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Thursday, 14 September 1972
Page: 859


Senator RAE (Tasmania) - My remarks have been preceded by a personal explanation from Senator Bonner. 1 feel that is perhaps a good way to commence to address myself to this subject because it is perfectly clear that the whole of the atti- tude adopted by the Opposition in relation to this matter is a sham and an opportunity for vulgar abuse, personal abuse and totally unfounded comment. That we should have had to spend so much time debating a question which I would have thought in the circumstances would be regarded by any responsible Party as a matter which was so obviously in need of immediate attention shows the attitude of the Opposition. In the interests of the people of the Australian Capital Territory and of the other Territories of the Commonwealth which may be affected, I would have thought that the Opposition would have done what is could to expedite some action to provide for the people of those areas a set of laws which at the moment are in doubt.

But what does the Opposition wish to do? Its members wish to talk about something to do with the United Nations, something to do with human rights but nothing to do with the human rights. Senator Keeffe, of the people of the Australian Capital Territory; nothing to do with their rights to have a body of laws available to them to protect them, to provide their rights for them, to provide protection from the crimes which may otherwise be committed against them and to provide the organisation of their business affairs, such as hire purchase, and matrimonial affairs, such as legal aid, together with all the other matters which have been referred to already in this debate as coming within the area of the rights and privileges provided by the ordinances and regulations which at the moment are subject to doubt in respect of the people of the Australian Capital Territory and the other Territories. But, oh no; the Opposition is not concerned with them.

We have heard concern expressed by Senator Keeffe and others on questions which are totally irrelevant to the major question before the Senate. That major questiion is whether, having found that there is a very minor defect in the procedure which has been adopted in this country for 32 years in the form of notification in the Commonwealth Gazette, we should correct that defect to provide a body of law for the Commonwealth Territories. That is the question. It is not a question to do with the Aboriginal embassy or whether the rights of Australian Aborigines are being infringed in some way. lt is not an opportunity to throw abuse at Senator Bonner, to whom I pay tribute for the work he has done on behalf of the Aboriginal people of Australia as well as on behalf of the rest of the Australian population.

Senator Bonner,unlike some others, does not distinguish between races in the way in which some members of the Labor Party are prepared to adopt a racial approach to their attitudes in relation to these matters. I deplore the introduction of a racial approach to the problems of the people of Australia, whatever the colour of the skin of those people may be or whatever their origins may be. They are Australian people whether they come from Greece or South Africa or whether their ancestors were born in Australia before white man visited the country or whether they came from Timbucktoo. If they are residents of Australia, they are Australians and should not be looked at from the point of view advocated by Senator Keeffe and others as being entitled to some distinction in their rights in comparison with the rights available to others. 1 think that what the Labor Party is doing in relation to this matter has been well covered by a number of speakers on this side of the chamber. I wish particularly to adopt what Senator Durack has said and briefly in support of his remarks to look at what the amendment proposes. The Bill provides validation for what is a very minor point of defect in the procedure adopted by succeeding Australian governments, be they Liberal, Labor, or Liberal Party-Country Party coalitions as has been the case now for 23 years; and long may that situation continue. That procedure is not something novel. The suggestion that the Attorney-General has been in some way deficient is shown up for the sham that it is when we look at the Hansard of last night and see what Senator Murphy said. As appears at page 753 of Hansard Senator Murphy was making out the case that the Attorney-General should have been warned that a point of this sort was likely to be taken, that there was some reason to have suspicion as to whether there was a defect in the form of notification that had been used for the past 32 years. Senator Murphy said:

I well recall being associated with a case in the

Supreme Court of the Australian Capital Territory several years ago where this very complaint was made. The attention of the Government should have been drawn to it. As a matter of common sense and regard for the rights of citizens, the Government should have cleaned up the procedure.

I asked by way of interjection: 'What was the decision of the court?' Senator Murphy continued:

You can make your own speech, senator. My recollection of the matter is that the court thought that it was satisfactory in the sense of not breaching the law.

It hardly supports the view being put by Senator Murphy at that time that the Government should have been warned that there were some defects when the court itself, according to his recollection, found that there was not a defect. When we look at the sort of case put forward about this being retrospective legislation we find that the Attorney-General, by way of answer to a question by me at question time yesterday and by way of statement in the debate which has taken place, pointed to the difference between retrospective legislation and validating legislation. This, clearly, is validating legislation, lt is not retrospective legislation in the normal sense of retrospective legislation.

Perhaps I could repeat the difference between the 2 types of legislation because it seems to have escaped a number of senators who have addressed themselves to this question. Where there has been a body of law of one sort or another which people have believed was valid legislation, which people have acted under and acted upon, and subsequently it is found there has been some defect in that legislation, it is, as has been pointed out. particularly by Senator Durack, common throughout the parliaments of this country and other countries that action is taken to validate the acts of people taken under what everyone, until the date of the decision of the court, believed was valid legislation.


Senator Murphy - Are you saying that that applies to the criminal law, that if a person escaped on some fine point of construction of a section they would go back and make all the acts which occurred criminal although at the time they were innocent?


Senator RAE - If we take the example of a government of the same party as Senator Murphy who has just interjected - the Labor Government in Tasmania - apparently that is the attitude which is adopted, because not only in relation to the matter which I have mentioned - the validating of the action of the HydroElectric Commission which possibly had infringed the penal sections of the National Parklands Act in Tasmania by continuing unauthorised activities in a protected area, but also on other occasions the Tasmanian Government has taken similar action, lt has waited until Parliament has risen to introduce delegated legislation, regulations which had been subject to debate within the Parliament. The 65 miles per hour speed limit was one such instance. The Government waited until the Parliament rose at Christmas time to introduce the regulations. The matter had been fully debated in the Parliament and, the Government not having succeeded in relation to one disallowance, waited until the Parliament rose and introduced the measure with the full knowledge that the Parliament would not be able to sit again for several months to disallow the regulation which the Government had just introduced. That is the sort of action which has been taken by the Labor Government in Tasmania.

In relation to the criminal law I have, so far as I can recall, recollection of validating legislation being taken in relation to traffic regulations and other types of regulations such as that. There was a recent one, an amendment to validate in a case which I know very well because the amendment was taken after I had put up the submission and before the Court's decision was given. An amendment was made by the Labor Government in Tasmania to correct the defect. That is perhaps an answer to Senator Murphy. Perhaps I could now go on to the amendment which states:

Nothing in this Act affects in any way the rights and liabilities in civil and criminal law of persons charged with offences -

Then follow these glorious words: arising out of incidents outside Parliament House, Canberra, on Thursday, 20th July 1972, and Sunday, 23rd July 1972, 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 Commonwealth Lands Ordinance 1972.

What on earth does that mean? Perhaps that is the first question we should consider. Already there has been some debate in relation to that. Quite obviously one of the things it could mean is that if someone were charged with a traffic offence, with driving under the influence or driving negligently and knocking someone down, or even if there were a civil action arising out of a motor vehicle accident which might have occurred in the vicinity of the events referred to in the amendment, all those things could be covered in the same sort of way as the Labor Party would protect ils friends and supporters by putting the unions above the law. It is similar in its construction to the type of legislation which was proposed and Which has been supported on various occasions in this chamber by the Australian Labor Party. There is a clear attempt to be able to provide selectively for its friends but to disregard entirely the interests of others. In relation to putting unions above the law, I find it necessary to dwell for a moment on the similarity between the type of approach adopted there of saying that in relation to any civil or criminal action which might arise out of something connected with an industrial dispute - for instance, someone driving his car past the Building Workers Union celebrations in Sydney-


Senator James McClelland (NEW SOUTH WALES) - What has something in Sydney to do with this?


Senator RAE - There is a similarity of approach.


Senator James McClelland (NEW SOUTH WALES) - Why not talk about the Australian Capital Territory?


Senator RAE - I know that the honourable senator may have some difficulty in understanding the relevance, but I shall continue to make the point that I made a moment ago, that there is a similarity of approach between putting unions above the law and putting some of the people whom the Labor Party not only encouraged but probably instigated into actions which have led them into the sort of trouble in which they eventually found themselves. There is a clear similarity because the sort of action that is taken is designed to put union members above the law and to take away the rights of other people in relation to what happens during an industrial dispute - in other words, to encourage lawlessness without any sort of responsibility. If a union secretary decides to take action in the streets of Sydney to stir up an industrial dispute and someone is injured or a car is damaged and overturned in the riot that takes place, according to the Labor Party no action could be taken. So, too would the Labor Party impose on the people of the Australian Capital Territory a similar type of provision in relation to the Trespass on Commonwealth Lands Ordinance where it wishes to ensure that its friends are not liable to either criminal or civil action arising out of what happened on 20th and 23rd July. The similarity of the selective attitude of the Labor Party in respect of both these matters is a matter which I believe is important for the Senate to bear in mind when it is considering this amendment, because it is so typical. The Labor Party looks after its friends; it selectively distinguishes between those who are to be given rights and those who are not.


Senator James McClelland (NEW SOUTH WALES) - You are looking after the Government's friends at the moment are you not? Where is your report from the Securities and Exchange Committee?


Senator RAE - That is the inane sort of remark that I would expect from you, senator.


Senator James McClelland (NEW SOUTH WALES) - Are you looking after your friends?


Senator RAE - I could reply, senator, in a way which I do not think would serve the purpose of either the Senate Select Committee on Securities and Exchange or the Senate with any benefit whatever. I shall not reply to that interjection other than simply to say that I flatly deny the imputation. I challenge you, Senator McClelland, to say that outside this chamber.

The ACTING DEPUTY PRESIDENT (Senator Wood)- Order! The Senate Select Committee on Securities and Exchange has nothing to do with this piece of legislation.


Senator RAE - Let us go back and look at the amendment, the selective amendment. the amendment designed to help friends. Perhaps behind it there was some intent to influence people but 1 doubt it. I should think it was put up only to win friends or to help friends. Obviously its effect would relate to the people who were engaged in what apparently were unlawful activities except for the fact that there was some defect in the notification of a large number of ordinances. It would protect them from the normal consequences of their action. 1 think it is relevant to bear in mind what 1 believe the Attorney-General has already said, that is, that the people charged with any offences arising out of the incidents on 20th and 23rd July are not charged under the Trespass on Commonwealth Lands Ordinance. They are charged with offences which, in every sense of the word, would have been offences at any time irrespective of some defect relating to the Trespass on Commonwealth Lands Ordinance. They are charged with assault, with using indecent language and with using threatening langauge, or changes similar to that which have nothing whatsoever to do with the Trespass on Commonwealth Lands Ordinance. It is stretching the imagination to suggest that we should give protection to those people for that type of activity and, presumably, even go further and give protection in respect of civil wrongs which they may have committed during that time and deprive other people of any rights they may have in any action for assault. Yet the Australian Labor Party would have us take that action.


Senator Bishop - Mr Deputy President, I rise to a point of order on the basis that the honourable senator's arguments are not relevant. Whatever the Australian Council of Trade Unions and the unions are doing about trade union rights and the rights of individuals has no connection with the matter at hand. You have drawn the attention of honourable senators on this side to matters that were not relevant and 1 ask you to do the same in the case of the present speaker.


Senator Greenwood - Speaking to the point of order, Mr Deputy President, I think that the right of honourable senators to draw appropriate analogies where a principle is involved is at the very heart of proper debate. I understand that Senator Rae is emphasising the point that there is a selectivity in the approach embodied in the foreshadowed amendment. This is an approach which would seek to put certain persons in a favoured position in contrast to other persons when the same general legal consequence applies to all. When you single out some people obviously you are favouring them. I submit that Senator Rae is entitled to use that argument and to equate it with the argument that is well known to be part of Australian Labor Party policy, seeing that the amendment has been moved on behalf of that Party, that is, that unions and unionists are to be put above the law in the case of industrial trouble and that they are not to be responsible for any actions they take which cause injury to individuals. That is the broad principle. Why should not an honourable senator be able to draw that analogy? T think the point is a very important one that nothing should be said or done by you, Sir, by way of ruling which would prevent proper debate with proper examples and proper analogies being available to make the point.


Senator Hannan - It is impossible, Mr Deputy President, to disagree with the argument advanced by the AttorneyGeneral and Senator Rae's right to put it. I realise that the analogy which Senator Rae is drawing is an extremely strong one. The report of the Townsville meeting of December last year is a matter which has a direct bearing on the debate now taking place, lt is almost impossible to draw a more accurate or a more correct analogy. If we look carefully at what was said-


Senator Murphy - Mr Deputy President, speaking to the point of order, Senator Bishop has indicated that, in view of what is being done by speakers supporting the Government to waste the remainder of the quarter of an hour, he wishes to withdraw his point of order.

The ACTING DEPUTY PRESIDENT (Senator Wood) - Order! During debate it is possible oft times for people to make reference to some situation which can give point to their argument and which relates to the legislation before the Senate. The thing is that honourable senators should not get too wide. They should confine their remarks as much as possible to the legislation before the chamber.


Senator RAE - It is unfortunate that apparently Senator Bishop was not listening to what was going on because he was about 5 minutes behind time. I had passed from what he referred to but I will go back and repeat it if he likes so that he will get a better understanding of it.


Senator James McClelland (NEW SOUTH WALES) - Why not talk about the Bill?


Senator RAE - I am talking about the amendment, Senator McClelland, which I think is relevant.


Senator James McClelland (NEW SOUTH WALES) - The amendment has not been moved yet.


Senator RAE - The amendment has been foreshadowed. The point I was making-


Senator O'Byrne - You are gagging the debate and you are steamrollering it.


Senator RAE - I had not noticed that I was steamrollering anything. I thought that 1 was addressing myself to both the Bill and the foreshadowed amendment and I will continue to do so. I was in the course earlier of pointing out the difference between validating legislation and retrospective legislation, something which apparently entirely escapes Senator Murphy and some other honourable senators. Of course, that is not surprising. I have described validating legislation. Turning to retrospective legislation, all members of the Senate Standing Committee on Regulations and Ordinances are only too well aware of this type of legislation. It is a matter which concerns them greatly. That Committee of this Senate is specifically responsible for ensuring that in relation to delegated legislation the retrospectivity aspect of it is taken into account when considering whether an ordinance should be allowed or disallowed. I was amazed to hear during the debate on this Bill in another place the complaint made by a member of the Opposition that one of the disgraceful aspects about delegated legislation was that there was no opportunity for it to be reviewed in any way at all. Obviously that person had not only not heard of the Senate Standing Committee on Regulations and Ordinances, he had never heard of the fact that ordinances are tabled and may be disallowed by the House. I would have thought that that was particularly relevant to consideration of the question of the propriety or otherwise of the Government's use of ordinances and regulations to legislate for the people of the ACT and the other Commonwealth Territories.

Retrospective legislation is legislation introduced de novo and then its operation is dated back to a period of time before the date on which it becomes operative. That is the sort of thing to which Senator Durack referred as having been done by the Labor Party when it was in government in Western Australia. It decided to make its legislation retrospective in operation and adversely affect the interests of an individual, or more than one individual. Retrospectivity is something which always should be approached with caution. I certainly would join with Senator Murphy if he were correct in saying that this is a matter in which retrospectivity is the significant element; but it is not. This is validating legislation designed to create the situation which everybody believed to be the situation and which has been the situation since 1940. Therefore the foreshadowed amendment is spurious. It is an attempt to protect the interests of a few friends of the Labor Party. It is typical of the selectivity of the approach of protecting your friends and not protecting the general public which we have come to believe is typical of the approach which we might anticipate in the event of the Labor Party ever being in a position to implement any of its spurious ideas in this Commonwealth Parliament.







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