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Friday, 30 October 1970


Mr ENDERBY (Australian Capital Territory) - Mr Deputy Speaker, at the Committee stage I will move an amendment in the following terms:

Clause 4, page 2, at the end of sub-clause (!.) add the following proviso:

Provided that no criminal prosecution under the applied provisions of this Act shall be instituted after the date on which it receives the Royal Assent in respect of acts or omissions occurring before it receives that assent.'.

The purpose of this amendment is to avoid the retrospective enactment of criminal laws by this Parliament. Honourable members will be aware of some of the circumstances which create the necessity for the enactment of legislation such as is contained in this Bill. The need for legislation such as this arises out of what can only be described as the legal complexities of our legal system which result from the Constitution as it has been interpreted by the High Court and the provisions of the Judiciary Act, and which have produced a dual system of laws creating Federal jurisdictions over some matters and areas and State jurisdictions over other matters and areas.

To understand what has happened and the amendment to what I understand the legislation seeks to achieve, we need to bear in mind continually the division of legislative powers between the Commonwealth and Slate governments. Tn some areas, the powers overlap. In other areas, the powers do not overlap. We are fortunate at least that the problem does not affect the Commonwealth Territories. We all know that the Constitution gives power to the Commonwealth Government to make laws on the subjects which are set out in section 51 of the Constitution, and we also know that it imposes certain prohibition and restrictions on the Commonwealth Government, which have the effect of making some of the laws which it might want to pass invalid for one reason or another. Many of these prohibitions and restrictions do not apply to State laws.

Sometimes the prohibitions are not immediately apparent, and this can be said to be the case in the section of the Constitution which, as it has now been interpreted by the High Court, has produced the necessity for this legislation.

The section is 52 (1 .) of the Constitution which gives to the Commonwealth the exclusive power to make laws in respect to all places acquired by the Commonwealth for public purposes. This means, as it has now been interpreted in Worthing's case, that the States have no power to make laws that relate to such places. It means that, whereas it has always been assumed that State law applied to such Commonwealth places as military establishments, quarantine establishments, post offices, perhaps Commonwealth research establishments and Commonwealth courts as may be located in the States, the fact is that many such laws do not apply. I think that it is fair to say that the decision in Worthing's case surprised many lawyers, although the problem had been the subject of speculation and comment on and off for years. As a problem, it bad never come before the High Court before.

Briefly, the facts of Worthing's case were that a Mr Worthing, who has now made legal history, was injured when he fell from his working place which was located at the Royal Australian Air Force base at Richmond in New South Wales. He sued his employer for damages and sought to rely on the New South Wales Scaffolding and Lifts Regulations which imposed certain duties on employers to provide certain safeguards for their employees. That legislation confers important rights on injured workmen. In this case, the employers counsel argued that the regulations did not apply at the RAAF base at Richmond because it was a Commonwealth place, legislation had been been enacted by New South Wales after the base became a Commonwealth place and so it came within the scope of section 52(1.) of the Constitution.

Eventually, the case found its way to the High Court. The Court held by a majority of 4 justices to 3 justices that the regulations did not apply on the RAAF base. The reasoning behind the decision is applicable to many other kinds of State laws. The decision revealed a void in all such

Commonwealth places from the time when they had been acquired from the Commonwealth. Now, by this Bill the Commonwealth seeks to fill that void.

There are of course 2 general alternatives that could be adopted to solve the problem. The first would be for the Commonwealth to enact a comprehensive new code of Commonwealth laws that would be probably different in many ways from the laws of the States, and that would apply to these Commonwealth places. It is obvious, I think, that this alternative has been rejected by the Government and we have no quarrel about that. The other alternative was to enact legislation that adopts State laws as Commonwealth laws and this is what has been done. However, the extent of the difficulties posed by Worthing's case were not readily apparent it appears even to the judges of the High Court who decided the case.

The Chief Justice, Sir Garfield Barwick, at page 235 of his judgment as reported in the Australian Law Journal, saw no great difficulty, for he said:

No doubt the Parliament will need to legislate to fill a void which a decision in the sense of my opinion would have disclosed. But it can be done so referentially, and without delay or difficulty, merely by continuing by dint of Commonwealth law, the terms of State legislation which would be applicable if the place or places so acquired, or for that matter to be applied, had remained within the legislative jurisdiction of the State legislature.

Similarly, His Honour Mr Justice Windeyer at page 247 of his judgment as reported in the Australian Law Journal said:

However, the inconveniences and complications that arise upon this view are less serious than would be those that would come from any other of the suggested constructions of Section 52. They are less serious because they are easily remedial by the Commonwealth Parliament. It does not have to enact a complete code of laws, criminal and civil, for all Commonwealth places as a substitute for anarchy there. For there is no anarchy, merely divergences in the law applicable in different places within a State which were acquired by the Commonwealth at different times. That lack of uniformity in the operations of State law could be overcome by a short Commonwealth Act while at the same time ensuring that Commonwealth places remain within Commonwealth control. As I see it, all that is necessary to resolve all the difficulties is a Commonwealth Statute providing that the laws of each State from time to time in force, should have full force and effect in all places already acquired or acquired in the future by the Commonwealth . . .

His Honour went on to say:

Save in so far as any such State law is inconsistent with any Commonwealth law or is incompatible with the conduct by the Commonwealth of its lawful purposes carried on in any such place.

Therefore, he began to touch on the problem as it appears and as became apparent to the Parliamentary draftsmen when they began to tackle the problem.

Immediately the experienced and very capable legal officers of the Commonwealth Attorney-General's Department began looking at the problem that had to be solved, they discovered that it could not be done by a simple short Act. They discovered a situation that was almost bizarre in its complexity. If they were going to enact a Commonwealth law to convert State laws into Commonwealth laws they had to consider a number of problems. They had to consider, for example, the difficulty of State laws controlling Commonwealth instrumentalities and Commonwealth laws controlling State instrumentalities. They had to decide whether to make the legislation retrospective and, if so, how to make it retrospective. In this context - of course, my foreshadowed amendment is directed to one aspect of this point - they had to consider whether the civil law should be made retrospective and whether the criminal law should be made retrospective. They decided that they would make both civil and criminal law retrospective, lt is to this latter aspect of making retrospective criminal law that this amendment is directed and which it seeks to overcome. They had to decide what to do about State police and other State officials who administer State laws - officials like scaffolding and lift inspectors and factories and shop inspectors. These good people are employees of the State and not of the Commonwealth, and the Commonwealth has no control over them. In pursuance of their duties as State employees they are not obliged to enforce Commonwealth laws. There have been reports of State police refusing to perform what would otherwise be police duty because of the fact that some incident with which they would otherwise have been concerned had happened on Commonwealth property.

The draftsmen had to be careful that if they restated all the State laws as Commonwealth laws they did not bring about some invalidity in those State laws that flowed not from State law and not from section 52 (1.) of the Constitution but from some other provision of the Commonwealth Constitution. For example, section 55 of the Constitution requires that a Commonwealth law imposing a tax must impose the tax only and do nothing else. State laws do not have to be so limited. A general Commonwealth law applying all State laws might infringe section 55. The draftsmen also bad to be careful about section 109 of the Constitution which makes Commonwealth laws prevail over State laws where they are inconsistent with each other. The draftsmen also had to be careful about re-enacting all the State laws as Commonwealth laws because different tests apply to determine appeals to the High Court and to the Privy Council when the appeals arise out of State law from when they arise out of Commonwealth law. We know that the Commonwealth position on appeals to the Privy Council is different from the position of the States. It was thought proper, and we agree with it, that insofar as it was possible, the position should be restored to as near as possible to what it was before Worthing's case was decided. There should be no addition to the differences and divergencies that already exist between various parts of Australia.

The draftsmen had to be careful that in giving Commonwealth judicial power to State courts and tribunals they complied with section 77 of the Constitution, because many State tribunals are not constituted in such a way that they can exercise the judicial power of the Commonwealth. There were many other problems, and the draftsmen have done their best to anticipate them and legislate to overcome them. Only time will tell whether they have succeeded and the extent to which they have succeeded.

I come back to the retrospective enactment of criminal law as a problem, because that is a feature of the Bill and that is the purpose of the amendment to be directed at it. The Opposition believes that criminal law should only be enacted retrospectively in the most serious cases - and this is a general proposition with which few people would disagree - and to overcome some particularly acute problem that cannot be overcome in any other way. We believe that if there is no criminal law on a subject it is one thing to enact a law that makes behaviour criminal in the future but quite another thing to enact a law that says that what was not criminal in the past shall be regarded as always having been criminal. This is a fundamental and very important principle. We know of no cases that would be prejudiced or no hardship that would take place through following the normal course and enacting criminal law as from the time of the commencement of the Act. Since Worthing's case it is true that a number of cases have come before the courts where defendants have pleaded the defence that is based upon the reasoning in Worthing's case. This is not uncommon because defences of this sort become fashionable once it becomes known to lawyers the success that can attach to them. We believe that these defendants should be entitled to rely on the law as it has been declared by the High Court until it is changed by this Parliament. We do not believe that this Parliament should take away any of those defences by changing the law retrospectively. Clearly some cases are stronger than others but if this Act is made retrospective as far as the criminal law is concerned the defendants in such cases will be liable tobe charged again, notwithstanding that they have already been charged, tried and possibly acquitted. This is double jeopardy, which should always be avoided. We believe that it is not good enough to rely on the discretion of public servants, who are in some prosecuting section somewhere, not to charge again a man who has already been charged once because of some feeling that they may or may not have as to whether he has been sufficiently prejudiced or whether they consider the case serious enough or not serious enough to warrant a second prosecution. We believe that such matters are too important to be left to the discretion of prosecuting officers in State courts of petty sessions and other State prosecuting officers.

The amendment, if it is carried, will be in the best traditions of the English law. We believe that if a person has a good legal defence, because the High Court has said so, he should not have it taken away from him retrospectively unless there are extremely compelling reasons, and we do not believe that sufficient reasons exist in this case.

Question resolved in the affirmative.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.

Debate interrupted.







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