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Thursday, 12 November 1964

Senator MURPHY (New South Wales) . - This is a most important Bill. The Opposition supports the Bill and commends the Government for its introduction. The Bill is important because it deals with Australia's relations with the rest of the international community. The need for the measure arises because of arrangements entered into by the Australian Government with the United Nations Organisation for Australian civilians to serve with United Nations forces in Cyprus. This has prompted the introduction of the Bill but the measure has a general application. It is not of a temporary nature nor is it limited to the forces in Cyprus or to any existing situation. This is a Bill intended to deal with offences committed outside Australia by Australian civilians in other countries for the performance of our international obligations.

The Opposition is pleased to be able to join with the Government in framing a suitable basis upon which our relations with the United Nations, in this respect shall be managed. It also applies to our relation with other countries who may form part of a peace keeping force or where members of our civilian population may be present in accordance with arrangements with the United Nations. Lastly, the Bill concerns the rights of Australian citizens and others who are covered by the Bill and who may be subject to the offences created by the Bill.

Australia is a continent isolated physically from the rest of the world, and hitherto we have not had to make provision for the situations envisaged in the Bill. The Bill is designed to provide law, and to provide for the enforcement of the law, in relation to crimes committed by Australian citizens and British subjects generally who are covered by the provisions of the Bill. The questions that arise concern the persons to whom the Bill applies, the nature of the offences that are created by the Bill, and the method by which the law may be enforced. The persons to whom the Bill applies are Australian citizens or British subjects ordinarily resident in Australia who are serving in a country outside Australia under arrangements made between the Commonwealth and the United Nations, but they do not include members of the defence forces. It is important to observe that the provision does extend beyond Australian citizens. We ought to remember that in our country there are approximately half a million British subjects who are not Australian citizens. Of the half million British subjects who have come to Australia since 1949 only about 11,000 have registered as Australian citizens. Unfortunately in bills of this nature it is necessary to make special provision for persons who, although ordinarily resident in Australia, are not Australian citizens.

I come now to the nature of the offences that are created by the Bill. Here a problem arises. On the face of it, this Bill is designed to deal with what are normally regarded as criminal acts which might be committed by civilians who are part of a force in a certain place. Of course, the immediate case is that of Cyprus, but the provisions of the Bill arc of general application. The old rule was, that when in Rome one should do as the Romans do. It was thought to be the height of diplomacy, and neighbourliness and the mark of a good traveller for one to observe the customs and laws of the country in which one was staying. In this measure there appears to be a departure from that principle. This is something to which the Opposition desires to draw attention, but not in criticism of the Government because we welcome the Government's efforts to deal with this situation. We are merely desirous of giving such assistance as we can cope with the problems that may arise.

What is to be done? Are we to provide that a person who is a member of a United Nations force in, say Cyprus and who does something which would be a crime under the law of Cyprus is to be punished or are we to say that he is not to be punished unless what he did was a crime according to the laws of Australia? Are such persons to be subject to the law of the country in which they are placed, subject to the law of Australia, subject to the laws of both countries, or subject to a law only when, to put it in simple terms, it would create an offence in both countries? I am using the word "crime" in a loose sense in order to simplify the matter. When all is said and done, an act becomes a crime only when it is made a crime.

This Bill contains the curious provision, to put it in its simplest terms, that a person shall carry the law of the Australian Capital Territory with him wherever he goes. The Bill makes an act or omission in some other place an offence against this legislation if it would have been an offence if committed in the A.C.T. There is a limitation to certain laws of the Australian Capital Territory, but they are the general criminal laws. Clause 4 refers to the act or omission as being an offence against a law of the Commonwealth in force in the Territory, the Crimes Act 1900 of New South Wales in its application to the Territory as amended or affected by ordinances from time to time in force in the Territory, or the Police Offences Ordinance of the Territory. It means that a civilian member of a United Nations force shall carry his law with him.

That immediately brings to mind the anomalies that might occur. A person might do something that is quite permissible under the criminal laws of the country where he is stationed. It might be something that is done by everybody and is not regarded as being an offence. But, if it happens to be an offence under the laws of the A.C.T., then he will be deemed to have committed an offence. In some cases it might be a very serious offence. Let us consider the reverse situation. A person might do something which, although it is not an offence if done in the Australian Capital Territory, would be a very serious offence under the local law. But under this Bill no offence is created and the person concerned would not be subject to any penalty. This means that problems of great delicacy and difficulty might arise in our relations with other members of the United Nations force and the country in which the force is stationed.

One can easily conceive of other countries having laws creating serious offences which would not be regarded as offences in the A.C.T. One can imagine that in some of the Asian countries there would be offences relating to religious observances which would be regarded by the citizens of those countries very seriously but which under Australian law either would not be regarded as offences or would bc regarded as being trival. They might be regarded as offensive behaviour or something of that nature. On the other hand, there might be laws in other countries which might depart so seriously from Australian law that something which would be regarded seriously in the Territory would not constitute an offence in that country.

One example which readily comes to mind and is often used by lawyers to illustrate this kind of problem is the question of the age of consent. It is a practical example and is often used because it is easily understandable. If the age of consent in matters of carnal knowledge, and so on, differs between the Australian Capital Territory and the territory where the members are present, grave problems may occur. If the age of consent happens to be lower than in the Australian Capital Territory, it means that a civilian member of the forces may be committing an act which constitutes no offence at all in the place where he is resident and may carry with it not only no legal disapprobation, but no moral disapprobation. Yet, by reason of this enactment he would have committed a most serious offence against the law of Australia. On the other hand, if the age of consent were higher in that country than it is in the Australian Capital Territory, it may mean that the civilian member of the forces would be committing a most serious offence in the place where he was resident, yet it constituted no offence against this enactment.

One can see the problems which may occur not only in relation to that kind of matter but to other offences as well. One can easily visualise an inflammatory situation arising in a country where an Australian subject covered by this enactment had done something which was very gravely disapproved of by the people of that country; yet what he had done constituted no Offence against this Act. Often the countries in which foreign persons are resident under agreements, such as is behind this enactment, are well satisfied to have some extraterritorial jurisdiction being exercised if they are certain that where an offence has been committed against their own laws, punishment will be applied. But when one has the situation that punishment is to follow only if there is an offence against, in effect, the laws of the Australian Capital Territory, it may well be that in many cases the person who is regarded as an offender will not be in a position to be punished under this enactment.

Those are the observations I wish to make upon that part of the Bill. I am not suggesting that the solution is easy. The Government and the Australian community might take the view that we would want, for instance, in some situations members of our civilian forces to be punishable in the same circumstances as they would be if they committed an offence against the laws of the Australian Capital Territory. I can imagine an offence of some kind of misappropriation which might not be an offence under local law, that is, the law of the foreign country. One can see that it would be proper that that person should be subject to penalties if the misappropriation were committed in relation to the peacekeeping forces. Other considerations might apply if the misappropriations were unrelated to the purpose for which the offender was present in the other country.

If one looks at the converse situation also, it will be seen that problems might arise. But this is an attempt to lay a foundation stone to deal with these problems wherever they may occur. The Opposition respectfully suggests that further consideration might be given to this clause, which really goes to the foundation of the Act, in order that a better formula might be arrived at. It appears that the formula follows that which was in the Crimes (Aircraft) Act No. 64 of 1963; but of course the considerations are different here. The crimes which could be committed in relation to an aircraft are quite restricted. An aircraft is a special case, somewhat similar to that of a ship. One can visualise passengers carrying their law with them, as if the ship or aircraft were a little bit of Australian territory. When one deals with the acts and omissions of a person who is living in another territory, the kinds of involvement which might occur are far more numerous. The complexities of life are greater and it seems to us that the most serious anomalies and problems may occur, on the one hand affecting the rights of the civilian members of the forces, and on the other hand affecting seriously our relationship with other countries, particularly the host country.

The question of enforcement arises under this Bill, which provides for the arrest of persons without a warrant in circumstances where a Commonwealth officer has reasonable ground for suspecting that a person has committed, is committing, has attempted to commit or is attempting to commit an offence again this legislation. A Commonwealth officer or a person authorised may hold the person so arrested in custody until he can be brought before a justice of the peace or other proper authority in Australia to be dealt with in accordance with law. We are not satisfied that sufficient provision has been made to enable the alleged offender to be brought speedily to trial. A person may be arrested in a faraway spot. Where is the machinery to require that person to be brought speedily to justice or to entitle him to a discharge from custody? In Australia an arrested person in custody is able to avail himself of a private remedy which is available to all citizens; that is the ancient writ of habeas carpus, or one of its modern variants. A public remedy is also available to persons who are in prison; that is the administrative side of the judicial apparatus of this community.

On the administration side, the courts have from older times always seen to it that an investigation was periodically made of the cases of persons who were held in custody, and a judge had to be satisfied that there was some adequate reason for holding them in custody. So, we have the procedures of gaol delivery. We have this country's administrative procedures which are incidental to the judicial powers which arc applied in order to see that persons are not left in custody without some adequate reason. In regard to those persons, the Opposition would like to know how a person who may be in one of these other countries may avail himself of the writ of habeas corpus. It may be that the powers of the High Court of Australia itself could be invoked under the Judiciary Act. The High Court has power under Section 33 (I .) (f) of that enactment to make orders or to direct the issue of writs of habeas corpus, but there is no specific provision in this Bill to deal with the question. There does not seem to be any administrative procedure whether part of the judicial apparatus or otherwise to ensure that persons shall not be placed in custody and left to languish perhaps for very lengthy periods without being brought to trial. I understand that the Minister has circulated an amendment since this matter was raised in the House of Representatives by the Deputy Leader of the Opposition (Mr. Whitlam). The Opposition is pleased to see that the Government is willing to act in accordance with the proposal which has been made by our party.

The other provisions in the enactment deal with the trial on indictment of the offences. They provide for the various procedural matters. The trial might take place in any State or in any Territory. There are some serious questions here because, undoubtedly, the procedural rights of persons who are tried differ substantially from State to State. This means that a person who is tried in South Australia receives a different sort of trial from a person who is tried in New South Wales.

Senator Aylett - The honorable senator is not telling me anything. He can add Queensland to that, too.

Senator MURPHY - I thank Senator Aylett for his observation that one certainly might get a different trial in Queensland. What does this mean? Australia engages in an international exercise. It says: " Here we are, a nation. We have obligations as a member of the United Nations." Australia has found her nationhood. It is accepting its international obligations. As part of those obligations, men have come from every State of Australia to form a section of the United Nations Police Force. They have gone to Cyprus. No doubt, in other circumstances, they would go to other parts of the world as Australians. Yet, if anything occurs which means that they are alleged to have committed an offence under this Act, they are liable to be dealt with in a manner in which their substantial procedural rights upon trial differ from State to State. There is no doubt that the differences in the procedural rights of accused persons are so great that they can many times mean the difference between conviction and acquittal.

Senator Wright - What about my grievance, as a citizen of Tasmania, which has reformed its law, being subjected to the criminal law of the Australian Capital Territory which imports the law of the Sydney Crimes Act?

Senator MURPHY - The honorable senator from Tasmania has just referred to the next matter to which I desire to proceed. Having illustrated that the procedural rights differ from State to State, I come now to the point that Australia says: " Here is a group of Australians. They are treated as Australians as part of the purpose of our international obligations." Yet, if something occurs under this arrangement, we permit them to be dealt with as New South Welshmen, Queenslanders or Tasmanians, in relation to what has been done by them as Australians, and dealt with in a manner where there may be the most serious procedural difficulties.

Senator Gorton - Does that not apply now in the case of offences against Commonwealth law under the Judiciary Act?

Senator MURPHY - It does apply, Mr. Minister. It is our view that it ought not to apply and that the time has come when the Commonwealth Government ought to say that all Australian citizens who commit offences against the law of the Commonwealth should be treated equally in regard to their substantial procedural rights. Accused persons are tried according to law. They are entitled to a fair trial according to law. But the law, as far as its procedure is concerned, differs materially from State to State.

The next matter is the law to be applied. We know that the law to be applied is the law of the Australian Capital Territory - that is, those three parts of it which have been referred to. That is substantially the criminal law of the Australian Capital Territory. In the selection of such a law, no criticism can be made because of the basis of selection. If a law is to be applied, it is far better that the law of the Australian Capital Territory be selected as at least being Australian law than some other type of selection which might involve a discrimination between persons, for example, on the basis of the law of the State from which they came. But what is good in theory is most unfortunate in practice. This is because the criminal law of the Australian Capital Territory is very backward indeed. It is archiac. It is long overdue for reform. It is hopelessly out of date. The most stringent criticisms have been made of this law not only by learned professors in the field of law, but also by those who have to administer the law of this Territory. Mr. Justice Joske, who was a former member of this Parliament, who is now a member of the Commonwealth Industrial Court and who also acts from time to time as a judge of the Supreme Court of this Territory, has commented most adversely on the law which he has to administer. There has been no answer from the Government. The Government knows that the law of the Australian Capital Territory is out of date. It is bad that the citizens of this Territory should have to live under a criminal law which is overdue for revision. I remind the Senate that it has been well said by a great writer, Henry Maine, that as societies become more complex and more civilised the criminal law becomes all the more important. The criminal law in this Territory ought not to be neglected as it has been. It is scandalous that the criminal law should be in the state in which it is in the Territory. That ought to be corrected. What I have just said is not a criticism of the Bill. It operates upon the laws of the Australian Capital Territory. If those laws were corrected the Bill would be unexceptional.

I have no other observations to make other than to commend the Government for its attempt to deal with the situation covered by the Bill. The Opposition trusts that the Government will see fit to consider the suggestions which have been made in the House of Representatives and in this Chamber, and it hopes that an atmosphere of co-operation will enable a firm foundation to be laid for the future in matters which so intimately concern Australia's relations with other countries.

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