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Thursday, 14 September 1972
Page: 870

Senator CARRICK (New South Wales) - Very briefly, as I understand it, the defect in the Australian Labor Party's argument about retrospectivity is that it would be an evil law which took something which had been regarded as innocent in the past and on which people had acted in the belief of their innocence and retrospectively made it criminal. But I think that the Committee should remind itself that it was the belief of all the people in the past that the law existed and they well knew that the acts which they committed were illegal acts. That is quite clear.

Senator Cavanagh - But they were not.

Senator CARRICK - It was their belief that they were illegal acts, because at that time it was the general belief that they were illegal acts.

Senator Cavanagh - Belief in the law at the time.

Senator Wilkinson - This was before the Ordinance.

Senator CARRICK - I have a lot of helpmates in this.

Senator Greenwood - They are not really helping you.

Senator CARRICK - No, and they are not helping themselves. As I understand the position, the question is whether the Ordinance was legal with regard to one specific thing. The question as to whether it was legal for the Aborigines to camp in their tents on the lawn is, as I understand it from the judgment, irrelevant, anyhow, because as I understand the judgment - I ask the lawyers to correct me if I am wrong - the judges ruled that the Commonwealth, being the owners of the land, had a continuous and full right to remove people from that land under the common law.

Senator James McClelland (NEW SOUTH WALES) - That is not why they were prosecuted.

Senator CARRICK - That may or may not be so. I take it from the Opposition that this is so. Therefore, we do not have retrospectivity by telling people who believed that they were innocent that they are now guilty. These people knew that the law existed, and we are validating the law which they believed to be real at that time. The law applied in exactly the same way. If Senator James McClelland's argument is correct, then the Labor Party must stand up now and say that the prosecutions which Labor's former Attorney-General, Dr Evatt, brought against the miners in 1949, under what turned out to be invalid arbitration legislation which had to be validated, were wrong and that the legal action that was taken in this Parliament was retrospective. In point of fact, there is a series of parallel actions like the one we are considering. They happen continuously in every Parliament in the world. There is the greatest difference between retrospectivity and the validation of laws which people believed to be valid and under which they acted believing them to be valid.

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