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Wednesday, 28 April 1971


Senator CAVANAGH (South Australia) - Firstly I add my congratulations to Senator Jim McClelland who tonight made his maiden- speech in the Parliament. I join with the previous speaker iri saying that making a maiden speech in the Parliament is a nervous experience for anyone. I think Senator^ Jim McClelland showed us tonight that he. has the qualifications to make many good contributions to debates in this Parliament. He- made an academic analysis of the" Bill which no-one has attempted to- criticise. He condemned the Bill clause by clause, showing that it is unnecessary in our community. Although every honourable senator since then has commended his speech, honourable senators on the Government side still support the Bill despite the fact that he said that it was unnecessary in our society. No-one destroyed his logic. It is obvious that honourable senators are bound by Party machines. There is no argument against his logic but Government supporters have to vote against it because numbers count, not logic.

The last speaker, Senator Davidson, tried to express a point of view but all he did was to cite newspaper editorials relating to this Bill. 1 do not know whether he claims that those editorials are greater authority than the logic we heard this evening in that maiden speech, together with the thought and training that went into it. The last speaker said that this was a Bill born of necessity. If honourable senators had listened to Senator McClelland's speech they would see that there is no necessity for the Bill because there are sufficient laws in Australia to meet any contingency that may arise should someone trespass unlawfully on someone else's property or should someone else interfere with someone else's rights and liberties.

Necessity is not the reason for introducing this Bill. It was introduced in an endeavour to preserve this Government in office. This is of course, all-important. We remember how that leader in tactics, Sir Robert Menzies, always produced a Communist spy and said that his Government should be returned to office in order to protect the Australian community. Now the Government parties are endeavouring to create in the minds of Australian citizens the fear that they will have no security unless additional legislation is passed to ensure security, and that only this Government can formulate that legislation. The whole measure cannot be applied except with the authority of the Attorney-General. He has to make the decision and give permission for prosecution to take place. Like many other Commonwealth measures, it is doubtful that this one ever will be used. It has received some precedence in the legislative programme because the Government believes it is essential for its return to create fear. Everyone has forgotten that for 7 years we have been promised new workers compensation legislation. That legislation has been on the books now for 2 sessions, but it is to be debated after this Bill which was introduced this session. The creation of fear for the purpose of the preservation of the Government is more important to the Government than is the protection of the wives and children of injured workers.

There is an old adage that he who is least governed is best governed. The best Acts of any Parliament have on all occasions been Acts of repeal. In primitive society there were very few Acts of Parliament. Governments can justify legislation only if it is for the protection of some of their citizens against an act of another section of the community. We must remember that governments are not here as dictators or authoritarian administra tions. Governments are here as governments for the people. Their duty is to promote Acts of Parliament for the protection of people, not to imprison people. That is not the purpose of Acts of Parliament. They must be for the protection of people. No Act can be justified if it does not have that as its purpose.

We have to see whether it is necessary to give some protection by means of this law. No demonstration, unlawful act or wilful act against an Act of Parliament can command the respect of people. No requirement for a police force to enforce an Act of Parliament can enforce the respect of the citizen. We need an Act with great powers, as this Bill provides, only on those occasions on which there are Acts of Parliament which large numbers of citizens disregard and say are not fair Acts. Some Acts of Parliament have been put on the statute book mistakenly and even the police will not enforce them. In my State it was unlawful to serve liquor after 6 o'clock in the evening or on Sunday. But all the returned soldiers clubs and bowling clubs served liquor then and, although the police knew it, they took no action.

An Act which normal law abiding citizens will disobey in large numbers is not an Act worthy of policing. Therefore, while the Act involved there was an Act of a representative party, it was not one that could receive the respect of normal law abiding citizens. It was a bad Act. Until quite recently the running of a lottery or raffle was illegal in my State; but everyone ran them. I would have my doubts whether they were not run by the police association and many organisations with which that association was connected. Obviously that was a bad law which people did not respect. It could not obtain the respect of citizens. Therefore it was a law that should never be enforced.

We did not ever have a demonstration to an extent that caused anyone any concern or worry until 2 things occurred in the Federal Parliament. One was the introduction of the National Service Act. I have been connected with the peace movement ail my life and had tried to organise demonstrations, without receiving much support. That was the position until the introduction of the National Service Act under which 20-year-old kids are conscripted to go and fight in Vietnam. That is a law that has no respect in the Australian community. Everyone who has a concern about the enactment of bad laws has a duty to organise demonstrations against a bad law in the Australian community.

In Australia we did not ever have a demonstration large enough to cause any concern to the authorities, even when we entered Vietnam and even during the last 2 wars, until the introduction of the National Service Act which conscripted 20-year-old kids for a war in which they believed Australia had no right to be involved. That is the cause of the demonstrations. That is the cause of the desire to introduce this legislation rather than appreciate that we have on the statute book a law which should not be there, which normal law abiding citizens including secretaries of the youth league of the Liberal Party see fit to break and which normal law abiding young lads will not uphold. It is a bad law. We do not want repressive legislation; we want the repeal of that law.

The only other factor that is causing trouble is the penal provisions of the Conciliation and Arbitration Act. The penal provisions have been in existence for some considerable time, but they did not ever cause trouble until they were enforced. The right to strike has been a fundamental right of the working man throughout history, wherever there has been an industrial system. It is a light that will not be given up. To take away from the working people of Australia a fundamental right or birthright - namely, the right to give or to withhold one's labour, which distinguishes the free man from the slave - is asking for demonstrations. The trouble cannot be cured by repressive legislation. When there is a bad law or a law against which normal law abiding citizens revolt, all the known repressive legislation in the world will not stop that revolt. Hundreds of citizens may be imprisoned - of course, there are limits to the number that can be imprisoned - but that will not stop the growing revolt against the bad law. On the figures supplied by the Attorney-General (Mr N. H. Bowen), we have reached the stage today where only some of those who have defied the National Service Act have been prosecuted.


Senator Young - Who dennes a bad law?


Senator CAVANAGH - That is a question that is being raised continually in this chamber. What I say - I am supported in this view by the evidence given by the South Australian Police Commissioner to the liquor inquiry in that State - is that a law which a number of normal law abiding citizens will break is a bad law. With any law, there will be someone who will break it. But that is not an indication that it is a bad law. If I say that. I have the right to drive on the right hand side of the road when the law is that I must drive on the left hand side of the road, I am looking for trouble and I would be in isolation if I drove on the right hand side. But when the opposition to a law can attract the support that the Moratorium and the opposition to the penal powers have attracted, we know that that law is not for the benefit of Australia. Therefore, although the Government seeks to penalise someone by this law, we know that the law is wrong and that the solution of the problem is the repeal of the law.

Nothing has been put forward to meet the reason why people demonstrate. Today we are entering a stage in which opposition is expressed in demonstration rather than distribution of literature. Whether you like it or not, that is the method of opposition. We have reached an era in which people go in groups for the purpose of engaging in activities. This may be because of our better communications, because of our better transport system or because young people seek a let-out for their adventurism in group activities. It is far better to have these people demonstrating in the main street of a capital city or to have them sitting in the main street of a capital city than to have them gathering in groups to engage in thuggery and pack rape. This is what we are likely to achieve if we drive them away from the supervision that is exercised on occasions such as the Moratorium demonstrations. Apparently Government supporters are trying to create this kind of situation. They are trying to disperse groups so that they will gather in the back streets, rather than appear publicly as part of a demonstration.

I feel some sorrow for Senator McManus who did not make out a case to support his views. He told us that his office was invaded but that he was not there. He said that his files were searched and there was damage to his property, after which some of those who had occupied his premises resisted arrest. I remind the Senate that the persons concerned were put on trial and were found not guilty. We are asked to have faith in our judicial system in Australia, yet tonight we are asked to accept Senator McManus's word that something happened in his office while he was not there. What he has said tonight has been hearsay. A judicial tribunal established under the laws of this country found those persons' not guilty.


Senator Sir Magnus Cormack - And put them on a bond.


Senator CAVANAGH - They were found not guilty. On the basis of this hearsay evidence we are asked to accept that these things .happened and to support the Bill. I occupy a Commonwealth Parliament office in a., building which has possibly tighter security than any other Commonwealth office in Australia. My office is in the Australian Mutual Provident Society building' which has the benefit of permanent security officers whose duty it is to protect the Australian Mutual' Provident Society. In addition we have the services of a local private security organisation.


Senator Young - The MSS


Senator CAVANAGH - Yes, and on other occasions there are members of the Australian Security Intelligence Organisation. In addition we have the services of the Commonwealth Police when the occasion arises. We have demonstrations at that building from time to time. Although we have had visits from the militant group of the Youth Council, from the Fascist group of Croatians and other organisations, the only group from which I seek protection is the Commonwealth Police. I do not seek protection from people invading my office. The reason that some honourable senators need protection from the general public is that they have not the respect of that section of the community. I repeat that the only ones from whom I do not receive respect in South Australia are the Commonwealth Police. If members of the Commonwealth Police force could be kept out of my office and the building in which it is situated it would be a service to me. It should not be necessary for anyone who wants to see me to tell a member of the

Commonwealth Police what it is that he wants to see me about.


Senator Little - That goes back a long way to the days of Chifley.


Senator CAVANAGH - I do not need the protection of Commonwealth Police whereas Senator Little does need it. This is brought about by the difference between his actions and policy and my policy. I believe in freedom and civil liberties whereas he believes in repression and restrictions. This Bill has been rushed through the House at the very time when we have established in South Australia a commission to examine, an incident that happened during the Moratorium demonstrations in South Australia. The terms of reference of the commission ask it to set down guidelines for what should be permitted by those who seek to demonstrate publicly. Apparently there is a fear of what will be contained 'in the report to Parliament by the ' commissioner, Mr Justice Bright, so this legislation is being rushed ' through the Senate tonight before the report ' of the ' commission becomes available.

As Senator . James McClelland said tonight, no guidelines are laid down in the Bill to say what .a demonstrator may do. This measure contains nothing but prohibitions. It is like the. 10.. commandments: Thou shalt not'. I remind -the Senate that Senator Hendrickson tonight made an admission that in 1920 he was engaged in an unlawful demonstration. At that time he and Senator McManus marched through the streets of Melbourne to protest against the city council by-laws .which pro:hibited the holding of a procession on St Patrick's Day. So it is not only Moratorium campaigners who demonstrate.


Senator Little - No-one is very responsible on St Patrick's Day.


Senator CAVANAGH - Some people are never very responsible. There is much more that I could say on the right to dissent. I remind the Senate that we are approaching the time when people will want to dissent, so we have a responsibility to make provision for that dissent. Dr Cairns mentioned that public protest has taken second place to commercial enterprise and business activity only because the Government is interested in business and not in legislation. Tonight Senator James McClelland gave illustrations of the difficulties that would be experienced in policing the provisions of the Bill, and also during the debate Senator Wheeldon likened this measure to a South African Act which defined 'assembly' as meaning an assembly of not fewer than 3 persons. For some purposes a gathering of 3 people may be classed as an assembly and bring those persons within the provisions of the Act. The honourable senator pointed out also that the word 'vicinity' is not defined. How far from a particular point is a place which can be classed as being in the vicinity to bring one within the provisions of the Bill?

Whether or not we agree with this legislation, it could never be justified by normal people engagedin law making. All who have served on the Regulations and Ordinances Committee and have protested against the infringement of rights of the individual and direction by the Administration must oppose this legislation. ' We find in the Bill that unreasonable obstruction is defined as meaning an act or thing done by a person that constitutes, or contributes to, an obstruction. What is meant by 'contribute'? I know that these are questions to be raised at the Committee stage, but I mention them now as an indication of the matters which will be raised at that stage and to show that it is the desire of the Government to lake away the liberty of individuals and to justify its action for election purposes by creating a fear. Clause 6 states:

Where persons taking part in an assembly that is in a Territory or is wholly or partly on Commonwealth premises . . . in a way that gives rise to a reasonable apprehension -

What is a reasonable apprehension? It continues: that the assembly will be carried on in a manner involving unlawful physical violence . . .

How does one have a reasonable apprehension of whether there will be unlawful physical violence? The Bill does not define which violence is lawful and which violence is unlawful. Clause 7 states:

A person who, in a Territory . . . causes -

(a)   actual bodily harm to another person; or

(b)   damage,to an extent exceeding Two hundred dollars, to property . . .

Why is it this arbitrary amount? if the damage amounts to only $199 a prosecu tion cannot be launched with the AttorneyGeneral's permission. The AttorneyGeneral may say: 'Bill Smith will be prosecuted; Tom Jones will not be prosecuted'. How can Senator Wright or any other honourable senator opposite who has been a member of the Regulations and Ordinances Committee and has campaigned to take matters away from ministerial control agree to a provision that the AttorneyGeneral shall decide whether a prosecution takes place? It is to be an offence to disobey a direction where a direction is given and an assembly I remind honourable senators that an assembly may be 3 people-


Senator Young - Not less than 12 people.


Senator CAVANAGH - It is an offence where a direction is given and an assembly of not less than 12 persons continues after the expiration of 15 minutes from the time of the direction. They can make hay for 15 minutes. They can do what they like and it does not become an offence for 15 minutes. That is an absurdity in this clause.


Senator Wright - Nonsense.


Senator CAVANAGH - It is an offence only if the assembly has not dispersed after 15 minutes. Clause 11 relates to a person who, without reasonable cause, trespasses on premises in a Territory. He shall be guilty of an offence punishable on conviction by a fine not exceeding $100. The meaning of 'Premises' is defined as any land, building or part of a building. The purpose of that definition is to overcome the difficulty of the previous AttorneyGeneral who found that for legal purposes his home did not constitute premises as the area involved was not an enclosed building. For the purposes of this legislation, subject to the wish of the Attorney General, this clause can be applied to people in an open paddock. We will need a lot more cricket bats in the near future. The purpose of this clause is to cover cricket bat protection.


Senator Cant - We will need a lot more television cameras, too.


Senator CAVANAGH - We will want many more television cameras because we are to enlarge the area subject to the legislation. The previous AttorneyGeneral became involved in an area that was not covered by the existing legislation. This provision seeks to cover that deficiency. Clause 16 relates to diplomatic and consular premises. Where damage to property to an extent exceeding $200 is involved, it is an indictable offence, but again action is taken only with the permission- of the Attorney-General.


Senator Young - Do you not think that is right?


Senator CAVANAGH - I do not think that the honourable senator has the ability to interpret an Act. I suggest that he take the advice of a legal man on his side of the chamber on this question, rather than give an interpretation which could be shot to pieces. Clause 17 makes it lawful for a person to use such force as he believes necessary on reasonable grounds. This provision offends every principle fought for by the Regulations and Ordinances Committee. lt does not provide that it is lawful for a person to use such force as is reasonable or is based on reasonable grounds, but such force as a person believes is reasonable. It may be thought reasonable and necessary to knock somebody over the head with the butt of a gun or a baton. The victim cannot claim that the force used was unreasonable if in the mind of the arresting officer it was reasonable force. That is the criterion. Surely no parliament can pass such a provision.

My time has expired. No one should allow such legislation to pass, not even in general terms. I make a final appeal to the Government to study our Acts of Parliament. What makes people demonstrate? I suppose I have been demonstrating for the last 40 years. Most demonstrations are against injustices in our society and I believe that such demonstrations are warranted. Remove the injustices and there will be no necessity for this legislation.







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