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Tuesday, 3 December 1974
Page: 3054


Senator MURPHY (New South WalesAttorneyGeneral) - The Deputy Leader of the Opposition, Senator Greenwood, has referred to some tendency of the Government manifested only in the last week in regard to these matters. I remind him that the measure we were debating last week was not in the votes or any of the clauses of a Government measure. It was one on which there was a free vote. The question of the deletion of the provision for oaths was discussed in the House of Representatives in 1973 and the reasons were given for what was done. One of the reasons was that the provision has no practical effect. The other sections of the Act require officers to carry out their duties in a loyal and competent fashion. For example, section 55 of the principal Act states: (I.) An officer (other than an officer in the First or Second Division) who-

(a)   wilfully disobeys or disregards any lawful order made or given by any person having authority to make or give the order; or

(b)   is negligent or careless in the discharge of his duties: or

(c)   is inefficient or incompetent through causes which appear to be within his own control; or

(f)   commits any breach of the provisions of this Act or regulations thereunder shall be guilty of an offence . . .

There are procedures to deal with that. There are obligations upon the officers and those obligations are set out in plain terms in the principal Act. The breaching of those obligations is an offence. Section 56 deals with offences by an officer of the First or Second Divisions. Under that section officers may be charged by any person with any of the offences mentioned in section 55 with which I have just dealt. So there are obligations upon the officers to carry out their duties. It is considered that there is no reason for this kind of provision relating to the oath of allegiance or affirmation being in the enactment. Senator Greenwood may say- and he doesWell, why take it out?' The information I have is that there is no provision for an oath of allegiance in the State Public Services or in the British Civil Service. So it is not an unreasonable course which the Government is maintaining. Indeed, the argument should perhaps be put the other way: Why should there be this provision? It is said that it is a barrier to the employment of some migrants and that it creates problems for those who may have some allegiance to others. I understand that a provision was introduced into the Act in 1 966. Its purpose was stated in the Parliament by Mr Freeth in the House of Representatives and by Mr Gorton in the Senate as follows:

Clause 25 arises from the need to overcome a problem which virtually prevents the employment of United States nationals in Commonwealth departments. Under the Public Service Act all temporary employees, except those employed overseas, must, like permanent officers, take an oath or affirmation in which they swear or declare allegiance to the Queen and to uphold the Constitution. But if an American citizen does so he loses his United States nationality. As the professional and technical skills required on certain Commonwealth projects of national importance are sometimes most readily available by the use of limited numbers of United States personnel, it is desirable to permit temporary employment, without requiring the taking of the oath or affirmation, in appropriate cases. This attitude is consistent with that adopted in legislation relating to a number of Commonwealth statutory authorities- for example, in sub-section (4) of section 21 of the Science and Industry Research Act, relating to the Commonwealth Scientific and Industrial Research Organisation, which was enacted in 1 949. 1 should mention that the waiving of the oath in these circumstances will not affect the normal administrative processes of employment, including appropriate warnings regarding disclosure of official information. Before exercising his discretion to waive the need to take the oath or affirmation the Governor-General is to satisfy himself that the proposed employment will not be prejudicial to the national interest. I should also emphasise that there will be no provision for waiving of the requirement that appointees to the permanent staff must take the oath or affirmation

In 1966 we got to the point where for the nonpermanent staff a provision was introduced to do away with the taking of the oath or affirmation. Mr Freeth and Senator Gorton pointed to the fact that the provision still remained. The quotation goes on to deal with some other matters. Therefore, we have the position that there was in the Australian Public Service a departure from what was provided for in the State Public Services and the British Civil Service. The amendment of the Act last year brought us into line with the provision in those Services and avoided the practical difficulties that are caused to persons who for some reason- a legitimate reason- may not want to take the oath or affirmation of allegiance. We have indicated that the law still applies to those persons. There is an obligation upon them not to break the provisions of the Act, to carry out their duties promptly, and so on. Is not this a reasonable and desirable state of the law? If the information given is correct- and we assume that it is- why has there not been some great agitation in the British Civil Service to insert some such requirement as suggested by Senator Greenwood? Why is not the Liberal Party canvassing the States of Victoria and New South Wales? Why is there not agitation in Queensland to insert the requirement in the law relating to the Queensland Public Service?

It seems to me that it is a reasonable attitude that is being taken by the Government here. There is no reason why officers in the Public Service should be put in a position different from that of other persons, particularly where this may cause difficulty to those persons. We know that we have a large migrant population in Australia, and one would think that the elimination of this provision relating to the taking of an oath or affirmation would assist in the assimilation of migrants. We submit that we have some cogent and sensible reasons for adhering to the course that was taken by the Parliament last year, and we suggest that the Committee of the Senate should not re-insert the portions of the provision which were deleted, or such of them as Senator Greenwood now proposes should be re-inserted.

Senator Sir MAGNUSCORMACK (Victoria) (8.28)- I rise merely to extract an opinion from the Attorney-General (Senator Murphy). The requirements that must be observed by a citizen go back a long way, to the very roots of the history of the society from which we derive. I do not intend to canvass the historical matter at all. What I wish to put to the Attorney-General in point blank terms is: Let us take the case of Ehrlichman in the United States of America, who was an officer of the United States Government. He took it upon himself as an individual citizen, not as an officer of the Government, to extract all the relevant documents relating to the security of the United States of America. He took them along to a copying machine and began to fan out- whether or not it should have been done is not the point- all the high grade secret information which he had obtained by virtue of his office -


Senator Murphy - I think you are referring to Ellsberg, are you not?


Senator Sir MAGNUS CORMACK -Yes, Ellsberg. I am getting mixed up with the Watergate affair, which is on my mind a bit. Yet under the United States Constitution this man was not able to be brought to heel- it does not matter what one's ideological proclivities are in this respect- for such a flagrant breach. I wish the Attorney-General would listen to me and not to his adviser.


Senator Poyser - You are getting more egotistical every day.


Senator Sir MAGNUS CORMACK -Mr Temporary Chairman, I am addressing myself, through you, to the Attorney-General and I think that I am entitled to expect him at least to listen to what I have to say. If he wishes to canvass my arguments afterwards he may then turn to his adviser, who is sitting near him. That is all I am referring to. The curious situation we have is that this man in the United States of America who, I assume, had given some sort of undertaking- he may not have done so; I do not know- and who then took high grade information relating to the security of the United States of America to a copying machine and publicised it was not in a position to be attacked through the courts by the Executive. One cannot have a system of government in which officers of the Executive divulge information of a high grade unless one is able to pursue them for doing so. I use that case as an illustration of the problem that seems to me to be engaging the attention of the Committee at the present moment. I shall take the argument no further at this stage. I merely ask the AttorneyGeneral, if he will, to reply to me as to how he would deal with such a situation. I can easily foresee circumstances arising in Australia whereby an officer of the Australian Public Service seizes upon the attitude taken in the United States of America and says: 'But I am entitled to divulge the high grade security information'. I give warning that I am willing to pursue this argument a little further, depending upon the advice that the Attorney-General is willing to proffer to the Committee.







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