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Tuesday, 28 May 1968


Mr WHITLAM (Werriwa) (Leader of the Opposition) - Mr Chairman, my deputy, the honourable member for Bass (Mr Barnard), has circulated three amendments to clause 20. The first, to provide the option of a jury trial, is to be moved to sub-section (4.) of proposed section 51. The second amendment, making the same provision, is to be moved to sub-section (3.) of proposed section 51 a. The third amendment is designed to ensure that no person should be sentenced lo more than 2 years imprisonment for an offence tinder the two preceding sections. This afternoon, the Minister for Labour and National Service circulated some further amendments. One of them will provide for a new section 51d after section 51c in the clause that we are debating now. The amendment proposed by the Minister meets the objection which my Party had in mind. Accordingly, I will not move that amendment which my Deputy circulated in this respect. My Party will support the amendment which the Minister circulated this afternoon. 1 ask the Committee for leave to move together the first two amendments which my Deputy circulated providing for the option of jury trial.

The DEPUTY CHAIRMAN- There being no objection, leave is granted.


Mr WHITLAM - I move:

1.   Omit sub-section (4.) of proposed section 51, insert the following sub-section: (4.) Proceedings for an offence against this section shall be brought in a court of summary jurisdiction, which may either commit the defendant for trial or, with his consent, determine the proceedings'.

2.   Omit sub-section (3.) of proposed section 51a, insert the following sub-section: "(3.) Proceedings for an offence against this section shall be brought in a court of summary jurisdiction, which may either commit the defendant for trial or, wilh his consent, determine the proceedings'.

The Bill provides virtually an automatic sentence of 2 years imprisonment to be imposed by a magistrate. My Party has consistently taken the attitude that such sentences of imprisonment should be imposed only by a judge after conviction by a jury. I referred to this matter in my second reading speech. In particular I quoted the statements made by the Attorney-General (Mr Bowen). I notice that the Attorney-General is not in the Committee. I hope that he will participate in this debate and explain either why he supports thi;, departure from principles that he had supported hitherto or why his colleagues have overruled the advice which he has given as the senior legal officer of the Crown. 1 recall that in the debate on the Crimes Bill in 1960 my Party successfully secured trial by jury for a whole range of political or loyalty offences involving treason, treachery, sabotage, espionage, and communicating or retaining or receiving official secrets. The next occasion on which trial by jury arose for determination by the Parliament was in May of last year. My Party successfully ensured the adoption of the principle of trial by jury in relation to the Narcotic Drugs Act and the Customs Act. Last August, the Opposition successfully ensured the adoption of the principle of trial by jury in relation to the Wireless Telegraphy Act and . the Defence Forces Protection Act. 1 will quote precisely the comments made by the AttorneyGeneral on 31st August last in the debate on the last of those Bills. I had moved an amendment which he rejected. He submitted an amendment of his own and, in moving it, stated:

First of all, the amendment which has just been moved by the Leader of the Opposition would give an option of trial by jury in not only the case presently provided for - summary conviction punishable by 12 months imprisonment,, with which we would be inclined to agree - but also in the case of summary conviction where the penalty is 6 months imprisonment. The cases cited by the Leader of the Opposition in which the Government had been prepared to accept a proposal to give this option, such as the Narcotic Drugs Act, the Customs Act and the Wireless Telegraphy Act, were cases in which on summary conviction, the magistrate might have been able to impose a sentence of imprisonment for 12 months.

It is quite clear therefore that at the end of last August the Attorney-General was stating as a principle that an offence for which the penalty had to be less than 12 months imprisonment could be dealt with summarily but that an offence which attracted a penalty of 12 months or more should properly be heard by a jury, if the defendant required it. Yet under this Bill a person who breaks the national service law will be liable to a sentence of 2 years on conviction without the option of trial by jury. The sentence will be imposed by a magistrate.

Two of my learned friends referred to this question during the second reading debate on 15th May last. The Minister for Labour and National Service did not refer in his second reading speech to the fact that there would be no trial by jury for an offence which would attract an automatic penalty of 2 years imprisonment. The Minister for Immigration (Mr Snedden) stated the situation thus:

Under the provisions of this Bill a person can be sentenced to imprisonment for up to 2 years, but the magistrate has no power whatever to exercise discretion as to the period of imprisonment. lt is determined by mathematical formula - it will be 2 years or such less time as has been given by way of service in the Regular Army Supplement through national service. The magistrate has only the judicial function to convict or to acquit. If he convicts, the penalty follows by force of statute.

Then, to justify this condign procedure, the Minister for Immigration asserted that if a single member of a jury disagreed with, for instance, conscription for Vietnam, he could frustrate a whole trial. His exact words were:

This means that if one person of the variety of which the honourable member assures us there is plenty . . . gets on the jury, he can frustrate the trial completely.

In effect he said that it is. most important that these provisions must work and accordingly, to ensure convictions, the Government denies trial by jury. The honourable member for Parkes (Mr. Hughes) also referred to this subject by saying that the Crown will have to prove three matters:

First, . . . that a notice under section 26 of the Act has been served . . . that the accused person is liable to render service . . . and that he has failed to render service. I should have thought that this would be easy of proof; but more importantly, it would bc virtually noncontroversial.

At a later stage he said:

Therefore, for the Opposition to talk in that context of the necessity for trial by jury is, with all respect, just so much rubbish ... I do not believe that if one advocates .the retention of the jury system one must advance the proposition that every criminal case, however trivial and however simple the issues may be, should be tried by jury if justice is to be done.

He said in effect that because proof is easy, because the law must work, we must abandon all our principles for administering the law. However trivial this matter may be. it attracts an automatic penalty of 2 years imprisonment, which could adversely affect the whole subsequent career of the person who is sentenced. We on this side believe that there can be no possible excuse for adopting for the first time in a Commonwealth statute the principle that a man must be convicted and imprisoned for 2 years without any option, of trial by jury. No statute of this Parliament . under which this has ever been the position has been quoted. This measure represents a major departure. Every newspaper in this, country has condemned my learned friends who have advocated these tawdry reasons for departing from principles which the House, as recently as last August, the previous May and in 1960, was asserting and reasserting.


The CHAIRMAN (Mr Lucock - Order! The honourable member's time has expired.







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