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Thursday, 5 March 1970

Mr WHITLAM (Werriwa) (Leader of the Opposition) - I wish to speak on the single point raised by the honourable member for Reid (Mr Uren) and the honourable member for Grayndler (Mr Daly) and upon which the Attorney-General (Mr Hughes) has spoken. It was raised by me by way of a question yesterday morning to the Attorney-General. I would like the Minister's view on a further aspect of this matter which I want to put to him. We will give him leave to speak further on it if he wishes.

The question raised by my colleagues was this: Assuming, as the Government does, that the things which the Prime Minister (Mr Gorton) and other Ministers have said about Mr Burchett are true, why does the Attorney-General not indict him for treason? Those facts which they assume to be true would seem to justify a charge of treason. The Attorney-General has said - I would think quite correctly - that as Attorney-General of the Commonwealth he could not indict Mr Burchett for treason as defined by a Commonwealth statute because there was no such definition at the time of the acts which Mr Burchett is assumed by Ministers to have committed. 1 have not looked up this matter afresh; I am going on my memory. About the only treason case which, I think, there was an effort to initiate in Australia was the case of Mr Charles Cousens which- my colleague, the honourable member for Hunter (Mr James), mentioned. It was alleged that Mr Charles Cousens bad given comfort to the King's enemies by broadcasting from Radio Tokyo during the Second World War. The Commonwealth Attorney-General took proceedings for a magistrate to hear that evidence against Mr Cousins and then sent the transcript of that evidence to the State Attorney-General in the State where Mr Cousens was domiciled in the.- hope that the State Attorney-General would find an ex officio indictment against Mr Cousens. In the upshot, the State Attorney-General did not do so because, as I recall, he thought that no conviction was likely. But I do not believe that he refused to find the ex officio indictment against Mr Cousens because he believed that, if the evidence was accepted, there could be no offence then in law or that in law at that time no crime would have been committed.

The treason in that case was alleged to be common law treason, this is, treason under the law of England which each of the Australian States has inherited. I am pretty clear in my recollection that, at that time, the Commonwealth was seized of facts and found witnesses and tapes which would have established that, in its view, Mr Cousens had committed treason under the common law. It is true that the Commonwealth Attorney-General could not have indicted Mr Cousens, but the relevant State Attorney-General could have indicted Mr Cousens.

So, while I appreciate that yesterday the Attorney-General chose not to answer my question on the law and contented himself with saying that, as at present advised, he did not propose to bring any charges against Mr Burchett, he in fact during the last 20 minutes has given reasons why he would not bring any charges against Mr Burchett. I accept his reasons. For myself, I would think that they were sound. But one of his predecessors did, in fact, do what was open to a Commonwealth AttorneyGeneral, namely, have evidence taken before a magistrate and have that evidence transmitted to the relevant State AttorneyGeneral.

I ask the Attorney-General now whether he will state whether he has thought that the facts assumed by the Prime Minister and other Ministers to be true would justify a trial for treason under the common law. The Commonwealth statute, as I understand it, does not displace the common law treason, which is still available in each of the States. I ask the Attorney-General whether he has considered that course, which one of his distinguished predecessors took. I reiterate that if he cares to answer leave will be given now.

Mr Hughes - Mr Speaker, I ask for leave to speak again.

Mr Whitlam - We will give leave.

Mr Calwell - Mr Speaker, before the Attorney-General replies may I ask him to defer to me because I want to ask him a couple of questions. I also would like to have his view on a couple of questions of law.

Mr SPEAKER -Order! Does the Attorney-General defer to the right honourable member for Melbourne?

Mr Snedden - Mr Speaker, now is not the time for the Attorney-General to be asked for opinions on the law. This is an adjournment debate.

Mr SPEAKER - That is right. I am asking the Attorney-General whether he wants to defer to the right honourable member for Melbourne.

Mr Calwell - I would like to ask the Attorney-General a couple of questions dealing with the law, without any heat. I will not take more than 2 minutes.

Mr SPEAKER -Order! The position as the Chair sees it at the present time is that the Leader of the Opposition has given the Attorney-General leave to speak if he wishes to.

Mr Calwell - The Leader of the Opposition has not the right to give:-

Mr SPEAKER -Order! Does the Attorney-General wish to defer to the right honourable member for Melbourne?

Mr Hughes - I do not want to trespass upon the wish of the House. If it is not desired to give me leave-

Mr SPEAKER -The Attorney-General has been given leave to speak if he wishes to.

Mr Hughes - If the right honourable member for Melbourne wants to say something on which he hopes to receive an answer from me, I will defer to him.

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