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Thursday, 6 December 1973
Page: 2599


Senator BYRNE (Queensland) -Very often in this place matters of little consequence are projected for debate in a highly dramatic atmosphere. But so often matters of great consequence are discussed here in an atmosphere of complete relaxation and apparent inattention. Yet they are matters of very deep and abiding consequence. I regard this Law Reform Commission Bill as a matter falling into that category. There is nothing more important than a proper, acceptable and workable system of law. Very often in modern communities we see the total collapse of the community because of a breakdown in the legal system. I often wonder whether a great number of the troubles in the United States of America which are currently before the people of the world are not in some sense attributable to the complexities and the delays in the legal administration and judical system generally in that country. We face a difficult problem here because of the concept of federalism. Sovereign states exist and of course all of them have brought their own law from Great Britain. They still administer it within the concept of common law and of statute law. In some States imperial statutes are relied upon and are still operative law within the State sovereignty. It is obvious that if this position develops we will have a completely diversified system of law. We may ultimately find a diversified system of jurisprudence which I think would be highly undesirable if we concede that the system of jurisprudence stemming from the English common law and the English concept of law has a tremendous harmony and value and has been historically established. We are likely to lose this harmony if various systems develop in individual States unless there is some way in which uniformity can be preserved and the common principles can be projected throughout the legal systems. At the moment all States are trying to modernise and consolidate their law and are trying to make it relevant to modern conditions. At the same time they are making it much easier of access and much simpler of interpretation. It is inevitable that with a series of law reform bodies operating in the same field- that is, in the 6 States and in the Commonwealth- we will have a diversity in the final conclusions. Ultimately we will have a static position in which the laws of the various States will be consolidated and become frozen, as it were. Any attempt thereafter to try to establish a uniform system of law in the Commonwealth will become increasingly difficult. In other words, this is the most opportune time for movement to take place so that we can get commonly accepted legal principles and a common system of jurisprudence and law throughout the whole of the Commonwealth. It is for that reason that the Australian Democratic Labor Party welcomes the creation of this Law Reform Commission at the hands of the Commonwealth Government. We know that its task will be immense. We know that many of the laws are no longer relevant in the modern context. Much of the drafting is appropriate to an earlier age. But the important thing is that the position is even more extreme in the States which, of course, are much older. Many of the States go back to old statutes which, as I have said, are still current within the States and under State sovereignty. Therefore to try first of all to find a comprehensive system of law for the Commonwealth territories is important. The Territories are developing, expanding and populating. The Northern Territory and the Australian Capital Territory, as adverted to by the Attorney-General (Senator Murphy) in his second reading speech, will be vast areas of people, industry and commerce. While the law in those places today may operate in relation to a comparatively small number of people and a comparatively undeveloped industrial and commercial area, in an increasing degree it will apply in very vast areas and in very dense population situations. Therefore the Commonwealth system of law will assume a very important role; much more important than it is now.

If alongside this Commonwealth system there develops and continues to exist 6 different systems of law with different statutes and principles, perhaps extending even to the common law, we will have a complexity which will be adverse to the interests of the Australian citizen. More particularly will that be so with the rapidity and ease of interstate and Commonwealth communication and with the passage of people and commerce from State to State. We will have many more instances where the law of one State will apply in another State to particular transactions. As the Attorney-General said we virtually have to apply private international law between the States. This is a highly undesirable situation and one which would need the attention of a statute law revision committee. It should try to obviate and overcome this situation by making the laws uniform throughout the Commonwealth. I do not know whether the Commission in the form set out in the Bill is the best. I would say that in its composition it contemplates expert support for its investigations. The Bill contemplates those skilled in the law will comprise the Commission.

I think the important thing is that the States will, in the fullest degree, co-operate in the functioning of the Commission. That is of prime importance because what is projected in this Commission is something which will embrace ultimately State laws in an attempt to get uniformity. Therefore there must be the complete and total co-operation of the States.

As the Deputy Leader of the Opposition (Senator Greenwood) said, there was a discussion between Senator Murphy and representatives of Opposition Parties as to the terms of the amendments proposed by Senator Greenwood. I interjected when Senator Greenwood was discussing the principles which might be taken as stemming from the Bill to which he found objection. I indicated that in the light of that concordance the discussion was somewhat academic. Perhaps use of that word 'academic' was unfortunate. Perhaps I should have said that the discussion was theoretical at this stage. Whilst the principles may still be quite well discussed by Senator Greenwood, as he did discuss them in relation to the passage of this Bill and the fact that those provisions were deleted, it was somewhat theoretical. But undoubtedly what Senator Greenwood said and the implications he drew were of consequence and I think completely valid. Perhaps use of the word 'academic' was not appropriate.

I think that this is a most important Bill, the real significance of which may quite easily escape the attention of members of the Parliament but it will have vast and far reaching consequences. More particularly, in view of the Constitutional Convention which has been convened, which has sat already and is continuing its deliberations, it would be inappropriate if the constitutional relations of the Commonwealth were allowed to be redetermined and redefined, as no doubt they will be in some areas if the recommendations of that Convention are adopted, and it would be inappropriate if at the same time the diversity of law were allowed to continue without interruption and the systems were allowed to continue to develop in their own way. It seems most appropriate that there should be a parallel attempt to look at the legal system while we are looking at the Constitution.

I think there is a great deal to be said for a diversity in life. I do not like to see complete homogeneity because it is soul destroying and stultifying. However, so far as the law is concerned, in a community which is racially, culturally and socially substantially homogeneous, I think it is important that the system of the law and the operative law should be substantially uniform.

Therefore even though in other areas of life I might welcome and support diversity, in the legal field I think that the certainty of the law and the general availability of the same law to all citizens of the Australian Commonwealth are matters of prime importance.


Senator Greenwood - That generally applies where there are restraints on conduct or codes of conduct.


Senator BYRNE -That is quite true. There is nothing more inappropriate than that a citizen should find that in one area of Australia he is subject to certain restraints and constraints while in another area there may be more or less emphasis on those things, or there may be a complete denial or an actual prohibition. I agree that in that area uniformity of law would be of prime importance. After all, if we consider the criminal law, there are still States operating under individual criminal statutes, some of which stem from the English criminal law. In Queensland, as in Western Australia, we have a codification of the criminal law. For example, in Queensland the law of defamation comes from the Defamation Act and from the definitions of defamation within the criminal code. I think that from memory the defamation law in Queensland makes it possible to defame a person by defaming a member of his family who may be dead. I have the impression that that law was not available in New South Wales and perhaps still is not available.


Senator Murphy - It is available but very rarely.


Senator BYRNE - Yes. There are situations like that where there is a very marked diversity of law which is most unfortunate because rights are conferred on an Australian citizen in one State and denied in the other, or vice versa. Therefore I commend this Bill to honourable senators. As I said, by a concordance with the Attorney-General and the Opposition Parties the amendments to be proposed by Senator Greenwood substantially have been accepted by the Government and the consequences will be apparent when the Attorney-General addresses the Senate. Subject to that, I support the Bill and the proposals put forward by Senator Greenwood which I understand will be accepted by the Attorney-General.







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