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Monday, 16 November 1964

Senator MURPHY (New South Wales) . - To answer the points made by Senator Wright, I say that there is no doubt that this provision applies only to persons - Australian citizens or British subjects ordinarily resident in Australia - who. are serving in countries outside Australia under arrangements made between Australia and the United Nations. I read the relevant provision originally. The point of the objection which we are making to this measure is that persons will be living in an unreal situation. That is one thing. They will be living in other countries in the artificial atmosphere that they will be constantly committing offences against the law of Australia, as embodied in this enactment, because of differences in the law. Necessarily, there will be differences between that law and the law of the country where they are serving. It is no answer to select examples, such as of a person drinking after hours, and to say: " Very well. The person is not likely to be prosecuted ". There will be a multitude of offences which the civilian will be committing.

It is disturbing to hear Senator Wright speak in this chamber and treat as being of no great consequence the enactment of a state of law under which persons will be committing offences, and the answer: " Well, nobody would prosecute them for that type of thing".

Senator Wright - That is the kind of situation which is occurring in the diplomatic sphere every day;

Senator MURPHY - This is a completely different situation. In the diplomatic sphere it is not a matter of persons being prosecuted or not being prosecuted according to the discretion of someone or other. There are well known rules of diplomatic immunity under which a person who has such immunity cannot be prosecuted at all in the country where he is serving. There is no doubt that under the type of arrangement which would be made by the United Nations and Australia, if it followed the present arrangement, a person would not be subject to the criminal jurisdiction of the courts of the place in which he was serving. So, all we have to do is to consider the actual law that is to be. applicable. In what circumstances will such a person be committing offences?

It seems an extraordinary situation that persons will be resident in a country, observing the laws of that country to the letter, and yet committing offences because what they happen to. be doing when measured against the laws of the Australian Capital Territory are offences. That is wrong, and it is no answer to say: "Even though they are commiting offences perhaps daily, they are not likely to be tried." The Minister said that even to drive on the correct side of the road in another country, if it happened to be contrary to the Australian Capital Territory law, would be to commit an offence. .

Senator Wright - I took the minor offence of drinking after hours in the absence of more serious offences which the honorable senator could instance.

Senator MURPHY - The Minister mentioned the offence-

Senator Wright - Of bigamy.

Senator MURPHY - Yet, but let us take the offence of carnal knowledge. Suppose that the age of consent was 154- years in a particular country. Would the honorable senator say that a person would commit a grave offence because the laws of the A usual ian Capital Territory happened to be different? There must be a multitude of such instances which could be given. I have not bothered to go through the statute books, it is said by learned professors of law, by Mr. Justice Joske and by others, that the law in the Australian Capital Territory is in u terrible mess.

Senator Wright - I dealt wilh that.

Senator MURPHY - Yes, that is so. When this Bill becomes law, people will be going overseas, serving in other countries and doing things there which are perfectly permissible in those countries, but quite unknowingly, because no-one can advise them on what the law is in the Australian Capital Territory, they will be committing offences against the law. That is not right. If there is a means of correcting the position, even though it errs in the direction of the civilian persons concerned, we ought to adopt it. Until a proper code is fashioned we ought to err in the direction of persons who may be charged with offences. 1 suggest that it would be a simple solution if it were provided that persons were not committing an offence against this Act if what they were doing was perfectly permissible according to the laws of the counttries in which they were serving. If such provision cannot be made now, I suggest that further consideration be given to the matter with the possibility of an amendment in the future in order that a proper code might be designed. I am satisfied that this is not a proper law to be applied to these persons. It is not satisfactory that the Senate has not been informed of what has been done by other countries which have entered into similar arrangements. Canada, the United States, New Zealand and other coun tries have arrangements with the United Nations. What specific provisions have they made applicable to their own nationals resident in other countries? I should like to be informed of the specific provisions. Sometimes these things are clouded over by discussions about the jurisdiction of the courts. The Senate has not been informed in any way of the arrangements that have been made. The precedent for the application of clause 4 is merely that it was used in relation to the Crimes (Aircraft) Bill. The application there, as was said in the second reading speech of the Minister, was completely different from that which applies here.

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