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Thursday, 28 May 1942


Mr BRENNAN (Batman) .- The declaration by the Prime Minister that he had acquiesced in the trial of a person accused of murder in this country before a tribunal set up by a foreign country caused a severe shock to every thinking person who is interested in the maintenance and integrity of the British legal system. Both the fact itself and the manner of its accomplishment are equally reprehensible. This dangerous departure from British legal practice occurred when Parliament was sitting, and under its very nose, but without its being consulted. A felony is said to have been committed in Australia against one or more Australian citizens, and the person charged is to be tried before a court set up by a foreign country in this country. The principle of trial by jury is to be abrogated and abandoned in the matter of a capital charge, and a military court substituted. That is a radical and dangerous departure from correct procedure. The offence is alleged to have been committed in Australia. It has apparently nothing to do with military discipline, and if it has, then the military authorities can deal with that aspect of this case in their own way. Any person committing a felony in this country is required to answer to the laws of this country. The offence is against the people of Australia ; it is against the peace, order, and good government of this country. In a personal sense, it is against the life of a citizen of this country, and the relatives and friends of the person said to be put out of life are entitled to look for the vindication of our law. The attempt of the Government to cover the matter by regulations, in principle improper, will probably be found, in view of the regulations having been hastily contrived, insufficient to meet all aspects of the case. Making due allowance for the fact that the Government has no trained legal adviser responsible to this House by reason of the absence on duty elsewhere of the AttorneyGeneral (Dr. Evatt), I think that the action of the Government, in all the circumstances, is to be deeply deplored.

The analogy of the law passed by this Parliament in regard to visiting forces from different parts of the British Commonwealth of Nations is a very unconvincing one. I had the honour conferred upon me, by the present Prime Minister, when he was the Leader of the Opposition, of leading the debate on that subject for the Opposition, and I took leave to say that the legislation was open to objection from many points of view, and I was able to quote, in support of the view I was putting, high legal authority in Great Britain, where the change had been opposed by distinguished lawyers in the House of Lords. In any case, that was a matter of the application of a system of British practice, which is common to all members of the British Commonwealth of Nations. Britain is the source of law as far as Australia is concerned, and I pointed out at that time that it was open to objection that visiting soldiers from Great Britain should not have, for example, recourse to that important arm of defence, namely habeas corpus, and that we had always rightly boasted that the tribunals of this country remained open to every person suffering an injury through the British criminal law. I pointed out then that the measure was objectionable from that point of view. Now it is intended, and the precedent is laid down, to extend this very dangerous principle to foreign countries. If it is extended to one friendly foreign nation it will have to be extended to another friendly nation, also. There are people who take a narrow view of this matter, and suggest that if a request of that kind comes from a friendly ally, whose friendship is so much needed by us, and so welcome to us, we should immediately comply with it. I suggest that we should look farther. "We should have regard to the foundations of British liberty. One of the sound foundations upon which British liberty is built is the fact that persons, who are still living and who have suffered by an assassin's hand the loss of one near and dear to them, should have the opportunity and satisfaction of calling in the aid of the law of this country to vindicate their rights as far as they can be vindicated in the case of death. I am very far from prejudging this case against any person charged. Some people are only too prone to accept as proof that which is alleged. I do not fall into that error. I merely confine myself to the intrinsic fact, namely, that murder is suspected, and is said to be charged, and a grave departure is proposed from the well established fundamental principle of British law that the person charged should be brought to trial under the law and procedure of this country.







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