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Wednesday, 13 September 1972
Page: 1315

Mr BRYANT (Wills) - The honourable member for Diamond Valley (Mr Brown) must have a different sort of perspective from the people who are looking at this matter not as a technical operation but as a direction by this Parliament and through the agencies of this Parliament to citizens of this country. His arguments were plausible enough if one starts from the premise that if the Government carries out its operations in a technically correct way it is all right by him. This, of course, would be an unkind analogy perhaps, but that may well have been the argument in the 1930s about the gas ovens and everything else. It is all done by the due process of law. The argument from this side of the House is based as much upon the principles of delegated legislation and the way this Parliament carries out its operations as it is upon any technical inadequacies in the way in which this piece of printing has been performed or in which this Parliament carries out ils duties. The court, of course, in its judgment said: lt is clear enough that section 12 authorises the making of an ordinance- 1 think this is the important point of this section: without public scrutiny or parliamentary debate, and plainly it provides that such an ordinance . . .

Reference is made to the ready availability of the ordinance. The point made on this side of the House has concerned the failure of this Parliament to perform its just duty as a parliamentary institution. There should not be laws which affect people in their fundamental rights or which can apply the processes of law. or prison sentences, or fines or some other process of punishment to them which are not carried out with public scrutiny or parliamentary debate. It is, of course, not the function of the court actually to decide whether the Parliament is performing its duties properly as a parliament. That responsibility is ours and that is what we are debating today. 1 believe that the court, in making its decision in this case, performed a great service to the country and to those people who were standing for this cause and other causes, by suddenly throwing the matter into the parliamentary arena for general debate. But people, of course, must be guided by the general usage of this Parliament itself, which has been notably dilatory, I believe, in its control of subordinate and delegated legislation and its delegation of its authority to Ministers. That is our own fault. I suppose that each one of us is guilty of it and each one of us, therefore, should turn his thoughts to ways of overcoming the difficulty. My colleagues on both sides of the House have said how difficult it is, with the great mass of governmental activity and all that flows from it. lt makes it almost impossible to study everything correctly. But in other parts of the world, in other legislatures, even in the Senate, members are able to take a much closer view of these things.

I turn to the general question of what really happened and whether this ordinance was promulgated in a proper way back in July, for instance. It is all very well to say that one can get an ordinance by post, but one cannot get it by post with the present postal system and not even with the most perfect postal system if it has been promulgated by printing press at 10.30 a.m. and the operation to enforce it takes place H to 2 miles away at 10.40 a.m. I was here on the day this incident occurred. I was sitting in one of the rooms at a meeting of the Joint Parliamentary Committee on Foreign Affairs. 1 was informed by telephone that the police were at the Aboriginal embassy. I went there but the police arrived there as quickly as I did. There was no possibility of anyone laying his hands on the ordinance, knowing what it was all about or even appealing for common sense.

That is what this was all about. Last night, if there was any difference, the circumstances were worse.

It is hard to believe that in this country at this particular time and in dealing with fellow citizens we should descend to this form of depraved executive action. I still find it unbelievable in the normal course of events. If I had thought that the Government were going to proceed in this way last night I would have waited around for a while, but I just did not believe that that was the way the honourable member for Gwydir, the Minister for the Interior (Mr Hunt), his officers and the Attorney-General (Senator Greenwood) - some of whom I have known for many years - would operate in these circumstances. That is the great disappointment and it is felt on this side of the House and, I think, also or the other side of the House and by a great number of people outside the House. The threat of government by decree hangs over our heads with increasing force and we cannot tolerate it.

It is a fundamental principle that laws shall be made by public debate, by people publicly responsible. Laws should be explained and discussed in open debate and should be capable of being amended during their passage through the legislative organs. We have a long tradition of this sort of thing. There is some sort of piquancy in this situation when we read of the Eureka Stockade incident. A major source of irritation was the objectionable way in which the licence system was administered. The piquacy lies in the fact that the name of the Governor of the day was Hotham, perhaps represented in this place by the Leader of the House (Mr Chipp) who is implementing these actions this afternoon. A report of the Eureka Stockade incident reads:

On the following day (30th November) Reds ordered a check-up of licences. The police were stoned and several shots were fired.

The same sort of melee occurred then as occurred outside Parliament House a few weeks ago. So, I will allow whatever part of my imprimatur is fixed upon this document as it passes through the House with the greatest possible reluctance. The first thing we must do is to mute government power and authority. We cannot afford to let all the bumblings of this Government go by. I suppose today's exercise is simply another product of plain, bad government. It affects all those people who depend upon this legislation and these ordinances for such things as adoptions, the ownership of land and all the other matters that go with them.

What we are debating as much as anything else are the powers of Ministers and what Ministers are. Of course, the Minister for the Interior is a member of this Parliament. His charter runs because he is a member of this Parliament. He represents the Australian people here on the same terms as the rest of us. Because he has been exalted to the Ministry does not confer upon him any tremendous wisdom. In fact, some of us think that somehow, Ministers take leave of their senses at this point. Of course, what happens is that they depart from the Parliament, go off down the corridors, shut their doors on the Parliament and become imprisoned inside their departments. Their departmental officers belong to a different set of responsibilities from those applying to members of this House. So, one of the problems that arises today and one of the questions we should be trying to answer is: How are we to get the Minister for the Interior back into this Parliament as a parliamentary officer and not as an executive officer of some mystical being called 'the government'. I do not believe there is a separate entity known as 'the government'. As I have said before and as I say again, I can think of no reason why the people in the electorate of New England should have more ability to have their aspirations carried into executive action than the people of the electorate of Wills or of any other electorate.

What are the duties of the Minister for the Interior? The Minister for the Interior has had ample opportunity to discuss this matter at great length with people who are concerned with and interested in it. I believe that while initially the Minister acted in this House in a gentle and civilised way in reply to the first question from the lately canonised right honourable member for Higgins (Mr Gorton), some of whose actions should require us to turn his portrait in Kings Hall to the wall, he should have consulted people concerned with the matter. He should have been prepared to take the Parliament into his confidence. There should have been some machinery whereby we could have sat together and decided the matter and where the people who were to be effected could have been consulted. I think this is one of the issues involved, namely, how this Parliament is to attain a closer relationship with the Ministers. I believe that is one of our important duties as a Parliament.

On the other hand, what are our own duties? The court said:

It is clear enough that this section authorises the making of an ordinance without public scrutiny or parliamentary, debate.

Obviously, when the Seat of Government (Administration) Act was first passed, the people who permitted that point to be written in were departing from their parliamentary obligations. We must set up a system to scrutinise all legislation and all executive action, no matter what it is. An administrative committee is presently examining administrative action, lt is taking a long time about it. I do not blame it because it is a very complicated area.

However, we are also here to protect people. We are not just the organs of administration of governmental power. We are the direct representatives of people who have a right to expect from us protection and almost a blanket coverage on their behalf. The other issue involved, of course, is open discussion, which is one area notably lacking in this House. Another point is the legislation itself .mci this is where 1 part company with this operation. When we examine the actual piece of legislation we are supposed to be considering today with its rather complicated titles and the misuse of the English language, which seems to be the only way in which we can draft legislation, we must try to make sure that the legislative, rather than the executive, writ runs in government and that we consider these matters with some proper machiner. From where do regulations flow? They do nol flow from inside the Parliament. It is almost impossible for us to have something thrown into the ring and finally come through as a piece of legislation. Somewhere back in the administrative machinery administrative convenience prevails and that is what decides the form of legislation. Nobody can blame the people who design it. If someone is sitting there as an administering authority, he is going to design his rules and laws in such a way that the administration will be made reasonably easy.

Therefore, I believe that this situation today is a serious reflection on the Parliament. It is a much more important operation than my friends opposite seem to think. We are forced to accept the fact that the legislation should pass through the Parliament. This document will validate all these matters. My friends opposite might say: 'That is not what we are doing. All that we are validating is the notification.' But of course, the court said yesterday: 'If it is not notified correctly, it is not a valid or operative piece of legislation'. What are we doing? We are taking hundreds of pieces of legislation - I suppose there are more than 100 ordinances on this list, but there are dozens and dozens of others - and we are validating everything that is contained in every one of them. If those pieces of legislation were to come before this Parliament again, would we approve of them? I, for one, would not.

I have collected a series of these ordinances from the Bills and Papers Office. I refer honourable members to the Police Ordinance 1966, a clause of which states:

A member of the Police Force shall not, without the written permission of the Minister or a person authorised by the Minister for the purposes of this Section -

(a)   resign from Police Force: or

(b)   cease to serve as a member of the Police Force.

Penally: Fifty pounds or imprisonment for 3 months.

I take it that the ordinances we are validating today are rich wilh these pieces of free flowing administrative power. I would not vote for that ordinance if it came before this Parliament again but this afternoon I am asked to vote for it. I wish I had the time to produce the necessary 200 or 300 amendments to exclude from these ordinances all those sections of which one would disapprove. I disapprove of the summary courts - the lower courts - having the power to send people to prison. As 1 have said before and as far as my principles are concerned, if we are to send people to prison, they should be sent there by a jury or not at all.

Another matter is the writing of this ordinance. It was not written or passed through this place. It was produced administratively. It went through the system. The Minister for the Interior put his signature on it somewhere and so did the GovernorGeneral, bless him, and it passed through the printing press. The validating instrument is not this Parliament; it is the printing press. That is only one ordinance. One only has to take a look at the Motor Traffic Ordinance. We are validating this today. This ordinance contains 147 pages and about 200 clauses. One of the clauses states:

A person who commits an offence against this Ordinance may be prosecuted summarily before the Court of Petty Sessions and the Court may, where no other penalty is expressly provided, impose a penalty not exceeding One hundred pounds or imprisonment for six months.'

There are other clauses in this ordinance to which I could refer. While I approve in a way of what might be called the stringency of the penalty, I do not like the style of production. There is a clause that can send a man to gaol for 12 months for drunken driving or impose a penalty of £500 or $500 - I am not sure exactly what it is.

We are writing legislation which carries heavy penalties upon an individual and which decides the way in which we will do all sorts of things. It is all being verified this afternoon, having passed through the system without being brought into proper public scrutiny. Therefore I believe that we should be saying to the Government this afternoon that the writ of this legislation should run, say, until the end of next year. I would like to put a time limit on it so that in the intervening 15 months or so we could get to work, examine each one of these ordinances and codify the law in the Australian Capital Territory.

That brings me to the real question of representative government in this city. Some 50 or 60 years ago we had an acorn. We planted it and it has grown into the oak of Canberra. During that time the logical administrative needs of 50 or 60 years ago when Canberra was a tiny community have suddenly become a writ for a community that is nearly half as big as the population of Tasmania and it has no representative function in the legislation. I believe that the time has long passed when we should have established for Canberra a satisfactory representative government in which these laws are passed through the ordinary representative systems of the Australian community and in which the people who have made them have to answer for them. How can a citizen of Canberra approach the Minister for the Interior? It would be carrying his duties as a citizen too far to transfer to the electorate of Gwydir and become one of his constituents so that he could take action against the Minister at the ballot box and retreat from the advantage of being represented by the honourable member for the Australian Capital Territory (Mr Enderby).

A charade is going on here in which an effort is being made to legitimise illegal acts for which penalties have been imposed upon people. All the operations of the past few weeks in particular are to be given some sanction of authority and legitimacy. We ought to be examining the whole situation of the law of the Australian Capital Territory. The Labor Party believes it is vital to do so. I saw what happened to the victims of the events of 20th July, lt was on 20th July about 28 years ago that there was an attempted assassination of Hitler. I saw the people manhandled over here. I saw them with their arms wrenched up behind their backs. I saw the indignity being foisted on them of being thrown into the police wagons. I saw the blood upon their faces. I saw them allayed. We must not perpetuate that situation this afternoon. I believe it is important that, when we come to the particular clause, the House supports the Opposition's amendment.

The acts of 20th July were invalid. They were illegal and, within the limits of the attitude of civilised communities, they were totally brutal. I believe that the time has come for us to find a new way of establishing rapport between the Government and the citizens. Somehow we must find a better way of dealing with recalcitrant citizens instead of beating them up, throwing them into prison and dragging them into court, particularly when those people are operating, as my friends over the road were operating, in a peaceful, inoffensive and symbolic way. It is a serious reflection on the whole society and particularly on this Government that, in the dealings with one of the least offensive and least violent people on this planet, we had to descend to the final brutality of assault by the Australian Capital Territory police. I regret that the Australian Capital Territory police, for whom I have a great respect and who on the whole carry out their duties as one of the most civilised sections of the constabulary in Australia, were dragged into this operation. This was a case of plain bad government, of executive government run mad. Ministers have failed to take proper cognisance of their charter as members of the Parliament and they have allowed themselves to be totally imprisoned inside their executive and administrative system. Unless this Parliament can take control of the legislation and executive acts which run with its authority, Australia will continue to go down hill. I say, and I hope it is supported by the vote of this House, that the community should no longer tolerate the kind of governmental authority that is being exercised by the people sitting opposite.

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