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Thursday, 14 September 1972
Page: 882


Senator MURPHY (New South WalesLeader of the Opposition) - There is a great difference between the Removal of Prisoners (Australian Capital Territory) Act and this Bill for an Act. In the former Act we were dealing merely with the proper means of holding prisoners.


Senator James McClelland (NEW SOUTH WALES) - People who had committed an offence.


Senator MURPHY - There was no question but that these persons had committed an offence against federal law. There was no doubt whatever of the right to have them held and that they were due to suffer a penalty. The only question was the administrative one as to where, in fact, they should be held. To equate that case with this is not really reasonable or fair. That was not a case in any way of a retroactive criminal law. There was no question as to the guilt of the people or as to the fact that they had been properly convicted and sentenced. That did not arise at all and I am astonished that it should be suggested that the cases are in any way equal or even similar. What has happened here is that we agreed that there should be a Bill to deal with civil rights. I do not. think that the Attorney-General disputes what we are putting in relation to this. We agree that the civil rights of people should be corrected. No-one disputes this.

This is a commonsense approach. But there is a very important principle that you should not turn that which was legal in the eyes of the law into illegality. If the Government wants to do it, it can do it. I see that it will do it but it will be offending against the Declaration of Human Rights which has been declared to be the standard for peoples everywhere. It will be declaring itself against the rule of law as enunciated by the International Commission of Jurists in repeated documents. It will be declaring itself against the Convention on Civil and Political Rights which, again, is a standard for peoples everywhere, lt is easy to avoid doing this. We have put a proposition forward which will make it possible to avoid this. The Attorney-General said in reply to criticism that we have got away from a selective position and into a general position. At last he has got the message that we have been trying to give to him. If honourable senators look at what is before them they will see that this is an addition to what is in the proposed legislation. All the civil and political rights of persons are not being interfered with. If you like, it could be said that they are being validated. That is not the correct word, but I will use it. The civil situation is being corrected. It is said in respect of criminal matters that people have been sent to gaol and served their time or they have paid their fines. That is too bad. That is over and done with. There is nothing we can do about that. Bui we want to say that nothing in this legislation shall render a person liable to be prosecuted or convicted of an offence if he would not have been liable to be prosecuted or convicted if this Bill had not been passed. We want to say that if people did something which was not offensive in the eyes of the law this legislation will not allow them to be prosecuted or convicted for thai action. Is that too much to ask the Senate to accept?


Senator Durack - Clause 2a applies to the future as well as to the past.


Senator MURPHY - No. It does not. If the honourable senator knew what had been done in the past, he would know the factual situation. The Crown has notified the matters in the 'Gazette'. It has gazetted the regulations and ordinances that it wanted gazetted. It has moved. The other night the Government moved and it is open for it to move in the 'Gazette' properly anything that it wants to. So if the honourable senator looks at the factual situation he will see that it docs not apply to the future at all. If the honourable senator who interrupted wants to know the answer, it is that the Government has not set out to change the law because it is obvious that these regulations and ordinances should be properly notified. All it has tried to get over is the fact that they have not come into effect previously. The honourable senator's comment is not properly directed to the amendment.

Clause 2b states that if people have been convicted of an offence in an area where the law was not operative they need not be subject to a penalty. This applies only if they have been convicted of a breach of a law which was not, in fact, in operation.


Senator Byrne - Senator Murphy, would you be good enough to explain clause 2c in the few minutes remaining to you? I am not certain about that one.


Senator MURPHY - Yes. A person is not entitled to bring any criminal or civil proceedings to recover a pecuniary penalty paid or to recover damages in respect of a period of imprisonment served by the person before this legislation was introduced. We are saying that whatever has happened - whether they paid a fine or suffered imprisonment - is over and done with. It might be said technically, as the Attorney-General said: Why do we not proceed to pay back all the fines of people who have been affected in this way? He can argue to that effect. But what we have tried to do is to be sensible. We have put forward a reasonably acceptable course to the Senate and have said that in regard to those who have suffered imprisonment or paid a fine, that is the end of it. But no person in the future is to be required to pay a fine for a breach of what was thought to be a law but is not a law. We have also brought forward a subsidiary provision in regard to recognizance.

I regret the way in which this whole matter has been dealt with. The AttorneyGeneral has suggested wrongly that the discussions here have taken place only because an amendment had not been prepared. That is not true and he would find that to be the position if he spoke to one of his officers. Even if it were true, it would not matter. The fact is that we have had lo consider what was the best course to take and what to put before the Senate. We have taken some little time in putting before the Senate what we thought was the most appropriate amendment. I do not think that should be held against anyone. It is our duty here to consider what should be done. I do not think that this great matter ought to be dealt with on that basis.

The Attorney-General says that if we carry this amendment it will create a problem. He said that he will not know which persons to release and which persons not to release. There are some innocent people in gaol right now who, if this amendment were passed, would be entitled to be released. Because it is difficult to ascertain who those persons are, the answer of the Attorney-General is to keep all those people in gaol. This includes those people who are innocent as well as the persons who would not be covered by this enactment. I believe that the administrative convenience of the Attorney-General should not stand against what we conceive to be the human rights declared by mankind in the United Nations and in other world forums. This is not something that has come from the Opposition just as some political gimmick. No answer has come from the Government to say that this principle should not be acceptable to mankind. It is apparent that the Government, the Australian Democratic Labor Party and one or two Independent senators, perhaps, are not prepared to accept the world standard of human rights.

We think that the amendment is desirable. We think that it would serve the interests of the Senate. It is a reasonable approach to this matter. It is consistent with the highest standards which have been adopted by humanity in relation to these retroactive criminal laws. If honourable senators divorce themselves from the present situation and the fact that a general election is to be held, I think that they would be proud to have this amendment adopted. I think that many honourable senators will have reason to regret itif they do not support a point of principle but rather think that they should be caught up in sweeping through this House legislation in some panic and hysteria and avoid the discharge of the responsibility to observe the rule of law, to observe the standards and to maintain the rights of people, even those whom you oppose, those with whom you disagree or even those whom you despise.







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