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Tuesday, 22 November 1960

Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) . - I enter this debate to say something about this objectionable feature of the bill which entitles the Crown to obtain a conviction by introducing as evidence a person's known character as proved. I think the crucial question regarding this newly created offence of sabotage is that of purpose because proposed new section 24ab begins -

In this section - " act of sabotage " means the destruction, damage or impairment, for a purpose prejudicial, or intended to be prejudicial, to the safety or defence of the Commonwealth, . . .

It does not necessarily have to be in wartime. I wish to quote some extracts from a legal opinion that has been prepared by no less an authority than Mr. S. H. Cohen, one of the leading barristers in Melbourne, on the question of known character. No one who knows Mr. Cohen will suggest that he is a man of second-rate mind or secondrate legal knowledge. He is a man of repute, and is recognized everywhere as a man of great legal knowledge and eminence as a barrister. Mr. Cohen has stated in this connexion -

A certain act may be accidental or it may equally be capable of being considered deliberate. The section sets out to make it easy for the prosecution to prove the offence of sabotage by facilitating proof of " purpose prejudicial ". It introduces, by sub-section (3.) - as well as in the new sections 7 (2) (a) and 79 (7), an evidentiary provision which is repugnant to all accepted forms of criminal justice, and which is dangerous to civil liberty and entirely unjustified even in time of the gravest national emergency.

Mr Snedden - Tell us about Mr. Cohen's membership of the Australian Labour Party.

Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - He will be a senator from Victoria in the next Parliament and he will be a Labour senator. Mr. Cohen has pointed out also -

A similar provision exists in other criminal legislation, e.g. section 72(9) of the Victorian Police Offences Act, 1928, which deals with "rogues and vagabonds " and " known thieves " or cheats. In the Victorian section, however, the requirements of the section are cumulative, not alternative. Thus, " he may be convicted if from the circumstances of the case and from his known character as proved to the Court it appears that his intention was to commit a felony or misdemeanour ".

But compare the provisions of the Victorian act with the bill we are now considering. Proposed sub-section (3.) of proposed new section 24ab states -

On a prosecution under this section, it is nol necessary to show that the accused person was guilty of a particular act tending to show a purpose prejudicial, or intended to be prejudicial, to the safety or defence of the Commonwealth and, notwithstanding that such an act is not proved against him, he may be convicted if, from the circumstances of the case, from' his conduct or from his known character as proved, it appears that his purpose was a purpose prejudicial, or a purpose intended to be prejudicial, as the case requires, to the safety or defence of the Commonwealth.

It is true that the Government proposes to strike out the words " prejudicial " and will make it necessary to prove that the purpose of the act was intended to be prejudicial; and although that is important and follows the very amendment we as an Opposition have also moved, it still leaves the fundamental Objection of the Opposition untouched. I think it is important to remember that the only types of offences in respect of which it has been thought permissible in the past to depart from the accepted rule of excluding evidence of character, except when raised by the accused himself, are those offences in which the offence itself requires proof of character of the accused. That is why under section 72 (9) of the Victorian Police Offences Act it is an offence for a known thief or a known cheat to loiter in certain places at night without lawful excuse. The court in that case is entitled to draw an inference that a known thief loitering in an unauthorized place at night has a felonious intention. This is what Mr. Cohen has to say on this point -

Tt is clear enough what meaning is to be attributed to the words " known character " in that sub-section. But what meaning is to be given to the expression " known character " in these new provisions in this bill? Since the offences created are of the " politico-security type, and since the " security " danger to Australia comes from Communist countries abroad and "Communists" at home, the only intelligible meaning to give to the expression in the context of this Bill is that it means " political associations and proclivities ". So that, where a worker in a factory does some act which impairs the working of a machine, and the circumstances are equally consistent with the act being accidental or deliberate evidence may be given to show that he is or had been a Communist, or had expressed pro-communist views at some time past or present, or had attended a " Peace Conference " at which some Australian or " Western " policies had been attacked, or had protested against " apartheid" or had otherwise been associated with some humanitarian or antiGovernment or "leftist" cause. It is quite plain that the Bill contemplates that these matters of " known character " will weigh against the accused. The section expressly permits the introduction of evidence which would otherwise be strictly excluded, the purpose of evidence being to facilitate proof of guilt where no overt act showing a criminal purpose is proved against the accused.

Do not forget that it is provided that, even notwithstanding the fact that no act is proved against a person, he can still be convicted if it is felt on his known character that he might have had an intention of doing something prejudicial. Mr. Cohen has stated -

It is important to remember that these crimes of " treason ", " treachery ", " sabotage " and " espionage " are crimes with respect to which public feeling often runs high, not only in wartime but also in the atmosphere, highly charged at times, of the cold war.

The Deputy Leader of the Opposition made an excellent point when he said the accused would not be tried by the judge presiding at the trial, but by the jurymen sitting on the trial whose own views might well be coloured by what they have read in the newspapers concerning the offence - things that have been read in an atmosphere generated as a result of some hysteria such as we witnessed in connexion with the Communist Party Dissolution Bill in 1951. Then we had the spectacle of the Prime Minister (Mr. Menzies) coming into this Parliament and giving his memorable oration on communism when introducing the Communist Party Dissolution Bill. The right honorable gentleman, who has just entered the chamber, will remember that he had the whole of the gallery lined up with pressmen with flashlights. Every few seconds a bulb was exploded by somebody taking a photograph of the Prime Minister. The Prime Minister electrified the atmosphere. It did not seem to be a parliament. It was more like a scene from " Alice in Wonderland " or a meeting at the Olympic Pool in Melbourne. This atmosphere was brought about by the eloquence and stage-play of the Prime Minister.

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