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Thursday, 14 September 1972
Page: 872


Senator CAVANAGH (South Australia) - In entering this debate for the first time, I am wondering whether the AttorneyGeneral realises what the Opposition is thinking despite how often Opposition senators have expressed it. 1 do not know whether his statement is correct, that there is a question whether those who have been convicted under a law which has now been found not to be operative have any claim and whether they were unjustly convicted. I can recall many cases of conviction under a law as a result of which a penalty was paid and then, when someone had the initiative to appeal to the High Court, the High Court ruled that the law was invalid and quashed the conviction. But there was no question of wrongful conviction in previous cases. I can recall many prosecutions in the Arbitration Court against the trade union movement. The boilermakers case was one. When it was taken to the Privy Council, the Privy Council ruled that the powers of the Arbitration Court and the Arbitration Commission must be separated. But there was no question that those previously before the court had been wrongly convicted and that, if counsel had .taken the matter up in another case and the court was then of the same opinion as the court which upset the regulations, the ordinance or the Act, they would have been innocent of the charge that had been preferred against them.


Senator Byrne - That was held to be not. valid legislation.


Senator CAVANAGH - That is so. It was inoperative legislation which had punitive sections which were applied prior to the decision that was upset. Another case that comes to mind is the James fruit case. There had been many convictions in respect of the sale of dried fruits prior to the James case, but there was no argument of wrongful conviction of those who were charged in the earlier cases. In this matter no-one is suggesting that all convictions under all the laws or regulations which have been enacted since 1904, although they may have been inoperative, were not proper convictions. But on this occasion when some doubt is cast upon the validity of these ordinances, since the lower court found on the evidence of the prosecution that someone had been guilty of an offence and imposed a conviction, the Supreme Court took a rather dim view of it. Not only did the Supreme Court dismiss the prosecution but, as I understand the position, it awarded half the costs to the defendants, which must be paid by the Commonwealth. What the Labor Party now says goes not to all previous decisions of the court but to one previous decision of the court. People were arrested. At the time they were arrested various charges were laid against them, some involving offences against the police. At the time the police took this action they had no authority, according to the law, to take it and so they themselves were guilty of assault. The police had no authority to take the action they took. These arrests were made in the belief that they were in accordance with the law. Between the time of arrest and coming to trial, the Full Court determined that the law was not operative. Surely justice will be done to these individuals only if they are not prosecuted.

Let me give an example: A fortnight ago a person could innocently have parked his car on unleased land. This was not an offence against the Commonwealth. As a result of the retrospective or validating legislation - whatever we call it - to be passed tonight that person will be subject to a charge in respect of an action which he took a fortnight ago and which was not then an offence. He acted perfectly innocently under the law of the Commonwealth a fortnight ago. By the passage of this legislation he may now be charged with an offence in respect of his actions then. I doubt - I would like to seek some lead from the legal fraternity on this question - whether a judge would convict a person of such an offence and whether, if the person was convicted, a penalty would be prescribed in respect of an action which at the time it was taken was not in breach of the law of the Commonwealth. To offend against the law, an intent must be present and if these-


Senator Byrne - If it is not a breach, the person could not possibly be convicted.


Senator CAVANAGH - We suggest that when certain things happened when the Aboriginal embassy was removed, people took certain actions which were not in breach of any operative law-


Senator Byrne - The honourable senator said that if the court found a breach had not occurred he did not think it would convict. If the court found that no breach occurred, it could not possibly convict.


Senator CAVANAGH - I agree with the honourable senator, but he is simply playing with words. What I am saying is this: If the court today heard a certain charge, under the existing Ordinance it would find that there was no breach of the law in respect of something which may have been done a fortnight ago. But looking at the case of the innocent individual who a fortnight ago did something which was not in breach of the law, we see that tomorrow, as a result of the passage of this legislation, the action of that individual will constitute a breach of Commonwealth law. That is what the Government is doing.

The ramifications are not as wide as everyone suggests. Workers compensation has been mentioned. Workers compensation is not paid under regulations. Workers compensation is a payment made under an Ac of this Parliament. We have-


Senator Greenwood - I would have thought that related to Commonwealth employees compensation. The Workmens Compensation Ordinance of the Australian Capital Territory is the law which regulates ordinary private employers.


Senator CAVANAGH - Yes. The AttorneyGeneral recalls to my mind that that is the legislation that applies. There may have been an incorrect notification in this respect, but that does not extend to cover the case mentioned by Senator Carrick of the employer who did not have a guard around machinery. An employee injured due to lack of that protection would have a claim under common law. If an accident occurred because a safety guard was absent from machinery, the injured party would not make a claim under workers compensation. I do acknowledge that liability of employers in the Australian Capital Territory would come under the ordinance mentioned by the Attorney-General. My opinion is that no-one as yet has said that this was not an operative regulation. We are of the opinion that as many other ordinances were notified in the same way as the ordinance on which the court based its findings those ordinances would be defective too.

We are saying that we acknowledge that what was thought to be the law for so long should remain the law. We acknowledge the need to make the regulations and ordinances operative. But today one person is in gaol and others are to be tried on charges in relation to acts which, at the time they committed them, were not in breach of any operative law of the Commonwealth. By our action tonight, if this legislation is passed what was not a breach of the law when it occurred will be made a breach of the law through this legislation.

The amendment foreshadowed by Senator James McClelland seeks to exempt from prosecution and penalty the persons in the category that I have mentioned. I ask the Attorney-General to consider the amendment seriously. I cannot understand why it is insisted with hatred that 12 persons or 27 persons or the number who were present at the Aboriginal embassy on the occasion in question should be prosecuted. Why is prosecution of these people insisted upon? This seems an act of vengeance to me because the removal of the embassy was resisted. Does this matter in the eyes of the law? Will the good government of the Commonwealth be affected if these people are not prosecuted or are not sent to gaol? We seek by our amendment to save not only those persons that I have mentioned but also others who may be caught in this net.







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