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Thursday, 5 March 1970

Mr HUGHES (Berowra) (AttorneyGeneral) - I think I should start what 1 want to say by paying a tribute to the honourable member for Reid (Mr Uren) for putting the case that he wanted to put to the House with forbearance and restraint. His words seem to have been spoken a long time ago because, since the honourable member spoke, there has been injected into the proceedings of this House a great deal of thunder and heat and a great deal of laughter. The honourable member for Reid started off to discuss what he regards as a serious subject, with some sincerity and an element of seriousness in his approach to it.

I propose tonight to confined myself to answering the specific question put to me by the honourable member and repealed by the honourable member for Grayndler (Mr Daly). The specific question is this and only this: Assume for the purpose of the question that the allegations made in this House about the man Burchett are true. That is the assumption upon which the question is based, so I make it for the purpose of answering the question. The question goes like this: 'Why then do you not put this man up on a charge of treason?' Let me try to explain to the House in the short time available to me precisely why not. The law of the Commonwealth, the law made by this Parliament for the safety-

Dr Everingham - You changed it.

Mr HUGHES - 1 will come to that in a moment. The honourable member has a wonderful way of leading with his chin. The law made by this Parliament for the safety and the maintenance of the Constitution and the government of the country - I am not referring to the government of the country in terms of the Executive who sit on the front bench here, but the government in the wider sense - is the Commonwealth Crimes Act 1940-60. That Act defines what for the purposes of Commonwealth law is the offence of treason. The Commonwealth Crimes Act, which creates the offence of treason and the allied but lesser offence of treachery, bad no extra territorial operation whatsoever as it stood in 1950 or 1951 when the Korean War was in progress and as it continued to progress during 1952 and 1953. I think I can underline this point by quoting to the House a speech made by a very distinguished predecessor of mine, Sir Garfield Barwick, when he was introducing amendments to the Commonwealth Crimes Act in 1960. Mr Speaker, I quote from Hansard of the House of Representatives, dated 8th September I960, page 1027:

.   . Mr Speaker, let me remind the House that the present provisions of section 24 of the Crimes Act,-

That being the treason section: found in Part II, limit treason to the instigation within Australia or any of its Territories of a foreigner to make an armed invasion of Australia or any part of the Queen's dominions, or the assistance in Australia, by any means, of any public enemy.

Those words are quite explicit and I adopt them for myself as being a completely accurate statement as to how the law - the Commonwealth's taw - as to treason stood during the years when the Korean War was in progress. So making the assumption that I am asked to make for the purpose of answering the specific question put to me very plainly and very clearly by the two honourable members to whom I have referred, the answer simply is this: that Burchett could not now be indicted in respect of anything he did in Korea in those years because as the law then stood anything he did in Korea, however treacherous, or traitorous or disloyal or indecent it may have been, was not an offence against Commonwealth law as it then stood.

Now let me come forward to 1960. I think I should say this so that honourable members on the Opposition side of the House might take stock and consider anew whether some of the things that have been said - and I except the honourable member for Reid for he put a very plain question to me - might not smack slightly of insincerity in the light of what happened in 1960 when the Commonwealth Crimes Act was amended. The House ought to be reminded, Mr Speaker, that in 1960, when my predecessor . Sir Garfield Barwick introduced amendments to the Commonwealth Crimes Act so as to give that Act, in all its sections, including the sections relating to treason and treachery, an extra-territorial operation, honourable members who then formed the Opposition - of course many of them have gone - the Australian Labor Party, opposed the amendments, including those relating to the extraterritorial1 operation, tooth and nail, lock stock and barrel.

Mr CLYDE CAMERON (HINDMARSH, SOUTH AUSTRALIA) - Those amendments went a lot further than you say they did.

Mr HUGHES - But the point 1 am making is one which nobody will deny and I am sure the honourable member for Hindmarsh will not deny it. It is that the Labor Party opposed the amendment which was proposed and passed to give the treason provisions of the Act an extra-territorial operation. I think I have said enough to the House. I have been asked a specific question upon a specific assumption, which I have accepted for the purpose of answering the question, and I say that it is just not possible. However much decent thinking Australians may view with revulsion what this man did or may have done during the Korean war, the plain fact is that the reach of the criminal law does not extend out to get him.

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