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Wednesday, 13 September 1972
Page: 791


Senator GREENWOOD (VictoriaAttorneyGeneral) - I move:

That the Bill be now read a second time.

This is an urgent Bill. Its introduction follows a decision yesterday by the Supreme Court of the Australian Capital Territory in which the Supreme Court held that the Trespass on Commonwealth Lands Ordinance 1972 was not notified in accordance with the requirements of the Seat of Government (Administration) Act, and is not therefore in operation. The Act provides that every ordinance shall be notified in the Gazette. The Act further provides that a notice in the Gazette of any ordinance having been made, and of the place where copies can be purchased, shall be sufficient compliance with the requirement of notification. Two of the judges of the Supreme Court found that neither of these prerequisites had been satisfied in the case of the particular ordinance before them. The third judge held that the first, but not the second, prerequisite had been satisfied.

The form of the notification in this case was based on the form used for many years in the Australian Capital Territory. A form to similar effect has also been used for varying lengthy periods in regard to the notification of ordinances of other Territories and of regulations made under Acts of the Commonwealth Parliament. The matters raised by the decision of the Supreme Court are extremely urgent. If the decision is correct then no ordinances made in the Australian Capital Territory since 1940 are in operation other than those ordinances notified in yesterday's special Gazette. Similarly, ordinances made in the Northern Territory, in Papua New Guinea and in other Territories of the Commonwealth over varying periods of years may be inoperative. Moreover, if the decision is correct, doubts exist whether regulations made over many years under Commonwealth Acts are in operation.

The Government has considered the course of appeal to the High Court. But the urgency of the matter and the far-reaching effect on the decision require that the effective operation of all these ordinances, regulations and other instruments be placed beyond doubt immediately by an Act of this Parliament. This is the purpose of the Bill before the Senate. It is designed to cover the position with regard to ordinances of all the Territories of the Commonwealth and also with regard to regulations, rules, or other instruments under a law of the Commonwealth or a Territory of the Commonwealth.

This is a Bill which has reached the Senate enveloped in an air of political controversy. It is unfortunate that much has been said which I think in more reflective mood would not have been said. There has been a degree of mischievousness and malice which has prevented a proper consideration of a matter which is designed to rectify a defect which it is in the community interest to have rectified as soon as possible. I am aware of what has been said in another House of the Parliament. I am also conscious of the fact that in this place one may rise to correct misrepresentations which have been said. I know that currency has been given to certain remarks attributed to me. In the course of the second reading of this Bill I take the opportunity to explain how I have been grievously misrepresented in a chamber where I cannot defend myself. I did not say to the honourable member for Prospect (Dr Klugman) that I believed that a Miss Russell, currently in prison for refusing to pay a fine, was being held illegally. I said to him in conversation, and quite frankly, that she was possibly in gaol illegally but that I did not know. It was a question which depended on whether the petty sessions ordinance was in force and that this was a matter of which I could not be positive. I also said that if Miss Russell or her advisers wished to take action they could do so, but my hope was that the validating legislation would be passed quickly and that this would resolve the position.

I did not say to the honourable member for the Australian Capital Territory (Mr Enderby) that I was prepared to withdraw charges if he could say to me that the people currently facing charges believed that at the time of the alleged offences the ordinance was invalid. I did not say that. I told Mr Enderby that I was not prepared to withdraw the charges. I believed that as hosts of other persons were in the same position as the people for whom Mr Enderby was making a plea, it was discriminatory to favour some and not others. He said that the cases could be distinguished. I said that if the persons concerned had a belief that the ordinance was invalid they could plead that and I thought that that would be a good defence. Mr Enderby said that of course they could not say that. But this is vastly different from what he attributed to me.

I also wish to correct the statement by the honourable member for Hindmarsh (Mr Clyde Cameron) that I had broken the law by falsely declaring my electoral expenses. I have previously publicly denied this allegation and I deny it again. Mr Cameron's statement was completely without foundation and is totally untrue. 1 feel it is prudent to recapitulate certain of the events which have led to the situation which has brought this Bill before the Senate. The Trespass on Commonwealth Lands Ordinance was made on 20th July of this year and it is No. 28 of 1972. Under it the main Trespass on Commonwealth Lands Ordinance was amended by the addition of provisions which made it an offence to do certain things such as camping, parking, leaving vehicles or erecting structures on certain Commonwealth unleased land. The ordinance desirably and sensibly filled a gap in the law. Of course, it provided power for an inspector oi a member of the police force to request persons who left their vehicles or erected structures without permission on unleased lands to remove themselves and their structures from the land. If they did not do so the ordinance empowered the inspector or police officers to remove the vehicles or articles from the land. Of course, we are all aware that, purporting to act under that ordinance, certain articles and structures were removed from unleased lands in front of Parliament House on 20th July.

Following action on 20th July, a writ was issued out of the Supreme Court of the Australian Capital Territory. That writ was issued by 4 persons: Mr Ambrose Francis Golden-Brown, Mr William James Richard Harrison, Mr Allan John Sharpley and Patricia June Eatock. In the writ before the Supreme Court of the Australian Capital Territory they sought a declaration that the Trespass on Commonwealth Lands Ordinance 1972, gazetted on 20th July 1972, was invalid and of no force and effect. They also asked for an injunction to restrain the defendant - the defendant was the Minister of State for the Interior and any inspector appointed under the Trespass on Commonwealth Lands Ordinance, any member of the police force and/or any other person - from preventing or interfering with the re-erection of tents and the replacement of articles therein or attached thereto at the place where the structure had previously been.

That writ and a motion for an injunction which was issued at the same time as the writ came on for hearing before the Supreme Court. The case was argued before the Court and the judgment of the Court was delivered, as we are well aware, yesterday. I think it is prudent to refer to certain things which the judges said. The judges made a declaration to the effect that the Trespass on Commonwealth Lands Ordinance was inoperative for the reasons which I have already set out. But they then had to deal with the claim which was made by these persons for an injunction to stop the Australian Capital Territory Police Force or any inspector or the Minister of State for the Interior from interfering with them or stopping them putting back their tents and other structures on unleased lands. Mr Justice Fox said:

The case for an injunction is based on an allegation that the plaintiffs fear that the police, acting under the Ordinance, will either prevent re-erection of the tents, or remove them if they are re-erected. Section 8a (2) of the Ordinance forbids the erection of tents by the plaintiffs on the land in question. Under ss. (5), if the necessary preliminary steps are taken, police officers can remove any tent erected, and the contents thereof.

I.   am of the view however that the plaintiffs have failed to establish any case for an injunction. They do not claim simply to be on the land, as pedestrians, or for some casual recreational purposes, or even as members of an assembly, as that term is ordinarily understood. They claim a right to erect and maintain a number of tents and live therein for an indefinite period. Whatever the position may be if the Commonwealth consented to such a course, it is apparent that the Commonwealth does not consent, but on the contrary actively opposes it. In these circumstances, the plaintiffs have no right to go on the land, or remain thereon, for the purposes mentioned.

That was the decision of Mr Justice Fox, the senior judge of the Supreme Court of the Australian Capital Territory. He emphatically denied the right of these people to be on those lands for the purposes for which they claimed to be there. That is a judicial decision which ought to have the respect of all members of this Parliament.

The other aspect of the judgments to which I will refer is what was said by Mr Justice Blackburn and Mr Justice Connor who, in a separate judgment, concurred with the view expressed by Mr Justice Fox. At the conclusion of their judgment they said these words, which I think are significant:

Our decision may have highly inconvenient consequences. There may be other subordinate legislation, vital to the orderly government of this Territory and other parts of the Commonwealth, which has been notified in the same way. Moreover, as we have not found the Ordinance to be invalid but merely inoperative, any benefit the plaintiffs receive from our decision is likely to be short-lived.

There we have from those 2 judges not only a recognition that the consequences of their decision extend far beyond the particular question which they then had before them and which they were resolving, but also a recognition that if a government acted responsibly and sensibly it would soon put right what was a defect capable of being put right and that any benefit which people might have temporarily would be a short-lived benefit. This is the way in which the Government views the situation.

In the light of all that has occurred 1 suggest that there is a degree of urgency attaching to this measure. I regret that for some 6 or 7 hours the Opposition in another place has debated politically this measure, and it is now some time after half-past ten this evening that a vital measure comes to this chamber. I know it is unreasonable to expect the members of this chamber to pass this Bill tonight, and no-one would seek to ask them to do so, particularly as a debate on the general implications was cut short today because we knew that this Bill was coming in. But 1 think that the wisdom and merit of having this Bill passed as soon as possible ought to commend itself to the responsibility of members of the Opposition, lt is the Government's hope, and certainly as far as we are able - if the Senate will agree with us - it is the Government's intention that this Bill should be passed tomorrow.

Certain consequences are already becoming apparent. The Court of Petty Sessions in Canberra did not sit today, and persons who were to have had their cases heard did not have their cases heard and magistrates who were to sit in the court did not sit. This means that at some stage in the future those matters will have to be determined. The Supreme Court of the Australian Capital Territory, in its criminal jurisdiction, did not sit today. Whilst there are doubts, for example, about the Juries Ordinance, the Court cannot sit. There are many questions concerning the whole body of law in the Australian Capital Territory - of course, this is what Mr Justice Blackburn and Mr Justice, Connor referred to - which have to be clarified if there is to be orderly government in this Territory.

So many matters are in doubt. There are the rights and obligations of persons which are dependent upon the various ordinances applying in this Territory. There are the many rights and obligations which people have under regulations made under Commonwealth legislation extending right across the territory of the Commonwealth of Australia. There are many pieces of legislation. There are the Companies Ordinance of the Australian Capital Territory, the Legal Practitioners Ordinance, the Workers Compensation Ordinance of the Australian Capital Territory and many others about which there is doubt as to the validity, under which the obligations imposed upon persons are inoperative and under which the rights which people would expect to be able to exercise from those laws cannot be exercised until this Parliament sets the position right. I hope that we will find from the Opposition in this place a willingness to recognise that there is a community responsibility reposed in the Parliament which we should exercise, and that the Opposition will not use this as a forum for engaging in some political debate. The Government has an obligation and the Parliament has a responsibility to enact this legislation as speedily as possible, and to the best of our endeavours we shall see it done.

It has been said by the Opposition - and it was apparent from question time in this place today, if one does not extend one's researches any further - that there is something reprehensible about what the Government is proposing to do, because it is said that this legislation in some way raises the question of retrospectivity. In the course of question time I recall that my colleague, Senator Rae, asked me whether there was a difference between retrospective legislation and validating legislation. Obviously there is a difference, and it is that difference which ought to be borne in mind on this occasion. Retrospectivity in the narrow sense, the accepted sense in which lawyers use it. is making some provision which was not in existence at a time in the past and allowing that to operate so as to be deemed to have been the law at that time. In the case of a truly retrospective provision it would, for example, affect things done at a time when it was quite lawful for them to be done and perhaps make them unlawful to have been done at that time. That is retrospectivity - when someone has done something which is lawful and then you turn round and say: 'You have done it lawfully in the past, it is now unlawful'.

On the other hand, validation is making valid something that, while generally believed to have been valid, when acted upon is found - and usually it would be found by a court of law - to be invalid. A validating measure may be expressed to validate the invalid provisions only for the future. But it depends on the nature of the problem, lt may be expressed to operate retrospectively by deeming the provision concerned always to be valid. That, of course, is the pattern that this Bill follows. I ask honourable senators: Do they really feel that there is a principle of law which says that, when the whole law of a community which has been operative for 30 or 40 years is said possibly not to be operative because of some technical defect, we as a Parliament with the authority to do it cannot say: 'We shall validate and make clear and lawful that which everybody has believed to be lawful all the time'? It would be unreasonable to suppose that there was any proposition that denied that course being adopted. Of course, that is what the Government proposes to do.

It has been said - .1 have heard the Opposition use this expression - that the Government is departing in some way from the great principles of the rule of law and is not following the practice of observing the accepted legal procedures. I am more than pleased to affirm again that the Government of this country does uphold the rule of law, it does believe in legal procedures and on this occasion it is acting consistently with the rule of law and with proper legal processes. It is strange to hear the Opposition parading an emotional adherence and dedication to lawful processes. The dedication we hear expressed at this stage is a charade and a sham. We know that members of the Opposition will support the rule of law only when it. is politically convenient for them to do so, because the record of the history of this country over the past 12 months and longer is full of examples in which the Australian Labor Party, contrary to its fine written platform, ignores lawful processes and ignores respect for the law.

I believe that what we have on this occasion is an instructive example of how the rule of law operates in practice. Under the rule of law all persons are equal, be they wealthy or poor and be they people in a position of privilege with access to wealth or humble people who have not many friends in high places. Also under the rule of law the Executive is equal with the citizen. The citizen is subject to the rules of the courts and the judgments of an independent judiciary, and so is the Executive. If the Executive is shown not to have followed procedures and so to have prejudiced the rights of individuals ->n a particular occasion, the courts will say so and the Executive will uphold the judiciary's right to say so. That is what has happened on this occasion. The Court has said that the procedures that have been followed have a technical defect. Whilst there may be some doubt as to whether the judgment would be upheld if it were appealed from - all lawyers have these doubts from time to time - the practical problem confronting the Government is to act immediately to set right what, if it is not set right, will cause havoc, dismay and a great deal of suffering for many people.

I believe that that is what the rule of law requires of a legislature. If it finds a situation in which the ordinary rights of people are subject to doubt, it sets the legislative processes in motion with a view to having the matter rectified. That is why we believe that this Bill will achieve its purposes. It indicates why we believe that it is important that this Bill be dealt with speedily and why we believe that so much of what has been raised and is being aired in various places is just so much political claptrap. I commend this Bill to the Senate.







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