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Thursday, 14 September 1972
Page: 880


Senator GREENWOOD (VictoriaAttorneyGeneral) - The moving of the amendment explains what we have been doing for the last 1 hour and 10 minutes, and that is filling in time until the amendment was prepared.


Senator Murphy - That is not true.


Senator GREENWOOD - It quite obviously is the truth because the amendment has only just been circulated. There was no point in talking to an amendment which could not be circulated. I do not think it is an unreasonable conclusion to draw that time was played out in order that the amendment could be prepared, and now that it has been prepared the amendment which had been circulated yesterday and which is now to be discarded does not have to come into the debate. Be that as it may - it shows that we can discount many of the things that were said in the last hour as just padding in order to build up a case - we now have what I must concede is a far more sensible proposition than the one of which we were given notice last night because the foreshadowed amendment, as Senator James McClelland now acknowledges, did have about it an element of selectivity and that is inconsistent with the proper and fair application of the rule of law.

What are we asked to do now? I think there is an enormity in what is asked - an enormity which does not take sufficient account of the situation which has occurred and of the reason for the introduction of the Bill. What occurred was that the Supreme Court said that because of a technical defect there were virtually no operative ordinances in the Australian Capital Territory. It certainly said that the Ordinance which was before it was inoperative, but the reasons given make it highly probable that most, if not all, of the ordinances enacted since 1940 are inoperative. That is the basis upon which the Government is acting. In short, one cannot be sure whether the substantial body of law of the Australian Capital Territory is or is not law. The Government has an obligation to make the position clear and to realise the community expectation that what it thinks is the law is in fact the law. Because of the technical defect, the amendment which has been moved by the Opposition seeks to do a number of things. Firstly, it seeks to provide that a person who has been convicted of an offence, and is in prison because of that conviction, under an ordinance which was inoperative, should be released. If such a provision became law how would one determine at this point of time or in 2 hours time when the legislation becomes law whether a person currently serving a sentence was or was not entitled to the benefit of that provision? If this provision were to become law and the Government did not release such a person it would be guilty of false imprisonment. The amendment states that 'any such person who is suffering any such imprisonment shall be released'. But how is the Government to know? How am I to know if I carry the responsibility, and how are the prison officers to know whether a person convicted before the commencement of this Act for an offence under a law that was inoperative at the time of the act or omission in respect of which he was charged but which is by virtue of this Act deemed to be operative at that time is not liable after the commencement of this Act to suffer or continue any imprisonment. It will create the problem of determining which persons are entitled to be released and which persons are not entitled to be released. But that is merely one of the problems which appear on the construction of this amendment.

What I think is the real vice of this amendment and the reason the Government will not accept it is that it is not a true validation. It seeks to give exoneration to some but not to all. It seeks, because of the defect, to give exoneration to those people who are currently serving a sentence of imprisonment, under a recognisance, paying a fine or liable to pay a fine, but it does nothing whatever to exonerate people who have previously served a sentence or paid a fine. I do not know how the Opposition would distinguish between them. I suppose it would say that one cannot make a provision which compensates or recompenses those who have in fact served a sentence but one certainly can do something for those who are currently serving a sentence. I appreciate that ground of distinction, but I do not think it is a valid one. lt is certainly a better ground of distinction than that which was proposed of saying that the people who were arrested in front of Parliament House will go free but no-one else. The point I mink is important is that there ought not to be these distinctions, because of the technical character of the defect which has been drawn to attention and which this legislation seeks to remedy. The whole purpose of validating legislation is, as I have said before, to ensure that what the people believed was the law was in fact the law. If people have gained rights and incurred obligations and there is some doubt as to whether those rights or obligations truly exist, it seems to me that one has to put the position beyond doubt. The amendment, of course, does not deal with the civil position in any way.


Senator Murphy - That is not correct.


Senator GREENWOOD - Is that not correct?


Senator Murphy - No. If the AttorneyGeneral looks at proposed sub-clause (2c.) he will see that it states that a person is not entitled to bring any criminal or civil proceeding to recover a pecuniary penalty paid.


Senator GREENWOOD - I appreciate what Senator Murphy has said. I had thought, looking at that, that it was with regard to penalties in the nature of penalties paid on a prosecution - a pecuniary penalty paid, to recover damages in respect of a period of imprisonment served and not what I am thinking of, namely, the ordinary civil suit in which a person may recover damages or an order under which a person may have an obligation to pay maintenance. I do not think these civil proceedings are covered by this proposed sub-clause. Am I right or wrong?


Senator Murphy - I think the AttorneyGeneral is right. We are not exempting those.


Senator GREENWOOD - I accept that. That is the assumption upon which I was proceeding. If we are to deal only with people who are in a criminal situation and not those who are in a civil situation, what is the ground of distinction? Why is the Opposition singling out some and not others? It seems to me that the whole point of this legislation is by it to restore the status quo existing before the Court delivered its judgment at 2.15 p.m. last Tuesday. That is the purpose of all such legislation. 1 suggest that the Opposition is playing a curious game of inconsistency. Maybe this is because a general election is in the offing. Maybe it is because right at the back of the Opposition's thinking is a desire to look after the people who were arrested in front of Parliament House and who were the subject of the first amendment which was moved. The Senate will recall that in 1968 a gentleman by the name of Noel Edward Taylor, who was then serving a sentence in the Goulburn Gaol, applied to the High Court of Australia for a writ of habeas corpus. He did so because, he said, there was no valid authority under Commonwealth law whereby he could be held in Goulburn gaol. The High Court agreed with him. It declared that the practice which had existed since 1911 whereby persons convicted and sentenced to terms of imprisonment in the Australian Capital Territory and transferred to the gaols of New South Wales had been ineffective. There were people then serving terms of imprisonment in New South Wales gaols who were not, therefore, lawfully there. The Government, decided that what it must do was to validate that situation and ensure that the persons who were in those gaols - at that time unlawfully - were there by virtue of a statute and therefore lawfully held there. That was validating legislation to set right a position which was wrong for a technical reason and to give effect to what the community believed. What was the attitude of the Opposition on that occasion? It agreed that it was an urgent situation which had to be speedily rectified. So it allowed the validating legislation to pass through the House of Representatives at a far greater pace than this legislation achieved yesterday. What happened in the Senate? It moved through the Senate with great speed and expedition. What did Senator Murphy say then, in contrast to what he says now? He said:

The Opposition will not oppose this measure. We realise that it is an urgent one. Perhaps not all the provisions in it are of an urgent nature, but certainly something needs to be done to ensure that those who are kept in New South Wales prisons under colour of federal law-

I emphasise the words 'under colour of Federal law'- are lawfully kept there. Therefore we do not in any way oppose this measure.

That, to me, is contrary to the principle which he has been espousing with high sounding rhetoric today. What is the reason for the difference in approach in 1968 and 1972? I have suggested 2 reasons. I may be wrong, but I think the approach which the Labor Party adopted in less impassioned days when an election was far more distant was a far more reasonable approach to adopt than its present approach. I think we all recognise that there is a need for something urgent to be done and that people who, under cover of what is given to them by the Supreme Court, regard themselves at the present time as not guilty of an offence should be put in the position which was their belief, which was the community's belief and which, 1 believe, ought to be the position, and that will be achieved by the passage of this legislation.







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