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Wednesday, 13 September 1972
Page: 795


The PRESIDENT - Order! Opposition senators listened to the Attorney-General with a reasonable degree of quietness. Now the least honourable senators who sit on my right can do is listen to Senator James McClelland replying, without intruding on his right to speak in the debate.


Senator Rae - Mr President, I rise to order.


The PRESIDENT - What is the point of order?


Senator Rae - I raise a point of order under standing order 418. My submission is that offensive words have been used against the Attorney General by Senator James McClelland and. as well as his remarks not being in relation to the subject matter of the debate, imputations and personal reflections have been made. I take the point of order so that the Bill may be dealt with on what I suggest would be a proper basis, namely, a debate on the merits rather than a personal attack on the Attorney-General which is unfounded particularly in the light of what we heard this afternoon from other honourable senators opposite.


The PRESIDENT - 1 listened to what was said and I do not think it reached the stage where that standing order can be invoked.


Senator James McClelland (NEW SOUTH WALES) - I was about to draw a contrast between the protestations of the Attorney-General and his devotion to the rule of law and the practice of the Government, of which he is the leading legal adviser. On another occasion on which we were debating in this chamber his fitness to hold his office, he made this defence of himself and his announcement of the principles that he claimed guided him in his conduct:

I believe in freedom under the law and I believe that the law can be maintained only if people arc vigilant to recognise the values which it has for society, and the freedoms which il protects. I will persist in that statement and I will use every forum, every platform, every debate and every opportunity that I have to make sure that the people of Australia appreciate the values of freedom under the law.

A little later he said:

The obligation of an Attorney-General is to uphold the observance of the law.


Senator Douglas McClelland (NEW SOUTH WALES) - When did he say that?


Senator James McClelland (NEW SOUTH WALES) - He said that in a debate in this chamber on 1st March 1972. Let us look at the history of this Ordinance which he is now defending and which he is so anxious to reinstate. The Minister for the Interior (Mr Hunt) referred in a debate in the other place to the existence of what came to be known as the Aboriginal embassy, which was situated opposite this building and which was an example of a frustrated minority in this country attempting, as dramatically as it could, to draw attention to the fact that it just could not get its voice heard by this insensitive Government. He remarked that the men and women who were camped there were behaving with decorum and had given no reason to be removed. That is a matter of record, although the honourable senator has on his face the smirk which usually betokens his discomfort when he is reminded of the truth. After the Minister for the Interior had acknowledged thai these people were behaving themselves, hr nevertheless announced on 11 th May that the Government did not like to be reminded of its own shortcomings by having these people opposite Parliament House, and indicated that he would introduce an ordinance in order to have them removed. He made this significant promise, a promise by the way which he went back on: 'Adequate public notice will be given of the coming into effect of the ordinance'. I would ask honourable senators opposite, including the learned lawyers who are amongst them, to study the judgment delivered yesterday by the Australian Capital Territory Supreme Court. This judgment makes it perfectly clear that if there was one thing which was not done it was that adequate notice was not given of the coming into effect of the ordinance.


Senator Greenwood - It was given to the Aboriginals in the camp there.


Senator James McClelland (NEW SOUTH WALES) - What was that?


Senator Greenwood - It was given to the Aboriginals in the camp there on the Monday. They said that they would depart. Then the other people came in to make a confrontation.


Senator James McClelland (NEW SOUTH WALES) - Let us look at the sequence of events to see what actually happened. The Ordinance was made on 30th June. Nobody knew about it until the Commonwealth Gazette of 20th July. At 9.45 a.m. on that day, the Aboriginal embassy was removed. The occupants of the embassy had no opportunity to get a copy of the Gazette. Does the Attorney-General deny that statement? What opportunity did the Aborigines have to get a copy of the Gazette?


Senator Negus - The Aborigines would not be able to read it.


Senator Rae - How long had negotiations been going on to provide alternative accommodation?


Senator James McClelland (NEW SOUTH WALES) - I wish to draw the attention of the Senate also to a very intelligent interjection which has come from Senator Negus, who suggested that the Aborigines would not be able to read it. Also, I would like honourable senators to hear-


Senator O'Byrne - Who said that?


Senator James McClelland (NEW SOUTH WALES)

Senator Negus,the enlightened senator from Western Australia.


Senator Douglas McClelland (NEW SOUTH WALES) - What did he say?


Senator James McClelland (NEW SOUTH WALES) - He said that they would not be able to read the Gazette if they had it. Surely the Attorney-General should be astute to uphold the principle that people who are about to feel the force of the law should be fully acquainted with what that law is. But no, the occupants of the embassy had no opportunity to get a copy of the Gazette. The Gazette said that copies of the Ordinance could be obtained by post from various places of which the addresses were not stated. Is this informing people of their rights?


Senator Withers - What do you call an address'?


Senator James McClelland (NEW SOUTH WALES) -

Senator, havea look at the judgment.


Senator Withers - How do you define an address'?


Senator James McClelland (NEW SOUTH WALES) - In any event---


Senator Withers - Come on! Support your argument.


Senator James McClelland (NEW SOUTH WALES) - If you will read the judgment, senator-


Senator Withers - Come on!


Senator James McClelland (NEW SOUTH WALES) - If you read the judgment and if you are capable of understanding it, you will find that the judges said that these people had no opportunity.


Senator Withers - Come on! Stay with your argument.


Senator James McClelland (NEW SOUTH WALES) - They were not told where exactly they could get it.


Senator Rae - They only had to go to the Department.


Senator James McClelland (NEW SOUTH WALES) - I know that this is a joke to Senator Rae.


Senator Rae - It is?


Senator James McClelland (NEW SOUTH WALES) - It is a great joke to this upholder of the rule of the law. He does not really believe in the rule of law for Aborigines. Let us go a little further. This step was taken significantly when the Parliament was not Sitting in the hope that it would go unnoticed and that there would not be a protest from senators on this side and from members of the Labor Party generally. Let us consider the next step when the Government came undone, as it came undone yesterday. The Commonwealth Gazette gazetting the new Ordinance was published after midnight last night, bearing the date of the day before yesterday. The House opposite rose at 20 minutes to midnight. The Bills and Papers Office of that House was closed at 15 minutes to midnight. After midnight, the Gazette bearing the date of the day before yesterday was published. Nobody could obtain a copy of the Gazette. These are the people who would tell us that they are devoted to the rule of law. If we recall the statement that I have just read from Senator Greenwood's protestations of his noble principles, we can see how far the Government of which he is a member and which presumably takes his advice on these matters departed from the noble principles that the enunciated on that and on several other occasions when he has been justifying himself. We claim - and we claim that we can prove our case up to the hilt - that the real vice-


Senator Sim - Huh!


Senator James McClelland (NEW SOUTH WALES)

Give me a chance, senator, and I will prove everything that I claim to be able to prove. We claim that the vice of this Bill which is before us tonight is that it has retrospective operation and that it makes acts criminal which were not criminal at the time when they were committed. We claim that this breaches a sacred principle of our system of law. We say that if the Attorney-General and those on the other side had any devotion to the rule of law they would make an exception of those who have already been charged under this law. At this stage, I wish to foreshadow an amendment that I will move during the Committee stage. I will moye, if honourable senators are interested in hearing it, the following amendment:

Page 2 after Clause 3, add the following new clause:

4.   Nothing in this Act affects in any way the rights and liabilities in civil and criminal law of persons charged wilh offences arising out of incidents outside Parliament House, Canberra, on Thursday, 20th July 1972 and Sunday, 23rd July 1972-

I interpolate here to say that there was another incident on that date - where those charges or incidents arise out of or are related to the purported notification in the Gazette of 20th July 1972 of the Trespass on Commonweatlh Lands Ordinance 1972.

I point out that this is a very limited amendment and it seeks to establish the principle, to which we on this side are dedicated, that the people who have been charged with offences under laws which the courts of this land have said were not operative at the time should not have those charges proceeded with.


Senator Rae - All the laws that were not operative?


Senator James McClelland (NEW SOUTH WALES) - No, not all the laws. We are not here gloating over the difficulties in which your ineptness has landed you. We admit that you are in a hole. We do not want to see you foundering in that hole. You have not the decency to admit that you have made a mess. We do not want to see you wallowing in that mess. If you had been listening closely you would have seen that our amendment is confined to those people who are the victims of this particular Ordinance.


Senator Rae - You wish to be selective for the benefit of your own friends.


Senator James McClelland (NEW SOUTH WALES) - I take it that the principle that Senator Rae is espousing now is one of consistency. I would have thought that the lawyers opposite would have been a little more humble in the situation in which they find themselves. They are really not in a position to boast about their performance, are they? I wonder why Senator Rae did not notice this before the Full Bench of the Supreme Court of the Australian Capital Territory told him. Mr President. I notice the hour and I ask for leave to continue my remarks later.

Leave granted; debate adjourned.







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