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Wednesday, 20 September 1972
Page: 1694


Mr N H Bowen (PARRAMATTA, NEW SOUTH WALES) - I want to refer to some of the remarks made by honourable members who have spoken on the estimates for the Attorney-General's Department. The honourable member for the Australian Capital Territory (Mr Enderby) spoke in favour of Australia having a Bill of Rights. The honourable member for Mcpherson (Mr Barnes) has already made some remarks about this, and I agree with him that the name is an honoured one coming from way back in English history. When we hear it mentioned we have a sense of feeling that it might be a good thing to have. I do not want to enter into a full debate on what is a very large question. As the question has been raised, I think it is worth mentioning one or two things that have to be considered by anyone who wants to put constitutional guarantees into force in this country or in another country.

When our founding fathers drafted the Constitution of this country they had before them the model of the American Constitution. The American Constitution contains constitutional guarantees. Our founding fathers had to decide whether, in drafting our Constitution, we would adopt constitutional guarantees similar to those in the Bill of Rights. They made the deliberate decision to follow the English system and not the American system. I think it needs to be shown by anyone who asserts that we should now have constitutional guarantees that they are the better system, because difficulties arise in practice with this type of guarantee. In the first place we find our right- right of free speech, right of free association or whatever it may be - suddenly converted into a legal right and we have to bring a court case to put it into force. That court case may take us to the High Court. Some countries which have adopted a Bill of Rights with constitutional guarantees have found that the number of cases in the courts endeavouring to enforce constitutional rights so guaranteed have accumulated to a point where it takes a very long time for the cases to come on. In one country it takes 12 years for a case to come on. It has 80,000 cases still to be heard. This is the sort of right which it is not worth having.

There is another factor concerning the sort of right we have. I take a particular illustration. In Brisbane a couple of years ago Customs officers made an entry into someone's house at about 9 o'clock at night searching for drugs but in circumstances in which they should not have been making the entry. There could have been a constitutional guarantee about that and that person could have brought an action to enforce a legal right. It would have taken a year or two and a lot of money and it might eventually have come on and been heard. What happened under our system? A question was directed to the Minister for Customs and Excise within 24 hours about the incident, and when it was found that the Customs people were at fault not only was the fault rectified but the Minister himself was under extreme pressure and eventually there were questions as to whether he should resign. This is a much more effective right.


Dr Klugman - It is not mutually exclusive.


Mr N H Bowen (PARRAMATTA, NEW SOUTH WALES) - Of course it is. If people have a guaranteed right the Minister only has to say: 'You have your right there. I will not interfere with that right.' People can then take action under their constitutional guarantee. This is the way in which such a system has in fact been working. It is true that some new countries have adopted a Bill of Rights. I refer particularly to those countries that do not have the same traditions and habits of thought as we have inherited. We did not create them but we inherited them, and these are the things that protect the freedom of the individual, the freedom of the Press and the freedom of association. We know what they mean. They are complex, subtle ideas and we give the remedy in the court through the writ of habeas corpus and the Minister gives effect to the remedy in the Parliament. It is the remedy that is effective. It is the habit of thought and tha understanding of these principles that are important. I suggest that those who seek to put their rights into the realm of legal guarantee should ask themselves whether they would be giving the citizens a better and higher right than they have under the current system.

There is another matter. Once we attempt to reduce an idea as subtle and as complex as the idea of freedom of the Press or freedom of speech into a few lines in a statute, we in practice find that we are subjected to the interpretation placed on that by a court and a judge. We are bound by that and we cannot remove the judge as we can remove a Minister or a member of Parliament. Once we are stuck with the interpretation of that it is there and we cannot change it. Not only that but we have subjected ourselves to an extraordinary situation. For example, under the American guarantee of the freedom of the Press and freedom of speech the person who relies on that constitutional guarantee might not be the one whom it was intended to protect. There is the instance of the pressman in America who stole property and who, when he was charged with stealing, relied as a defence on the constitutional guarantee. He said that he stole the property for publication in the Press and that therefore the Constitution protected him against prosecution for stealing.

We subject ourselves to the tyranny of words. These ideas are so subtle and complex that they are very difficult to put into a Bill of Rights. I have assisted some countries in drawing a Bill of Rights. One country was a country to which we gave independence. The honourable member for McPherson will remember this. Four pages of guarantees relating to civil rights were, written into the constitution of that country. But I think I would rather be living here under the protection of our traditions, our habits of thoughts and our rules of law than under a constitution guaranteeing those rights. Those are. only ideas that I throw forward. A full debate could be developed on them. If we value our freedoms that have been referred to we should think about whether we will necessarily increase them or improve them by writing them into the form of a constitutional guarantee.

The honourable member for Hunter (Mr James) spoke of the high cost of divorce and the question of legal aid. I would only say in relation. to his speech that we should remember that a Senate inquiry on constitutional and legal affairs is proceeding and the committee of inquiry is taking evidence on the question of family law reform. One of the matters it is looking into is this question of divorce costs. We hope to get from the report of that Senate committee some useful information on the subject to which the honourable member referred in his speech.

The honourable member for Bowman (Mr Keogh) referred to a company into which he said that a person who had written to him had put some money which he had lost. He criticised the AttorneyGeneral for not in some way having taken action in respect of this matter. I am not aware of the facts of the case to which the honourable gentleman has referred, but I offer the suggestion to him that if the company is registered under the Queensland Companies Act it would be a matter for the Queensland Attorney-General if there has been a breach of the law as distinct from just a bad investment. If it is a matter which it is thought ought to be considered by the Senate Select Committee on Securities and Exchange, there is no requirement of locus standi to bring the matter before the Committee. The honourable gentleman himself could put a case to that Committee for consideration, although it appears to be engaged now in drawing up its report rather than in taking further evidence, or indeed the person who wrote to him could bring that matter before the Secretary of the Committee. I offer that suggestion to the honourable member.

The honourable member for Grayndler (Mr Daly) has been having trouble with his car. I am not sure whether the story he related is a biography or fiction. The Australian security service is not concerned with breaches of State law, and if the gentleman to whom the honourable member spoke was an officer of the true Australian security service he was acting beyond the powers of his statute. The statute of the Australian Security Intelligence Organisation requires it to be concerned with the security of Australia, and the security of Australia is defined in the statute as referring to espionage, sabotage and subversion.

I have difficulty in relating the matter of the honourable member's car to these 3 topics.

But the honourable gentleman does raise a matter of substance in relation to reports on individuals. There are not a great many of these reports but it was a matter of concern, I know, during the period when I was Attorney-General as to whether there should not be some form of appeal where a person's rights had been affected by a report. This is a very difficult subject matter. The natural leaning of a lawyer is towards giving some right of appeal in such circumstances. There are advantages and disadvantages in the public interest either way, of which I am sure the honourable member for Grayndler will be aware. There are also cases where the source of the information presents in itself a difficulty as one perhaps would be revealing a source that one would never be able to use again in the security service if one gave evidence on it, at any rate in public. It is a serious matter and I am sure the fact that the honourable member has raised it will cause it to be considered again. Certainly, the matter will be passed to my colleague in another place.







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