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Thursday, 9 March 1972
Page: 619

Senator MURPHY (New South WalesLeader of the Opposition) - Senator Cavanagh has drawn attention to some matters of importance. In clause 6 the reference to 'either House of the Parliament' probably should not be there when one looks at the opening words 'unless the contrary" intention appears'. A better expression may have been a positive provision such as a clause 6a in the definition section to say that this does not apply to either House of the Parliament or to a committee of either House or of both Houses of the Parliament. Then it would be quite clear. I do not think that anyone would suggest that in an enactment of this nature it was intended to touch a House of Parliament or its committees. The draftsman has obviously followed the normal form when he has inserted the words 'unless the contrary intention appears'. 1 think Senator Cavanagh's point is that it is inconceivable that the contrary intention could ever appear. As I apprehend it, the AttorneyGeneral .(Senator Greenwood) perhaps would agree with that approach and one could not have the contrary intention ever appearing anywhere in this legislation. It would be a simple matter to insert a different clause, perhaps clause 6a, saying that this does nol apply to either House of Parliament. But that is a matter which can be adjusted in light of what Senator Cavanagh has pointed out. Perhaps it may be conveniently done. The intention is clear. It would be a very strange court which ever suggested that the existing provision was intended to cover Parliament or committees of Parliament. Another matter to which I would like to draw attention relates to clause 7 (2.) which states:

This Act shall not bs taken to affect by implication any provision of any other law in force in the Territory, not being a provision inconsistent with this Act.

In the second reading speech the AttorneyGeneral indicated that this Bill was not a code and that large parts of the law were not covered. An important part of the criminal law is the provision relating to a statement from the dock which, as I understand it, is traced from section 405 (1) of the Crimes Act of New South Wales. That section states: 405. (1) Every accused person on his trial, whether defended by counsel or not, may make any statement at the close of the case for the prosecution, and before calling any witness in his defence, without being liable to examination thereupon by counsel for the Crown, or by the Court, and may thereafter, personally or by his counsel, address the jury.

My understanding is that that is one of the provisions covered by clause 7 (2.) and thai there is no intention to do away with the right of the accused to make a statement from the dock. I repeat: It is my understanding that provisions which are traced through in the law, such as the important statement from the dock, would be covered by clause 7 (2.) and that they would remain. Perhaps it would have been advisable for the retention of some of these to have been expressed. I suppose the answer is that once you begin to spell out some it renders more questionable whether the remaining ones are retained. As long as it is clearly understood that matters such as that are untouched and, indeed, protected by clause 7 (2.), I would be content to accept the position that they remain part of the law in the Territory.

Turning now to the other question raised by Senator Cavanagh, I think it should be made clear for his benefit that the Bill, as 1 see it, draws a clear distinction between those Acts or ordinances in the Territory which will be affected by this Bill and those which are in the special category of containing a provision to the effect that the tribunal or person taking the evidence is not to be bound by any rules of evidence. There is a well known catetory of that kind, lt is said sometimes that the judicial power does not extend to those bodies. They have been dealt with in. some of the old cases. 1 recall that Moses v. Parker was one of those cases. In them the tribunal or person is said to be not really exercising judicial power. Indeed, the situation of the High Court as a Court of Disputed Returns is questionable. The cases suggest that if a tribunal is not bound by any rules of evidence that is a characteristic of nonjudicial power. Yet that is one of the instructions given to the Court of Disputed Returns. That was done prior to the Boilermakers case and a question arises around that point which, has npt yet been resolved. To my mind it would not be open under this legislation fbr an ordinance to depart from some of the provisions of this legislation.

Senator Cavanagh - Why could it not depart from it?

Senator MURPHY - Because the Bill says that it does not apply where the ordinance in question contains a provision that the tribunal or person is not bound by any rules of evidence. Therefore it is not open for an ordinance to be made that certain provisions are not to apply. It is only where there is a provision that the tribunal is not bound by any rules. Therefore it is not possible by way of ordinance to undermine, bit by bit, the provisions of this legislation. It is possible only for an ordinance to say that such and such a tribunal will be set up and will not be bound by any rules or that a certain tribunal already in existence will not be bound by them.

Senator Cavanagh - It has to contain the provision?

Senator MURPHY - Then it does not have any rules of evidence.

Senator Cavanagh - Then a Minister can decide that an ordinance will not have any rules of evidence?

Senator MURPHY - He could do that. That is true. But an ordinance could not be made which would have the effect of having some of the rules of evidence and not the other rules or, in some way, modifying the rules. It would have to be an ordinance that is bound by no rules of evidence.

Senator Byrne - An ordinance could be made but this Bill would not apply to it.

Senator MURPHY - That is right. It could only be made so as to exempt the body from observing any rules of evidence. It could not exempt it from certain of the rules under this Bill and not others. That is as 1 read the Bill.

Senator Cavanagh - Does that not make the matter more serious?

Senator Byrne - I do not follow that. It seems to me that the ordinance could be made to effect it in part. But this Bill may not apply to such an ordinance. Is that not so?

Senator MURPHY - No. This Bill applies to all ordinances, as I read it, except where an ordinance contains a provision to the effect that no rules of evidence are to apply. So if there is to be. some exemption by way of ordinance it can only be that a tribunal or person is exempted from all rules of evidence. One cannot start to undermine these provisions in some partial way. One can only set up a body or tribunal which is exempt from all rules of evidence, whether under this Bill or otherwise. That is as I see it. I would be grateful if the Atorney-General would indicate that what I have said about clause 7 (2.), particularly in respect of the statement from the dock, is how it is intended that the legislation should work.

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