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Thursday, 17 November 1960

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) .- Mr. Chairman,section 80 of the Australian Constitution provides that the trial on indictment of offences shall be before a jury. Our forefathers knew what language meant, and although the Deputy Leader of the Opposition (Mr. Whitlam) says that they thought something different, the High Court of Australia has said quite plainly that those words mean what they say, and that when you try a man on indictment you must try him before a jury. There has been no bypassing of the constitutional provision at all. All that has happened is that the Constitution did not go any further than our forefathers meant it to go. It did not go as far as would suit the Deputy Leader of the Opposition.

Section 12a of the principal act contains three significant sub-sections. Sub-section (1.) provides -

Any proceeding in respect of an offence against this Act, although declared indictable, may, with the consent of the defendant, be heard and determined by a Court of Summary Jurisdiction.

That is a most useful provision, because a jury trial can at times be a very doubtful benefit to a man. There are many, many people who would very much rather face a magistrate who could inflict a maximum penalty of one year's imprisonment or a pecuniary penalty, and who would rather pay for legal assistance at a rate appropriate to trial before a magistrate. In addition, there is a very great magisterial system throughout Australia. It is highly developed and highly responsible and, as far as I know, very well respected, and it gives great service to the community.

Sub-section (2.) of section 12a of the principal act reads -

A Court of Summary Jurisdiction may, if it thinks fit,-

So you have interposed the judicial discretion oi the magistrate - upon the request of the prosecutor, hear and determine any proceeding in respect of an offence against this Act, although declared to be indictable, if the offence relates to property the value of which does not exceed Fifty pounds.

The community, of course, has somewhat of an interest in the cost of the administration of the law. This provision states that an offence which a magistrate thinks can fairly be tried summarily may be so tried at the request of the prosecutor if the offence relates only to property worth £50 and no more. A similar provision is present in State legislation, too. Both Victoria and New South Wales have long had identical provisions. Queensland has a provision that dates back, I think, to 1898, but in that instance the amount is £5 instead of £50. No doubt, one of these days the Queensland Attorney-General will look at his money values and come up nearer to £50.

This is an old and well-entrenched principle in the law, and I think that we should do the community in general and many accused people in particular a great disservice if we took away the power of the prosecutor to ask and of the magistrate to decide that a case be determined summarily. A man who is accused, particularly for the first time, even of an offence relating to a small amount of property, is not always in an emotional state in which he can decide quite what is best for himself, and it would not be right for a man to be able to put himself and the community to the expense of a jury trial in circumstances in which a magistrate thought it proper to try a case summarily. The law does not require a provision that would permit that. In short, the sub-section allows a magistrate to take account of all the circumstances. This applies also to the prosecutor. I do not know why we should always think that the prosecution is without responsibility. Before a case is launched under the federal scheme, the papers have filtered through quite a few hands. It is not like the procedure in the States, where very often the matter is determined in the police station. With a Commonwealth offence, the papers filter through the department, and I think it very important to bear that in mind.

In connexion with the serious offences proposed under the bill, it seemed to me when I first looked at the matter that it was highly unlikely that a case of treason or treachery would relate to property at all and certainly not to property of a value of less than £50. That did not seem to me to be practical. With respect to sabotage, it seemed to me that though it was possible it was somewhat unlikely that such offence would be committed with property of very small value. However, as the suggestion was made that this was a possibility, I thought it right to put the question beyond doubt. As honorable members well know, my disposition is not to leave a matter in doubt, if I can avoid doing so. I follow this course even at the risk of the gibe that I have changed my mind or brought along an amendment. I thought the right thing to do was to provide that the serious offences of treason, treachery, sabotage and espionage, which was dealing in secrets with intent to hurt the country, should be made punishable on indictment in every instance and that they should not be dealt with by a magistrate even by "consent but should be dealt with by a jury. That is the first amendment that the Government proposes, to ensure that the serious offences will be tried only before a jury.

The other two offences which come under the bill, as distinct from existing offences, relate to the taking of official secrets with an intent to harm the country or by carelessness. The punishment in the latter case is six months and in the former the maximum is two years. If by some chance it could be said that there is a value on the secret so that the stealing of the secret relates to property, which I much doubt, it seemed to me fair enough that section 12a (2.) should be allowed to operate and if a magistrate thought that in the circumstances it was right to try the offence, when the maximum punishment would be one year instead of two years, he should be allowed to do so.

It seemed to me that the amendment proposed by the Opposition went too far and that the proposal I made was adequate in the circumstances. The Deputy Leader of the Opposition said that attempts to commit these offences would not be caught up. It is very true that when he asked me this by interjection, I said that he may be right, being of a cautious turn of mind. However, when I had a look at the provision later I saw that what was provided was that offences against the section nominated, as provided in my first amendment, were punishable only on indictment. If honorable members turn to the attempt provisions, they will see that attempt is punishable as if the principal offence had been committed. That seems to me to make it fairly clear that attempts are caught up and will be tried only on indictment. It seemed to me that there was no need to make any separate provision.

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