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Wednesday, 28 April 1971

Senator James McClelland (NEW SOUTH WALES) - The Australian Labor Party opposes this Bill because it is hypocritical, unnecessary and dangerously vague in many of its terms. It is hypocritical because it was. introduced into this chamber as a libertarian measure designed, in the words of the Minister for Works (Senator Wright) to mitigate the severity of existing laws and to draw a clear, and sensible line between freedom and order, whereas its true purpose is to impose additional restrictions on the right to dissent and at the same time to give the Government yet another opportunity to ham its favourite role of defender of the citizenry against the forces of anarchy. The Government cannot sell this Bill by pointing to its superiority over archaic statutory and common law penalties for riot, rout and unlawful assembly Certainly these archaic laws are long overdue to. be scrapped and the last clause of this Bill, clause 25, is to be applauded for doing just that. But this provides no justification for the introduction of new offences and new penalties into a field already cluttered with restrictions on human freedom.

The Bill fails lamentably to achieve the synthesis of freedom and order which the Minister claimed for it. This is no easy task, but I believe that the Government's obsession with order has outweighed completely its concern for freedom. The Minister and all Government supporters in the other place who spoke, on this Bill have genuflected piously before the citizen's right to dissent and to express that dissent, by the process of peaceful assembly. But if the Government sincerely held this view it would have directed its attention to one of the most glaring gaps in our legal structure - namely, the absence of any constitutional guarantee of the right of freedom of speech of peaceful assembly. This gap has been referred to already by Senator Wheeldon who cited the American Bill of Rights as an example df a positive' charter for dissenters. It. is always assumed that we have these rights, but the fact is that there is no law and ho constitutional guarantee that we have a right of freedom of speech and a peaceful assembly. An eminent judge of the Supreme- Court of New South Wales, Mr Justice Hope, has put this matter in its true light. His Honor has written:

When one looks at the law iri Australia in relation to the right of public assembly, and I have taken- the law in New South Wales - as a sample because it is best known to me, it seems to be, in. form, restrictive to an intolerable degree. What should be a right turns out to be entirely dependent upon the uncontrolled and unreviewable discretion of some official or other, the exercise of the discretion often being based on a selection of causes as being good or bad.

Mr JusticeHope also referred to numerous statutory provisions and regulations which fetter or restrict the right in a ' variety of ways. Obstruction, of traffic, vehicular of pedestrian, is prohibited by a great number of statutes and regulations. It is almost inevitable that public meetings or demonstrations will cause such obstruction and, when they do, no matter what the purpose of the meeting or demonstration and no matter how the demonstrators conduct themselves, this in itself constitutes an offence and the participants may be arrested by the police.. Surely nobody in this chamber sincerely doubts that the police use this power selectively. We do not hear of people being arrested for blocking the streets during a visit by the Pope or the Queen or while disporting themselves at some of our regional mardi gras such as the Moomba festival or the Waratah festival, while the drunken excesses of Anzac Day are evidently sanctified by patriotism: But it is quite different when the public demonstration is disapproved of by the police, goaded on by their own prejudices or inflamed by the media or sooled on by some politician who is looking for an electoral law and order issue, such as Mr Askin was doing at the time of the last Moratorium demonstration.

The law as it exists already, without any additional enactments by this Parliament, is heavily weighted against demonstrators. I suspect that many members of the Government parties believe that this is as it should be. If they do believe in the right to dissent, they believe it should be exercised in a tame, discreet and almost invisible way which ignores the very meaning of the word 'demonstration', the purpose pf which is to draw the attention of as many people as possible to the viewpoint of the demonstrators. I am confirmed in this view of the way honourable senators opposite regard the - right to demonstrate by a remark that was made by one of the speakers of the Government in the other place when he pointed, as an example of an acceptable demonstration, to the Quakers who sometimes demonstrate outside this House. Surely this merely proves my point because I would make bold to claim that not many members of Parliament, let alone the public at large, even know that the Quakers are there.

I find it ironical that so many people who deplore apathy are appalled by commitment. The fact that people, especially the young, feel strongly enough about public issues to want to proclaim their opinions publicly in the streets is something which should be applauded by those who care for the health of democracy, not whittled down further as is proposed by this Bill. To seek to make the lot of the demonstrator more difficult and to call that exercise 'striking a balance between freedom and order', as the Minister put it, is in my view hypocritical in the ' extreme. This Bill reflects all the distaste which is felt by the old, the smug and the cynical for the young, the idealistic and the non-conformist. A true synthesis of law and order would require that the emphasis in this Bill should be the other way; that is, in the direction of spelling out specific rights of dissent and public assembly.

It is interesting to note, Mr Acting Deputy President, that when the Common wealth Crimes Act was first framed some 37 years ago an attempt was made to spell out, admittedly in too vague and unspecific a way, the citizen's right to dissent. Tha original Act was passed in 1914, when, as honourable senators will recall, this country was in a state of war. Section 24a (2.) of that Act contained these words: .

It shall be lawful for any person -

(a)   to endeavour in good faith to show that the Sovereign has been mistaken in any ot his counsels;

(b)   to point out in good faith errors or defects in the Government or Constitution of tha United Kingdom or of any of the King's Dominions or of the Commonwealth as by law established, or in legislation, or in tha administration of justice, with a view to the reformation of such errors or defects;

(c)   to excite in good faith His Majesty's sub*jects to attempt to procure by lawful means the alteration of any matter in th» Commonwealth as by law established; or

(d)   to point out in good faith in order to their removal any matters which are producingor have a tendency to produce feelings of ill-will and hostility between different classes of His M Majesty's subjects.

It should be clear that we have gone backwards since then because when the Crimes Act .was amended in 1960 the section I just read was omitted from the Act and was replaced by the present section 24p which, in place of the permissive words 'itshall be lawful for any person' to do tha things I enumerated, contains the exclusive words 'Nothing in the preceding provisions of this Part makes it unlawful for a person' to do much the same sort of things.

This is not a mere technical distinction.' The Act, as originally framed, spelt out positive rights, not adequately, not as wa would like them spelt out, but at least in a' way which indicates that the legislature of 1914, when this country was in a state of war, had a more libertarian approach to civil rights than this Government had in 1960, when the Act was amended, when we were in a state of peace, or has in 1971 when we are still, technically at least, not at war. I would remind honourable senators that we are not formally, technically at war in Vietnam. The Act as it stands at present merely states that certain actions are not crimes merely because of certain preceding provisions in the Crimes Act. But in the absence of positive safeguards of liberty, this does not prevent the Parliament from making these actions crimes in a subsequent provision in the Crimes Act or in another Act, such as the one for which we now have a Bill before us. In the light of this history it can hardly be claimed that freedom in this country is marching forward with giant strides.

It should not be beyond the wit of man to . frame laws stating positively the rights pf freedom of expression. His Honor, Mr Justice Hope, who I quoted previously, suggested, for example, that there should be a positive right to distribute leaflets and a positive right of public assembly, with the onus placed on the police to . justify in a court of law any prohibition or limitation of this right. I repeat: It is a nice exercise in hypocrisy for the Minister to claim that this Bill draws a clear and sensible line between freedom and order. It leaves freedom in its present legal straitjacket in fact it has tightened it up a little; it -will not strengthen order because bad legislation does not have that effect.

In addition, this Bill. is. totally unnecessary. Has the Government produced any evidence that offences against public order are going unpunished because of the inadequacy of existing laws? Let us look at the Bill a little more closely. Part II of. the. Bill is designed to deal with assemblies involving violence or the apprehension of violence in a Commonwealth territory or on Commonwealth premises. It is suggested that the existing law is silent or inadequate on these subjects? What breaches of public order have occurred in the Australian Capital Territory which the Police. Offences Ordinance or the Crimes Act have been inadequate to deal with? What offences have occurred on Commonwealth premises outside the Territory which the Crimes Act or the State laws have been unable to cope with? The previous speaker referred to the doubt which had been cast by a High Court decision early last year on the applicability of State laws to Commonwealth premises. But honourable senators will recall that this doubt was removed by the passage in this Parliament last November of the Commonwealth Places (Application of Laws) Act. The State police have more power than they need to cope with any disturbance of the peace on or in the vicinity of Commonwealth premises outside Commonwealth territory.

In his second reading speech there was only one aspect of the existing law which the Minister named specifically as being inadequate, and this also was referred to by the previous speaker. The Minister claimed that the law presently available to deal with persons taking part in sit-in demonstrations in Commonwealth premises is inadequate to control this sort of behaviour. This is simply not true. The law of trespass is available, as well as all the dragnet provisions under the State laws, covering offensive behaviour, disorderly conduct and so on, which the police know only too well how to use. There are also specific offences under the Crimes Act which could be called in aid in certain circumstances. Without going into any detail I would merely draw the attention of honourable' senators to sections 29, 30K and 89 of the Crimes Act; As far as the Australian Capital Territory is concerned, there is, of course, ample, power to deal with- sit-ins in section 24B- of the Police Offences Ordinance.

Part III of the Bill contains provisions for the protection of diplomatic and consular premises and personnel:' Let there be no doubt that the Opposition fully supports the traditional sacrosanctity of diplomatic persons and places. But here again this, Bill is totally , unnecessary. . In his second reading speech, the. Minister mentioned Australia's obligations under the Vienna Convention of 1961 , on diplomatic relations. As was pointed out by the Leader of the Opposition (Mr Whitlam) in the debate on this Bill in the other House, this Convention was ratified by this Parliament in 1967 and the text of the Convention appears in the Schedule to the Diplomatic Privileges and Immunities Act 1967. In the debate on that Bill in 1967 not one Government supporter suggested that any legislation was necessary- to ' protect diplomatic missions.

What has happened since to make the present legislation necessary? There have been attacks on diplomatic missions and consular posts in Australia and arrests have been made and charges preferred in respect of some of those, attacks. In his speech the Minister gave ito instances tending to show that the existing laws are not adequate for the protection of missions in this country. The provisions in Part III of the Bill are just' so much legal surplusage. But because they are unnecessary it does not follow that they are harmless and that we should not worry about them, for terms are smuggled into these clauses which, though quite unnecessary for the protection of diplomatic personnel, can be construed by a court in such a way as to impose intolerable burdens on Australian citizens expressing their disapproval or abhorrence of the policies of foreign governments.

I do not wish to anticipate the detailed discussion of this Bill in. the Committee stage, but i would like to. refer briefly to some of the dangerously vague terms that the Bill seeks lo. import into our laws. For' example,, clause 18 makes it an offence, to behave iri an 'insulting' way to a protected person; that is, diplomats, consuls, etc. What is insulting? Almost anything could be called insulting. For example, someone might take the view that the Soviet Union's treatment of lews is similar to the treatment meted eat by the Nazis and might give a Nazi salute, to a visiting. Soviet diplomat. Shook! such conduct place him at risk of a $230 fine or 3 months in gaol? '

One of the more far-fetched observations of the Minister is. that this' Bill provides 'objective criteria' for determining' whether an offence has been committed. In fact, the Bill is studded with terms so vague as to make its construction by a court almost a game of chance. A 'reason-, able' apprehension of violence' by a sergeant of police who may, according to his conditioning, regard any youth without a short up the back and sides' haircut as a menace to society is not my idea of an objective criterion. On last Moratorium Day in Sydney I saw police practising brutal, unprovoked aggression on peaceful demonstrators and even on people, who were not taking part in the demonstration but who merely became caught up in it. This, in fact, happened to one of my family. Doubtless the police would justify their actions on the ground that these people were creating 'unreasonable obstruction', which is a term enshrined in clause 9 of this Bill.

The word 'vicinity'- crops up. in several clauses dealing, with protected persons - that is, consuls, diplomats, etc- and pro tected premises. How far one has to be from a place or a person to be 'in the vicinity' is anybody's guess. On my reading of clause 5, if an anti-apartheid meeting were being held in Moore Park, Sydney, while the South African Consul-General was watching his countrymen play cricket at the Sydney Cricket Ground, that meeting could fall within the provisions of the Bill. There is also a curiously vague use of the term 'person' in clauses 8 and 17. . These clauses make it lawful for 'a person* to use what he believes to be reasonable force to disperse an assembly after a sergeant of police has issued a direction to disperse. Note carefully that it is 'a per«\ son', .not a law enforcement officer, who is. given this right. The members of the local, Nazi party who took it upon themselves to attempt to disperse anti-apartheid demonstrators at the Mascot Airport recently' undoubtedly would applaud these clauses' of the Bill, under which their thuggery could be legalised. I. have pointed to these vague and imprecise terms in the . Bill . to rebut the Minister's claim that the Bill clearly and sensibly', to use his words." draws the line between freedom and order. These terms are not clear, and they are therefore not sensible.

Finally, I should like to make it plain that I am not advocating that violent demonstrations should be tolerated by the community. The right that I am upholding is the right of peaceful assembly. It can be taken for granted that in a period of rapidly* changing values such as the present one there will be no shortage of public assem'blies and demonstrations which will arouse conflicting reactions and emotions in our citizens according to their moral and political positions on the issues of the day. Whether these demonstrations will be peaceful or violent will depend, above all, on the wisdom and clarity of our laws. As I have pointed out, our laws on public assembly and demonstration are already too wide and too vague. There are already too many such laws. Public order is not enhanced by creating new offences where there are already too many offences. The task of law enforcement officers - an onerous one in any circumstances - is notmade easier by importing the vague terminology which I have instanced. - I believe that the real threat to law and order comes from intolerant over-reaction by traditionalists and defenders of the status quo rather than from dissenters, even wrong-headed dissenters, who wish to speed up the process of change. Tolerant laws, including positive statements of the right of peaceful assembly protected by the law, in my view will do more to prevent violence than will Bills such as the one we are considering. Even the Minister and the previous speaker, Senator Hannan, conceded that matters had not got out of hand and that there was no need for the enactment of repressive measures. This admission surely prompts the question: Why do we need this Bill? The clear answer is that we do not need it at all. It should be rejected by the Senate.

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