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Tuesday, 22 November 1960

Mr WHITLAM (Werriwa) .- by leave - I move -

In proposed section 24ab, omit sub-section (3.)

The effect of the amendment is to remove the " known character " provision from the first of the three places where it occurs. These are the worst of the Barwick blots on the Australian statute-book. They have been universally condemned and not just by superficial commentators as the Prime Minister (Mr. Menzies) describes them, not just by Communist dupes or by persons who have not read their books, as the AttorneyGeneral describes them. They have been condemned by persons such as Sir John Latham, a former Attorney-General of the Commonwealth and a former Chief Justice of Australia; by Professor Stone of the University of Sydney and Professor Sawer or the Australian National University; by Mr. Gregory Gowans, Q.C., who wrote a series of articles on the legislation, particularly on this proposed section, for the Melbourne " Age "; by another anonymous author who wrote similar articles for the Melbourne " Herald " and the " Sydney Morning Herald "; by Mr. John Kerr, Q.C., and by other counsel. They have also been condemned, Sir, by several present Supreme Court Justices, as the AttorneyGeneral knows, but whose identities, as he alsoknows, I am not at liberty to divulge.

The references occur in respect of the three offences of sabotage, espionage and breach of official secrets. Those three offences are committed if a person does certain things for a purpose intended to be prejudicial to the safety or defence of the Commonwealth. So far, Sir, nobody can cavil at such acts being made crimes and being made subject to severe penalties on proper and regular conviction. But under this legislation, to show such a prejudicial purpose it is enough to give evidence of a person's known character - that is, his bad reputation. To take the only instance that the Prime Minister has given on the only occasion on which he has commented publicly on this bill, and to take all the instances which the Attorney-General has given in this chamber, on television and in lengthy articles written for the newspapers, reputation in those circumstances means political reputation.

The menace which is particularly felt by the Labour movement, political and industrial, is that a political reputation which is anathema to the Attorney-General or to the Prime Minister is easily acquired or given in trade union affairs, and persons who are known as pacifists, or militants, or aggressives or progressives might very readily be given a reputation or, for trade union purposes, might seek a reputation, which could go against them on their trial for any of these serious offences - that is, the anti-patriotic offences of sabotage, espionage and breach of official secrets. The evidence may be given, not by a person who knows them, but by a person who gives the evidence of character in any court, and gives it in the only circumstances in which it can now be given - except when the accused person himself provokes it - that is after conviction and before sentence.

It will be able to be given by a policeman or a security officer or anybody else who will go into the box and say, " This is the reputation that the accused bears ". It is true that the witness is subject to crossexamination, and that contrary evidence can be given; but the menace of it lies in this fact - that it can be given, and obviously will be given, where there is no other adequate evidence to show that sabotage, espionage or breach of official secrets has occurred, where there is no other adequate evidence to show any purpose prejudicial to the defence of our country.

It will be urged that these provisions are somehow sanctified by usage. It is true that there were similar provisions in 1871 in an English statute dealing with rogues and vagabonds, with recidivists. If they were found guilty, the maximum sentence would be three months' gaol. That section was put into the English Official Secrets Act of 1911, and it was adopted by the Fisher Labour Government and unanimously passed by this Parliament in one section of the original Crimes Act a couple of months after the outbreak of the First World War. The section has never been used in Australia, and in England there is no recorded instance of its use. Yet the Attorney-General is now making this provision apply not only in the one case where it applies in the present act, but he is putting it into effect in relation to the more serious offence that replaces that offence - the offence of espionage, as distinguished from the old offence of unlawfully spying. He is, moreover, introducing this for the first time in the new offence - new in Australia - of sabotage and the newly defined offence of serious breach of official secrets.

Such evidence cannot be given in cases launched under any other legislation in Australia except under the original unlawful spying section of this act, where it has never been given. In criminal matters such evidence is excluded unless the accused person seeks to prove in court that he has a better character than he really has, or unless he attacks the character of the prosecutor or of a witness for the prosecution. Character will be used now against the accused where there is no evidence from conduct or circumstances pointing in any direction on the issue of prejudicial purpose.

This proof of bad character - of political reputation - by direct evidence is an easy and effective weapon to wield against an accused person. Proceedings under these new provisions are likely to be taken in conditions of national tension and emotion, when every precaution is neces sary to ensure, not ease of conviction, but fairness of trial. Evidence of bad character, when admissible, is usually given by an official such as a police officer who, ir\ evidence-in-chief, speaks of the accused's general reputation. It is a form of hear-, say - easy to assert and difficult to rebut. Evidence of bad character - political reputation - as proposed now in three provisions, in this bill is almost certain to cause a. -miscarriage of justice in a case in which ia person of allegedly bad character-a person with unorthodox political viewshappens to be, on the occasion in question, actually innocent of the criminal purpose alleged.

It is true that the Attorney-General has circularized three amendments. Two of them make no difference. The remaining one is no safeguard. It makes no difference that the judge can admit evidence only if it is relevant. That would have been the case anyhow. It makes no difference that the judge has to direct the jury that the evidence is relevant only on the question of purpose. He would have had to do so anyhow. It is no safeguard that the judge cannot admit the evidence if he thinks it is out of proportion in its prejudice to the accused, because the important thing in criminal trials is not the views of the judge but the views of one's fellow men and women on a jury.

I conclude with some reported remarks made by Mr. John Kerr. Q.C.. who is not averse to the general purpose of this bill, but, like everybody else who has expressed a view on this matter - the judiciary, counsel and professors of our universities - has said that -

It would be very prejudicial to allow the prosecution to prove that a man was a Communist or a fellow traveller, or that he had supported Communist policies, because this might prejudice the jury on the central question of whether he had committed the act charged. There should be as departure from the traditional British procedural where a man has to be proved guilty of the ac*. The proposed amendment could open the way dp guilt by association.

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