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Tuesday, 17 May 1960

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - A good deal of c.iO.ion has been injected into this debate and 1 should like to bring it back to a fairly level and calm atmosphere. Let me begin by saying that I yield to no man, either inside or outside this House, as a defender of civil rights, freedom and liberty. I have spent a great deal of my life in demonstrating that fact. But when I speak of free men, I refer to free men living in a free society who have one overriding obligation - to protect that society and, particularly, its mode of Government.

Is it a denial of freedom to arrest a spy? Is it a denial of freedom to arrest a person who is guilty of sabotage? Is it a denial of freedom to arrest a person who has engaged in subversive activities? No man would say that such acts were a denial of liberty. Let me say quietly that this bill does no more than ban absolutely all types of interception except that one which is authorized in the interests of the safety of the nation.

Mr Curtin - Authorized by whom?

Sir GARFIELD BARWICK - I shall deal with that aspect in a moment. This threat to the safety of the nation is expressed in words which have been used by honorable members on both sides of the House - espionage, sabotage and subversion. There is no mystery about those words. In a moment or two I shall deal with the remarks of the honorable member for Hindmarsh (Mr. Clyde Cameron) who produced a dictionary as if he could not understand the word " subversion ". I shall inform the House what it means. If a person who is reasonably suspected of espionage is detected, what do free men do? Do they do nothing? Or do they attempt to get on his wheel - to use a colloquialism - and head him off? If a person is suspected of assisting or encouraging a spy or one engaged in subversion, do free men sit down and do nothing? Or do they endeavour to protect that which is our most precious possession - our form of Government?

It is true as the honorable member for Lang (Mr. Stewart) pointed out that this bill uses the expression - " reasonably suspected " and " likely to engage in ". But these are words of precision. If you look through the law books you will find that a person can be reasonably suspected of being in possession of stolen goods. That happens every day. No one of any level of intelligence would say that there is a denial of freedom in a statute which allows a policeman to arrest a man who he reasonably suspects of having committed a crime, or which allows a magistrate to convict a person who is reasonably suspected of being in possession of stolen goods. These are well-known expressions. If you intend to intervene at an early stage - I do not put this on my own say-so; the privy counsellors who have dealt with this matter have found expressly that it is necessary to intervene - and if that intervention is to be effective, the best point of intervention is at the point of communication, not merely to find the spy himself but to find the one who is accommodating him and making his activities possible. Every civilized democratic country in the world to-day has found it necessary to have interception of communications.

I have heard the statement made by honorable members opposite that this bill will make Australia a police state. Does anyone of intelligence believe that? Is Great Britain the home of liberty, the country which has done more for freedom than has any other country in the world, a police State? After close examination Great Britain has affirmed, not merely the desirability but the necessity for this form of interception. This bill does no more than allow us to protect ourselves. No citizen, whose phone cannot be justly thought to be an instrument of subversion, espionage or sabotage, has anything in the world to fear. It has been said that the bill is unnecessary. lt is unnecessary, says the Deputy Leader of the Opposition (Mr. Whitlam), because of a regulation in the telephone regulations which deals with some form of interception, provides for a fine of £25 and states that the department may give permission for interception. The honorable member says that, therefore, there is no need for this bill.

Let me contrast with this regulation what this bill seeks to do. The bill deals with all manner of interceptions. The telephone regulations deal only with interception by physical contact with a telephone wire; but messages come through the air, on the telephone to-day, by means of microwaves. The regulation does not deal with those. The regulation permits interception for police purposes, because the department could allow the police access, or for customs purposes, or for any purpose if the department cared to approve it. This bill forbids interception for any but one purpose and has deliberately excluded the possibility of its use for police or customs purposes until such time as somebody comes to this House and makes a case for such use.

The bill provides, by way of penalty, for the imposition of a fine of £500 or imprisonment for two years. If there is any unauthorized interception - and it is suggested that there is - then, I think that a fine of £500 or imprisonment for two years would be more likely to stop it than a fine of £25. I know that it is not easy to ascertain that there is unauthorized interception. The people who do it are clever. May I say, in parenthesis, that if there is one thing in a certain article with which I can agree, it is the statement that the honorable member for Mitchell (Mr. Wheeler) made a good contribution to this debate. The honorable member asked me whether I would say something about policing methods. Of course, it would be very foolish to tell all how we are going about it, but I can say that so far as the Post Office is concerned, at points which might be thought critical the Postmaster-General sees that there are senior people who are trustworthy. So far as interception along the way, by instruments that do not touch the wires, is concerned, we shall be endeavouring to detect it, difficult and all as it is to detect.

It is not a misstatement to say that this is a bil] to ban interception. It states quite clearly the criteria on which an authority can be given. It provides that certain things have to be proved to the satisfaction of a Minister of the Crown.

Mr Allan Fraser (EDEN-MONARO, NEW SOUTH WALES) - Proved?

Sir GARFIELD BARWICK - Yes, to his satisfaction. I want to say at this point that to attack a Minister of the Crown in this area on the ground that he is an improper person to decide such matters is truly not to understand our form of government and also to try to disrate it. We in this country govern by a system of responsible government, a system of which we are tremendously proud. We have secured administration at a high-level - this country has a high-level of administration, and the present Government has a remarkable record in that connexion - by giving to Ministers of the Crown very great discretions. If honorable members look through the statutes they will find that enormous discretions have been given to Ministers. If I brought in a bill and said that I was going to let the secretary of a department issue licences, or do something like that, somebody would say, " Oh no. The Minister must do that." Why? Because we have learned that in the ministry are to be found men of integrity and men on whom we can place great reliance. A very silly suggestion has been made that the Attorney-General is the only person whose telephone cannot be tapped. Let me say that the day that an Attorney-General of this country deals with spies, saboteurs and subversive people, the country will be finished.

I wish to deal for one moment with the suggestion of the honorable member for Hindmarsh (Mr. Clyde Cameron) that the word " subversion " means no more than " turning over ". The honorable member really wanted us to understand that if I knocked over a chair I would be guilty of subversion. How silly can you be! We all know that that is not the meaning of the word. The honorable member for Hindmarsh asked a question of the Prime Minister (Mr. Menzies) in this House in 1957 and I shall return to that question in a moment to show how the Labour Party has been pulled along at the heels of the honorable member for East Sydney (Mr. Ward). I shall give two instances in which supporters of that party have said unequivocally, as I see it, that they are in favour of just what I am doing.

The honorable member for Hindmarsh, on 21st November, 1957, asked the Prime Minister a question which I shall read. I am sorry that it is a long question, but it is not of my asking. It is as follows: -

I desire to ask the Prime Minister a question relating to the recent reports of a committee of Privy Councillors on the practice of telephone tapping in the United Kingdom and, in particular, to the conclusions and recommendations of that committee. Is the right honorable gentleman prepared to give an undertaking that, in accordance with those recommendations, telephone tapping will not be carried on in Australia except in ca:es of suspected criminal or subversive activities, and then only upon the issue of a warrant for a specified period, which warrant, at the end of the period, will have to be renewed before the tapping can continue? Will he also undertake that the name of any person, the tapping of whose telephone has been authorized, will be supplied to the Prime Minister, personally? Will he introduce legislation to make it a criminal offence for any person to tap a telephone, or to open letters in the course of their transit through the post, other than in accordance with the proceedings to which I have referred?

What a beautiful description of my bill! Just imagine the honorable member for Hindmarsh coming into this chamber and reading us a dictionary definition of the word " subversive " when, on a previous occasion, he proposed that we should have an act which excepted from the ban those who engaged in subversive activities! This Parliament passed a bill to ratify the SouthEast Asia Treaty, and the words " subversive activity " are at the very root of that legislation. The object of the SouthEast Asia Treaty Organization is to see that subversive activities do not come upon us from a certain quarter.

This bill, on the one hand, brings no threat whatever to a citizen whose telephone cannot justly be suspected of being used or likely to be used, for activities which could prejudice Australia. Do honorable members opposite think that our telephones could be used for such a purpose without our knowing in some way? It might be possible, but I doubt it. The bill, on the other hand, says to the citizen, as strongly as it can, " As long as you are not in that group which is playing with fire, to the detriment of this country, you have nothing to fear. We will do our best, in the administration of this absolute prohibition to see that there is no unauthorized telephone tapping ".

There was a suggestion made - I would like to deal with it and meet it fairly - that we might commit this function to a judge. I am surprised - perhaps because I have not been here very long - to hear a member of this House propose that we should put this particular function into the hands of a judge who, whoever he might be, would not be responsible to this House. One of the great points of our judiciary is that they are not responsible to Parliament. I would therefore like to say something about the legal possibilities of the proposition, but before doing so I would like to remind the House of what is involved. Would members take to a court, as it were, the day-to-day security information of this country? Think what that means, seeing that judges want information laid out on paper, affidavits, and so on. The judge would have to sit in camera. Do you think that would satisfy the Opposition?

Do you think that the fact that a man is a judge protects him? I want now to say something about what happened in this House on the last occasion it sat. Then we had the spectacle of the Leader of the Opposition (Mr. Calwell) pulling a judge's name through the dirt, in this House, and doing so on inaccurate information, and that was surprising enough. Let me say something about that judge: He has a magnificent record of service to this country; he had his sixteenth birthday in the mud in Flanders. He served for many years as a judge and never a word of dishonour has come upon him. He served his country as chairman of the Joint Organization and put good hard thought to seeing that the best was made of the wool which the woolgrowers of this country had left with the Joint Organization. Lastly, and for this he was maligned, he sat on an important royal commission and there did an honest job and made honest findings. I am going to quote from " Hansard " in order to illustrate this proposition - that to give a judge a job like this is to expose him to risks to which we should never expose our judiciary. A judge cannot come here and answer back. He has to remain remote. But the Opposition does not care. Its members dragged his name as low as they could, and on inaccurate information. At page 1733 of " Hansard " the Leader of the Opposition said -

It was not just an incidental happening that a certain justice of the Supreme Court of New South Wales was asked to preside over that commission. I say that deliberately.

That involves not only the Government, but also a judge; that is to say that he was a rogue. Do not let us have any misunderstanding about the allegation. The Leader of the Opposition continued -

That gentleman, Mr. Justice Owen, or Sir William Owen as he now is, said on the eve of the election that two members of the staff of the Leader of the Opposition were involved in the royal commission. If the inquiry was an honest attempt to ascertain the facts, at least the chairman of the commission might have kept quiet until the inquiry commenced.

See the suggestion there - that he was appointed to play politics, that he did so and that he did it, as the Leader of the Opposition said, on the eve of the election. But what is the record? The election took place on the 29th May, 1954. The remarks of Mr. Justice Owen, as he then was, to which the Leader of the Opposition referred, were made on the 15th July, 1954 - not on the eve of the election, but months later. But the whole sting of the remark and the slur cast on him by the Leader of the Opposition was that he made his remarks for political purposes on the eve of the election. Let me place the page of the transcript on record in " Hansard ". It is page 298, paragraph 1052, of the evidence before the Royal Commission. His Honour's words were very mild and careful. He said -

We think it is right that we should say that v/e do not find anything in this document which reflects on the Leader of the Opposition. What disturbs us is that the document quotes as sources on various matters, some of which are of a confidential nature, three members of the secretariat of the Leader of the Opposition, including in that three O'sullivan. 1 think I should make that clear. And the following day the commission received a long telegram from the then Leader of the Opposition. My point is that the remark was not on the eve of the election; but the sting of the slur cast by the Leader of the Opposition was that Mr. Justice Owen - as he then was - said it on the eve of the election. If that can be done to a judge, in what peril would we put judges if we gave them a task like this, which is not a judicial but an executive task? It is essentially a job for the Executive and, under our system of government, the Executive is distinct from the judiciary. Indeed, under the Constitution we could not give a High Court judge this function.

Mr Calwell - Why not?

SIR GARFIELD BARWICK - Because it is an executive function. We had it laid down by the High Court, in the boilermakers' case and by the Privy Council that that is something we cannot do. Does this House suggest that we should submit our federal operations to the say-so of a State judge whom we could not invest with this power either? We would have to do it by some arrangement with the State Government. Therefore, I say that to appoint a judge to this position would be very much against the interests of this country. After all, it is fundamental to our way of doing things that we have a Ministry. There is nothing strange in a Minister doing such things, although I do not relish the task. I have no desire to learn the innermost secrets in matters such as this, nor does the Prims Minister (Mr. Menzies) want to know them, because many of the answers he hai given in this House have derived from the fact that he did not want to know the detailed operations of the security service.

I want next to say that the agency which is to exercise the warrant and the right to intercept is the Australian Security Intelligence Organization; and it has been dragged in the dust no end here. In Australia it is fashionable to try to bring down our institutions, and if we carry on too long in that way we will rue it. It is high time that we tried to build up our institutions instead of trying to bring them down. I will not give any numbers for the security service, because I do not propose to disclose security information of that kind; but let me say that 92 per cent, of the senior officers of this organization were appointed by Labour. This Government has appointed only a very small fraction of the total number of seniors - and I am not speaking of the little group, but of a substantial group. I repeat that 92 per cent, of them were appointed by Labour. The honorable member for La Trobe (Mr. Jess) made a speech on which 1 would like to congratulate him and demonstrated very well that when the Labour Party set up the security service it realized the necessity for it. The wartime service had been gone for three years - it finished in 1946 - but Mr. Chifley and Dr. Evatt found it right and proper to institute that service. Ever since, it has been fashionable in certain quarters of the Opposition, to try constantly to run down the security service.

Let me say that to-day our security service ranks high in its activities, prestige and integrity in the world and that other nations have good cause to compliment us on the excellence of the service we have. It is very interesting to hear the Labour Party opposing this bill on this occasion.

Tie Deputy Leader of the Opposition went on record only a few months ago. That gentleman, Mr. Sanders, who goes around this House with microphones for the purpose of recording statements for broadcast on channel 7, interviewed the Deputy Leader on 14th October last. There was a discussion about telephone tapping, and the point made by the Deputy Leader of the Opposition was that the important thing is not to stop telephone tapping but to know the principles on which it is allowed, and by whose authority it is allowed. He said, " It is most important that we know on what principles and by whose authority telephones are tapped ". Later he said, " We do not say that it could never be justified, but we must know the principles that are applied and by whose authority. The Prime Minister says that for two years the Government has been considering legislation and that this should be ready before the end of the year ". Later on he said, " The British are open and regular about this matter and we should follow suit ". This is from the Deputy Leader of the Opposition, ami I have already told the House what the honorable member for Hindmarsh said!

Let us consider what has been the major battle about this legislation. As far as I can see - and let us face this - the whole burden of the speech of the honorable member for East Sydney (Mr. Ward), when analysed to its essence, was that it is wrong that members of this House or of any Parliament should have their telephones tapped. The proposition he put was this - and 1 ask honorable members to follow me: He said that if you can justly suspect a member of using his telephone or allowing it to be used - and it is probably one provided by the Commonwealth - for, or to assist, activities to the prejudice of the Commonwealth, or even when you are sure of these things, you must still let that member go scot free. That is the proposition, because this measure will not allow tapping until such a case is made out. But even in those circumstances, says the honorable member for East Sydney, we must let that member's telephone be the honey pot around which the subverters, the saboteurs and the spies gather because they will know that that phone is clear. Does the Labour Party really stand for that? Is that the proposi tion that is really being put? Of course in this instance honorable members opposite have been trailed along at the heels of the honorable member for East Sydney.

When I opened this debate with my second-reading speech I said that Mr. Chifley had authorized telephone tapping in 1949, in July of that year, to be precise. I hear an honorable member opposite using the term " Fascist ". I supposed, in my innocence, that I would hear that sort of remark - " This is a Fascist measure ". It is evidently nothing to the point that Great Britain does this kind of thing, and that other countries do so. It is Fascist! Well, I suppose that is the kind of remark we could expect. But let me remind honorable members opposite that their great Prime Minister, who we all admit, however much we may have disagreed with him, had Australia written large on his heart, authorized telephone tapping.

Mr Ward - Where is your evidence?

Sir GARFIELD BARWICK - Listen to the honorable member for East Sydney - " Where is your evidence? " I do not propose to lay on any table the secret documents of the security service, and I have conducted this debate on that basis.

Opposition members. - Ah!

Sir GARFIELD BARWICK - Wait until I am finished, and you will not " Ah! " so much. I have seen the documents and the records. I know how many phones were tapped on the authorization of Mr. Chifley, and whose they were. I know how long the practice continued, and, by investigation, I know whom he instructed and when.

Mr Curtin - How do we know you are telling the truth?

Sir GARFIELD BARWICK - The honorable member for Kingsford-Smith does not believe me. Well, that is somewhat of a compliment. I am not accustomed to being disbelieved, and I say, with all the responsibility that should be accepted when making such a statement, that Mr. Chifley did authorize telephone tapping.

Mr Calwell - In writing?


Leader of the Opposition does not believe me, and if he cares to come to me later, I shall give him the name of a person, who is outside the security service now, to whom he can go, and who can recount Mr. Chifley's conversation.

Mr Calwell - Will you show me the file?

Sir GARFIELD BARWICK - I will not produce any document. I am not going to show the security file. If you come to me later I will give you the evidence you want. If you do not want to come and see me and get the proof that I offer - because you can go to somebody whose word you could not deny-

Mr Calwell - Will you show me the document?

Sir GARFIELD BARWICK - I am not going to produce security documents to you in any circumstances.

Mr Calwell - Well, you can keep your information to yourself.

Sir GARFIELD BARWICK - Very well, and you can go on disbelieving me. Of course, it is very interesting to see what the proposition of honorable members opposite is. The honorable member for East Sydney, who was a Minister in the late Mr. Chifley's Government, says, " I was not told, and therefore it did not happen ". Well, as I say, Mr. Chifley was a person who had Australia written on his heart. Do you and I find it strange that he did not take the honorable member for East Sydney into his confidence? If the honorable member for East Sydney was not told, what is the right conclusion? Is it that Mr. Menzies, who made a similar statement to mine last September, and I are liars, or that Mr. Chifley was a wise man? What is the conclusion you draw?

It is very interesting to note that in this debate the man whom Mr. Chifley would not trust led for the Labour Party, and at his heels he drags along the Deputy Leader of the Opposition, who has talked about everything but the bill, and the Leader of the Opposition, whose main activity has been to besmirch the name of a very honorable judge. It is very interesting to see how different from the Chifley Labour Party is the Labour Party of to-day.

I have already, I regret to say, taken far too long.

Mr Calwell - Hear, hear!

Sir GARFIELD BARWICK - 1 know the Leader of the Opposition would be glad if I kept quiet. But I want to say this in conclusion: This bill represents an honest attempt to ban unauthorized telephone tapping, under pain of a very heavy penalty. It is an honest attempt to lay out, as the honorable member for Hindmarsh and the Deputy Leader of the Opposition wanted done, the precise criteria upon which it may be allowed. It gives the control of this practice to a Minister of the Crown,

Mr Allan Fraser (EDEN-MONARO, NEW SOUTH WALES) - Who is not responsible to Parliament.

Sir GARFIELD BARWICK - Of course I am responsible to Parliament. On top of that, it prevents disclosure - which the present law does not - of any information except in the course of very narrow duties.

Mr Whitlam - The Minister can give the information to any one.

Sir GARFIELD BARWICK - In the course of his duties, yes. I concluded my second-reading speech by saying this, and I would like to say it again: I do not think the Australian public who understand this measure will for one moment deny the power to try to protect Australian security from espionage, sabotage and subversion, and any man who sits in this House and says there is no risk of these things taking place has his head in the sand.

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