understand the purport of what I have quoted, but as possibly some may have forgotten their Latin, I shall give the translation which appears in the book, and which reads -

No free man shall be arrested, or detained in prison, or deprived of his freehold, or outlawed or banished, or in any way molested, and we will not set forth against him, nor send against him, unless by the lawful judgement of his peers and by the law of the land.

In the opinion of the writer, that is a fair interpretation of the Latin quotation I have just given. Amongst other writers who have dealt with Magna Charta, is Mr. Boyd C. Barrington, who, on page 220 of his very interesting book places the following interpretation upon the quotation : -

No free man's body shall be taken, nor imprisoned, nor disseised, nor outlawed, nor banished, nor inany ways be damaged, nor shall the King send him to prison by force, excepting by the judgement of his peers and by the law of the land.

In those " good old days " it was a common practice for the King and others in authority to order the execution of a prisoner and then to try him.

SenatorFoll. - They were the bad old days.

Senator GRANT - I should say they were, but I believe there are some who would like such conditionsrestored. This proposed action on the part of the Federal Capital Commission, which, I presume, will be supported by the Government, is to deprive residents of the Federal Capital Territory of the right of trial by jury. It. is apparently a preliminary to other retrogressive steps to be taken and to the adoption of practices which were common in the days of King John. Those who were entrusted with the framing of the Constitution were not silent upon this point. Section 80 of the Constitution reads -

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State, the trial shall be held at suchplace or places as the Parliament prescribes.

It was undoubtedly the intention of the framers of that section of the Constitution that trial by jury should be recognized as the law of the land, and should be embedded in the Constitution for all time-

Senator McLachlan - This ordinance does not violate that section.

Senator GRANT - It does.

Senator McLachlan - In what way?

Senator GRANT - By the abolition of trial by jury.

Senator Kingsmill - Only in civil cases heard in the District Court.

Senator GRANT - Persons can be indicted in civil cases.

Senator McLachlan - No.

Senator GRANT - The proposal to have a law operating in the Federal Capital Territory which is not in force in any of the States, does not seem to me to be at all necessary. "What has induced the commission to bring forward a proposal of this character ? An overwhelming number of the residents of Canberra are what may be termed members of the industrial army, who have been drawn from all parts of the Commonwealth, and who are accustomed to trial by jury. They have also been entitled to a vote, but on. their transfer to Canberra that privilege will be denied tothem.

Senator Foll - In criminal cases the right to trial by jury will not be dispensed with.

Senator GRANT - This further indignity is to be thrust upon residents of the Federal Capital Territory, presumably because, for the most part, they are industrialists. I can conceive of no other reason for the proposal ; none has been advanced by either the Government or the Federal Capital Commission. I realize that accused persons resident in the mandated territory of New Guinea are not entitled to be tried before a jury, but in the near future that state of affairs will be remedied. Like them, persons living in the Federal Capital Territory have no voice in the government of the district in which they live. If honorable senators imagine that the future residents of Canberra will be satisfied to remain in that state they are greatly mistaken. Eventually some form of local government must be ceded to the residents of that territory. In the course of a few years the population of Canberra will have reached considerable dimensions, and I cannot imagine that the residents of the city will meekly submit to a state of affairs which gives them no voice in the control of local affairs. They will naturally regard any attempt to deprive them of the right to trial by jury as an intrusion upon their liberties. Why should the men and women who reside at Canberra be treated differently from persons resident in other portions of the Commonwealth?

Senator Sir Henry Barwell - One would think, from the honorable senator's remarks,- that it was proposed to abolish juries in criminal cases.

Senator GRANT - No. I thought that I had made it clear that I recognized that the proposed amendment of the ordinance affected civil cases only. The abolition of juries in criminal cases in the Federal Capital Territory has not yet been proposed. This Senate should jealously guard against any attempt to mete out invidious treatment to residents in the Federal Capital Territory. This step may be regarded as a small one, but it is nevertheless a step in the wrong direction. At this early stage in the development of Canberra I trust that the Senate will indicate clearly to both the Government and the Federal Capital Commission that it entirely disagrees with the proposed action.

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