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Thursday, 14 September 1972
Page: 877

Senator MURPHY (New South WalesLeader of the Opposition) - The proposition that Senator Byrne has just put to the Senate is extraordinary. Senator Byrne has considerable legal knowledge and I think it needs only slight prompting to make him recall the many cases in which the courts have upheld the right of a person who has been convicted or pleaded guilty to have a conviction set aside because he had been convicted whether after trial or upon plea of an offence not known to law. There is no doubt about it.

Senator Byrne - But this is an offence known to law. It has not been proclaimed. That is the difference you will not acknowledge.

Senator MURPHY - There is not the slightest doubt that there are people throughout Australia in gaol today who have been dealt with under ordinances and regulations which had not come into effect, and in the eyes of the law those people are innocent. The Attorney-General (Senator Greenwood) ought to be using all of his resources to get those people out of gaol because they are innocent. If we pass this Bill tonight they will be made guilty retrospectively. That is the evil of this Bill. Senator Byrne does not seem to be able to understand it. All we get from him is casuistry. He knows that that is the truth and he has to find some rationalisation to explain the fact that the Senate is being asked to pass a law to make innocent people guilty. Otherwise we do not need this Bill. What do honourable senators think they are doing with this Bill turning innocent people into guilty people retrospectively? That is the whole purpose of it.

Senator JAMES McCLELLAND (NEW SOUTH WALES) - If there was a law the Government would not be introducing this Bill.

Senator MURPHY - If there was a law there would be no need for this Bill. The fact is that people are innocent. This is one of the worst things that has been done by a parliament. What was done about Commonwealth places after the Worthing case which was equally bad? It was dreadful. Some man was up on a charge of rape and there were a few other cases of trespass and so on. This Parliament broke the great principle in order to make sure that half a dozen people were convicted. Now the Parliament is being asked to extend the principle. It does not require much understanding of the parliamentary processes to know that in a few years time under some other government someone will do the same thing. The Government of the day will look back and say: 'We have done this several times before. We did it in relation to a few hundred people. There are demonstrators outside and there are people who have been convicted of breaches of the National Service Regulation'. It does not matter tuppence if a few hundred people go free. That is what is at stake in this case. No amount of covering up will hide the fact that retrospectively the Senate is being asked to make guilty what was innocent.

The Government bungled but that is beside the point. For whatever reason, no law was made. It is exactly the same as a statute which came into operation when proclaimed but which had not been proclaimed. The Government is sitting back and saying: 'Retrospectively we will make it law and turn into criminality that which was not,'

We do not have a great deal of time left to us and Senator James McClelland has a proposition to put. There are several other alternative propositions. I have endeavoured to draft an amendment which covers the position. I am not able to assure the Senate exactly what the effect of it is. We have not been told by the AttorneyGeneral exactly which regulations and ordinances are affected in this global Bill which we are being asked to pass. I do not know the full extent of the matter but I have been trying to do my best. I asked for and received the services of a parliamentary draftsman and this amendment is my responsibility, not his. However I am grateful for his services.

I have endeavoured to draft an amendment which would carry out what I think should be an appropriate approach, namely, that the principle against retroactive criminal law should be followed. That would mean that those still undergoing penalty, in effect, would be relieved from their penalty on proper application, and that those who have not been convicted would not be liable to conviction. Now that the regulations and ordinances have been properly notified they would operate against any other person. The benefit of the great principle would endure. It may mean that in the eyes of the Government and maybe in the eyes of the Opposition some people who have done what we all might think was the wrong thing would go free. This should not deter us because it has happened many times in history. Indeed, a book issued by the Quakers entitled 'The Struggle for Justice' points out that the number of people convicted and dealt with under the criminal law is a minute fraction only of those who commit offences.

It should not concern us unduly that a comparatively few people might escape what others might think are their just deserts. We on this side of the chamber may have no sympathy at all for many of those people. It is far more important that the great principle be upheld. The United States of America has not fallen to pieces as a result of great judicial decisions. Many tens of thousands of people have escaped the consequences of what actually were crimes - not non-crimes as in this case - by reason of decisions on evidence or procedures. Here the case is very much greater because the people concerned in fact committed no wrong. We should not be turning what was lawful, although perhaps not desirable, into criminal conduct. I move:

After sub-clause (2.), insert the following subclauses: - (2A.) Nothing in this Act renders a person liable to be prosecuted for, or convicted of, an offence where he would not be liable to be prosecuted for, or convicted of, that offence if this Act had not been enacted. (2B.) Where a person was convicted before the commencement of this Act for an offence under a law that was inoperative at the same time of the act or omission in respect of which he was charged but which is, by virtue of this Act, to be deemed to have been operative at that time, that person is not liable, after the commencement of this Act, lo stiffer, or to continue to suffer, any imprisonment, or to pay any pecuniary penalty, as a result of the conviction, and any such person who is suffering any such imprisonment shall be released. (2C.) A person is not entitled to bring any criminal or civil proceeding to recover a pecuniary penalty paid, or to recover damages in respect of a period of imprisonment served, by the person before the commencement of this Act as a result of a conviction referred to in the last preceding sub-section. (2D.) A person shall not be required to enter into a recognizance after the commencement of this Act as a result of a conviction referred to in sub-section (2B.) of this section and any recognizance entered into before the commencement of this Act by a person as a result of such a conviction is, by force of this sub-section, discharged.'.

We have not. bad much time to prepare our amendment, in the same way as the Government has rushed through the legislation without, we think, proper regard to the rights of persons who would be affected retrospectively in the criminal area. Wc have done the best that we could. I submit the amendment for the consideration of thi Committee. If carried it would, as I conceive it, be the kind of way in which the Congress of the United States would deal with such a situation. No ex post facto criminal law would be enacted. However despicable and however unmeritorious on moral grounds some action might besome offences might not fall into that category - persons should not be subject to criminal penalty for an action which, at the time it was committed, was not a breach of the law

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