THE HON. LIONEL MURPHY QC

(1922-1986)

 

JUSTICE OF THE HIGH COURT OF AUSTRALIA 1975-1986

NSW SENATOR  1960-1975COMMONWEALTH ATTORNEY-GENERAL 1972-1975COMMONWEALTH MINISTER FOR CUSTOMS AND EXCISE 1972-1975

return to list of speeches 
 

SPEECHES

Senator Lionel Murphy QC

Attorney-General of Australia

1973

Second Reading Speech Human Rights Bill 1973 from Parliamentary Debates 21 November 1973

'Opening Address' Conference of Police Commissioners 12.3.73 Canberra.

'Address by Attorney-General of Australia' Eleventh Officers Course March 1973 Police College. Manly.

'Address in Reply to a Speech of Welcome' Alliance Francaise of Sydney. 1973

'An Australian Bill of Rights' International Commission of Jurists Australian Section 7 December Sydney







 


 

Second Reading Speech Human Rights Bill 1973 from Parliamentary Debates 21 November 1973


COMMONWEALTH OF AUSTRALIA

Speech by

SENATOR THE HON. L.K. MURPHY, Q.C.

On

HUMAN RIGHTS BILL 1973

Second Reading

(From the 'Parliamentary Debates', 21 November 1973)

The object of this Bill is to give recognition in legislation of the Australian Parliament to basic human rights and freedoms and to provide remedies for their enforcement. On 10 December 1948 the Universal Declaration of Human Rights was adopted by the United Nations. It is easy to be cynical about the failure of many members of the United Nations to ensure to their own citizens the rights embodied in the Universal Declaration. I am not one of those who believe this justified the absence in Australia of constitutional and statutory guarantees of those rights.

Australia assented to the Universal Declaration. It is commonly regarded as a country where freedom and individuality are allowed to flourish. The Australian people are commonly believed to be jealous of their freedoms and to be strongly opposed to government interference in their lives. It is said that this commitment to freedom is the best safeguard against encroachments on that freedom. It is said to be more effective in ensuring freedom than a Bill of Rights. Yet one might well ask whether this is really so, whether actual experience bears it out.

In 1966 the United Nations adopted two other great instruments defining the rights that individuals should enjoy. These are the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. One of the first acts of this Government last December was to sign those 2 covenants, and we propose to take action to ratify them by 10 December this year. It is known that other countries which have not already done so are also considering ratification. We hope that the interest in human rights engendered by the 25th anniversary of the adoption of the Universal Declaration of Human Rights will prompt these countries to ratify the covenants, and that the 2 covenants will shortly come into force.

This Government has made plain its attitude to the denial of human rights in other countries. I do not intend to recite the melancholy catalogue of what is happening elsewhere. Far better that we should turn our attention to our own situation, and examine the state of liberty in our own country. Despite our supposed commitment to freedom, we cannot be self-satisfied about what is happening in Australia. No matter what the law may provide, those who are poor, who are socially disadvantaged, are denied the basic human rights of a full and satisfying life. There are too many in our community who fall into these categories for us to be complacent about the state of liberty in Australia. The aged, the chronically ill, the migrant groups and the Aborigines do not enjoy the full measure of human rights and dignity. The programs of social security and social assistance which this Government is undertaking are fundamental to the promotion of human rights in Australia.

The main concern of the present Bill is to implement the International Covenant on Civil and Political Rights. In the case of the Covenant on Economic, Social and Cultural Rights, progressive implementation of its terms is required of a party to it. Its terms are not so apt for direct legislative enactment as those of the Covenant on Civ8l and Political Rights. There is a much more direct obligation on a party to that latter Covenant to implement its terms forthwith. It is therefore to that Covenant that we have turned our attention first in legislation.

The Covenant on Civil and Political Rights sets out a familiar catalogue of rights. I will not go through them all; they are concerned with such matters as freedom of movement, freedom of expression, the protection of individual privacy, the rights of a person charged with a criminal offence, and so on. Although we believe these rights to be basic to our democratic society, they now receive remarkably little legal protection in Australia. What protection is given by the Australian Constitution is minimal and does not touch the most significant of these rights. The common law is powerless to protect them against the written laws and regulations made by parliament, by Executive Government under delegated legislative authority, and by local government and other local authorities. The common law rights exist only in the interstices of statutory regulation.

Thus freedom of expression is what remains after one takes account of the laws relating to defamation, contempt of court, censorship, obscenity, offensive behaviour, sedition, official secrecy and the like. Freedom of assembly is restricted by the scarcity of places in which people who wish to express a particular point of view can assemble without official permission from some authority or other. The protection of the Habeas Corpus Act is whittled away by the extensive powers of arrest given to police and the powers to detain those who are thought to be mentally ill. The democratic concept that each person shall be entitled to a free and equal vote is denied by the operation of our electoral distribution laws. That a person is to be presumed innocent of a criminal offence until he is proved guilty is overshadowed by the inequities of our criminal justice system, and especially by the inadequacy of legal aid in Australia. The Press is supposed to be a guardian of our liberties. It is often muzzled by the laws that circumscribe freedom of expression or by its ownership being concentrated in the hands of vested interests.

I do not want to overstate the case. Many restrictions on individual freedom are necessary to protect the rights of others, or to prevent a crowded society from falling into chaos. But many restrictions have been imposed without sufficient care being taken to ensure they do not go further than necessary, or because the acts they regulate or forbid might provide inconvenience to those in authority. What is needed is a yardstick against which can be measured proposals to place restrictions or, as in the case of the protection of privacy, the failure to legislate and to provide the means whereby effective action may be taken in the courts to enforce rights.

Ideally, in my view, a Bill of Rights should be written into the Australian Constitution and I proposed at the Constitutional Convention in Sydney that this be done. But in the absence of a constitutionally entrenched Bill of Rights, it is proposed that those rights should be set out in legislation of this Parliament, so far as it is within the powers of the Parliament to do so. The legislation will be binding on Australian, State and local officials and on State parliaments. Only this Parliament will be able to abrogate the rights thus established and I would hope this Parliament would not lightly subtract from rights guaranteed by this legislation. Moreover, I believe that a statutory Bill of Rights will have a very great educational value. It will serve to make people more aware of their rights. By identifying rights, it will be easier to know when they are being denied.It would be futile, however, to grant these rights unless there is machinery to enforce them. The legislation will provide this machinery. First, legal remedies will be provided for infringements of rights and an aggrieved person will have recourse to the courts to enforce his rights. Second, the legislation will establish an Australian Human Rights Commissioner who will have power to investigate infringements of rights, either on his own initiative or where a complaint is made to him. The Commissioner will have also power to take legal proceedings on behalf of an aggrieved person. In establishing this machinery, Australia will be taking a lead that will put it to the forefront in the protection of human rights. The legislation will also establish an Australian Human Rights Council that will advise the Attorney-General and the Commissioner on the implementation of international instruments relating to human rights.

I now turn to a brief description of the broad framework of the Bill. The Bill is divided into 7 parts, the first dealing with preliminary matters, the second with fundamental rights and freedoms, the third with the Australian Human Rights Commissioner, the fourth with the enforcement of rights, the fifth with the Australian Human Rights Council, the sixth dealing with administrative provisions and the seventh with miscellaneous matters.

Part 1 contains provisions dealing with the commencement of the legislation and will enable the legislation to be brought into force immediately in the Territories and on Commonwealth places and in relation to a law of Australia or a Territory. Part 1 also provides, in relation to the application of the legislation, that the Act is to bind Australia and each State and is to extend to every external Territory, except Papua New Guinea. The view has been taken that, in view of the steps being taken by Papua New Guinea towards independence, it will properly be a matter for that country to make a decision on accession to the Covenant.

Part 11 of the Bill will establish in legislation of the Australian Parliament fundamental rights and freedoms in a number of extremely important areas which are not at present covered by formal legislation. A basic provision of the legislation is to provide that everyone is entitled to the fundamental rights and freedoms set out in the legislation, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Bill also provides that everyone is entitled without any discrimination to the equal protection of the law. Part 11 of the Bill then proceeds to deal with a number of important rights, including the right to freedom of thought, conscience and religion, the right to hold opinions without interference, the right to freedom of expression, the right to peaceful assembly, the right to freedom of association, the right, without unreasonable restrictions, to take part in the conduct of public affairs, vote at elections held by universal and equal suffrage and to hold public office, the right to liberty of movement, and the right to privacy. In the provisions relating to freedom of religion, expression, assembly, association and movement, the legislation provides that these rights may be restricted in certain circumstances, such as where restriction is reasonably necessary to protect public safety or public health or constitute reasonable regulations, as to time, place and manner, of the right.

The Bill also deals, in clause 15(2) with the right of women to hold public office on equal terms with men, without discrimination. The enactment of this provision will enable Australia to ratify the Convention on the Political Rights of Women which has been in force since 1954. Part 11 of the Bill goes on to provide a number of protections that are of importance in the field of the administration of justice. An important function of the legislation will be to provide protections against unreasonable search and seizure. The Bill deals with the right of a person not to be subjected to arbitrary arrest or detention and will provide that everyone arrested or detained on a criminal charge shall be entitled to trial within a reasonable time or to release. The Bill provides that anyone arrested on a criminal charge shall not be detained in custody unless the detention is reasonably necessary in the circumstances of the case. A person in custody is to be afforded adequate time and facilities to communicate with his lawyer and shall not be compelled to incriminate himself. He is to be informed of these rights. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. In the determination of a criminal charge, everyone is to be entitled to a number of guarantees, such as the right to have legal aid where the interests of justice so require and where he does not have sufficient means to pay for it, and the right not to be compelled to testify against himself or to confess guilt.

The Bill provides that a person is not to be subjected to cruel, inhuman or degrading treatment or punishment, and all persons deprived of their liberty are to be treated with humanity and with respect for the inherent dignity of the human person. The Bill will also contain provisions relating to the segregation of accused persons and juvenile offenders.

Part 111 provides that there shall be an Australian Human Rights Commissioner. It will be the function of the Commissioner to investigate an alleged infringement of the Act, either on his own initiative or where a complaint is made to him. The Commissioner will have a discretion not to investigate a matter in certain circumstances, such as where in his opinion a complaint is frivolous or not made in good faith. The Commissioner may also take action when he is of opinion that an unlawful act is about to be committed. The Commissioner is to endeavour to secure an assurance against the doing of, or the repetition of, an unlawful act and to secure a settlement and he may warn the person concerned not to do, or not to repeat, the act.Part 1V of the Bill deals with enforcement. It provides that, where the Commissioner is unable to secure a settlement, he may commence civil proceedings in the Australian Industrial Court. Where the court is satisfied that an infringement of the Act has occurred, it is to make a declaration to that effect and it may grant, as appropriate, a number of remedies including an injunction, an order cancelling a contract, orders setting aside a judgment, quashing a conviction or directing a new trial and damages in respect of the loss suffered by an aggrieved person and the loss of dignity, humiliation and injury to the feelings of an aggrieved person. Any damages to recovered are to be paid by the Commissioner to the aggrieved person. An aggrieved person may also commence proceedings for a remedy under the Act independently of the Commissioner. Part 1V also provides that proceedings are to be taken in the Superior Court of Australia when that Court is established.

An Australian Human Rights Council is established in Part V of the Bill. It will be the function of the Council to make recommendations to the Attorney-General and the Commissioner on matters relating to the observance and implementation of international instruments relating to human rights, the promotion of educational programs with respect to human rights and other related matters.

Part V1 of the Bill deals with the administrative provisions and provides for the appointment of an Australian Human Rights Commissioner and his staff. The Commissioner is to be a corporation sole. As it will be a function of the Commissioner to take action against infringements of the Act by Australian or State officials, the Bill provides for the appointment of staff that will be independent of the Australian Public Service. Part V1 also provides that the Australian Human Rights Council is to consist of 10 members who shall be appointed by the Attorney-General.

Mr President, I believe that the enactment of this legislation will be a significant milestone in the political maturity of Australia. It will help to make Australian society more free and more just. It will provide the legal framework within which our social programs can assist people to realise their fuller potential. In conclusion, I would emphasise that the purpose of the Bill is to carry out the International Covenant on Civil and Political Rights. A great deal of work has been done in the preparation of the Bill but it has not been possible to discuss it with all interested groups. The Government will welcome any proposals and comments on the Bill, whether from inside or outside either House of Parliament and during the Committee stage. I commend the Bill to the Senate.

 


return to list of speeches

 

 


 

 

'Opening Address' Conference of Police Commissioners 12.3.73 Canberra.


OPENING ADDRESS - CONFERENCE OF POLICE COMMISSIONERS - CANBERRA

12th March 1973

Thank you Mr Commissioner and Gentlemen. It is a very great pleasure for me to address the Central leaders of the Police Forces of this Region. I am no expert in Police Affairs but I am constitutionally vested with the responsibility not only of the Federal Police Forces but for Human Rights and Civil Liberties. It is important to remember that you are the persons primarily responsible for leading the battle to preserve the fundamental human rights of our people. It's often forgotten when one talks about Human Rights and Civil Liberties that the first and most important of the rights of the Liberties is, the right to be secure in your life in you limb and your property, and without the security for those rights, the others don't mean much, and you are the General leading the battle to preserve those fundamental Human Rights for our people.

In the Federal Sphere, the new Government is very conscious of the fact that there has been neglect of law enforcement, this was disturbing the community so much that the Australian Labor Party made as part of its selection program which was accepted by the people that there ought to be an end of the fragmentation of the Law Enforcement Agencies at the Federal level, and that is why the forces of the NT and the ACT have been brought into the Attorney-General Department. They sent the people, and the people accepted that there ought to be an upgrading of the Police with better pay and conditions and training. We've moved quickly to set in operation the Criminology Research Institute, which while it existed in theory had not been put into administration by the previous administration. We have taken rapid steps to deal with some of the problems of extradition which have been played in not only this country but others in the recent past. Perhaps I might enlarge on it a little when Mr Harders and I were across in London at the Conference of the Law Ministers, Commonwealth Law Ministers, we found that they were all experiencing problems with extradition, and one of the problems was the famous speciality rule, that there had been a rule for a very long time that if a person was extradited the country which was requested to agree to the extradition had in effect, control, over what the person had been charged with, and that he could not be charged with any new offence other than that of which he was extradited without the consent of the requested country, now this had been applied in a very strict way and in fact in a very famous case which came to a conclusion only a little while ago in N.S.W. the point where the British Government for example were saying, that although they reluctantly agreed to the fresh charges being brought against the person on similar on the material that had been used to found the extradition proceedings that in future they would probably find themselves unable to content to such a course. This seemed to us a great deal of nonsense. As I said to them, "What is it all about? If there are extradition, and the country which was extradited him finds that they want to charge him in some different way, and we often find this in Australia within the different States. We might find that if a person has travelled around in a fraud case it might be an offence in the State of Vic rather than against N.S.W. for some technicality, or if you discover that he has done something that wasn't known what business should it be of the other Country to start to lay down conditions and be strict about this. Because after all, he is not going to be shot say when he has been brought back here or taken to some other country you wouldn't have extradition arrangements for the Country unless you had confidence of their administration of justice and it's merely a matter of bringing a person to trial. My own view, the British did indicate that they would change their attitude on this, because they saw the force of this argument, and if one has extradition arrangements with other countries, that there should be none of these technical limitations upon the bringing of charges. For myself, I'll tell you that I see no reasons why our country without even reciprocal arrangements should not have a law, where anyone, whether we have arrangements or not once extradition of a criminal, and we're satisfied that it's a proper case, it's not some political proceeding or something of that nature I see no reason why we should alter our law so that we can consent to the extradition of that person. That's one of the areas of which I believe there has been undue limitations upon the operations of the Police of around the world.

It needs to be dealt with speedily, because we are going to see a great deal more of the movement of criminals with the increasing availability of air travel, cutting out of the visa's and the taxation clearances and so forth, it is very easy for criminals to more ground and unless there criminals to move around and unless there are simple and proper extradition arrangements this is going to make nonsense of the procedures for capture of criminals.

In other spheres I'm aware that a great deal of progress has been made by the Police Forces around Australia. There are endeavours being made to upgrade the technology to match the increasing sophistication of techniques of criminals with increasing sophistication of the methods of detection of pursuit and proof. For this I commend you, and I note that some of what you are about to do at this Conference touches on those subjects.

May I say this to you, there is a lot said in the newspapers about a National Law Enforcement Body and this is important there is going to be one. What we have said we'll do we'll do. but take the course there is a necessity for the Nation to see to it that at the Federal level the fragmentation ceases that there is a better Law Enforcement Agency than there has been in the past. A number of you come from the States and I want to make it plain to you. It's common sense that the task of Law Enforcement at the level where it effects most of citizens, is primarily a task for the Police Forces of the States, and anyone who thinks that in some way forces of the States are going to be swept aside or are not of primary importance, I think would not understand the realities of life, of course this is so, and of course it must remain so. Again I want o say this to you that no matter how effective the individual forces are and no matter how effective your co-operation is between yourselves and the States and the Australian Police no matter effective that is you will be unable to combat the growth of nationally organised crime and the incursions of international crime by you efforts alone. And that must be remembered.

What is necessary, for the Police Forces of Australia in 'nipping the bud' what has happened in other countries is that people of Australia must be mobilised behind you, because it doesn't matter what you do, you can hall all the sophisticated techniques, you can have all the work and you still will not be able to cope with it, that is the experience all over the world, and thatís imperative that the people all over Australia start to realise that the battle against crime to stop what is happening in other countries, while it's being led by the Police Force, it is their battle and they must come behind the Police.

How's this translated into reality? Apart from uplifting the prestige of the Forces, and getting people to understand your acting on their behalf I think we must start to mobilise the people and it is no good speaking about the people in general, and we don't want a situation such as has been suggested at some time, to have citizens rushing in and saying every time someone has crossed a double yellow line or this kind of amateur activity at all. But I think there are some ways which I think we can go about it to try and get the people to assist in this battle. I will give you an example of it. The other night I was speaking to the Associated Brewers of Australia, the main representatives of Toothey's and the Toothes and the WA Swan I am reminded, now these Gentlemen were there and they were talking and the conversation got round to some of these incidents that have been happening and they were very concerned about, and it seemed to me, and I told them, that they were themselves extremely influential and powerful, they were an extremely powerful group of persons, if they wanted to use their efforts to 'nip this in the bud' they could do a great deal. By their immense influence of their own organisation and they themselves if they wanted to do it, could do a great deal because, as you can imagine, you've taken one of the areas and although recent events may focus attention on us, by no means the only area that is seems quite evident that there is a good deal of trouble occurring and is going to occur in the areas where there is liquor and entertainment and so forth, and these great organisations are connected commercially with this and those are the outlets for their products, and they are willing and have offered to assist in this battle. They want to be told what to do and they are willing to throw their weight in to assist.

Now yesterday I was at a conference of the Australian Labor Party and the Federal President of the Liquor Trades Union came to me and he said they were concerned and they wanted to know what to do, and I told them what seemed to me what ought to be done, is we ought to get these people together. There is no reason why we shouldn't and I propose to invite them, those organisation, such as the Brewers; and the Liquor Trade Unions and organised Musicians and the Actors to get them together and to be briefed by the Police Force as to what they should be doing combat this incursion, and get those who are anxious they are after all the people, they have got members working these spheres, the Trade Unions have the Brewers have also, and we don't need to stop at that, there are the club managers and others, get these together, and start to tell them what the problem is and get them behind the Police Force of Australia to 'nip this trouble in the bud' before it gets going.

Now I would suggest this kind of approach, could well be used in other ways so that you are the Generals in this fight, you're the Leaders in it, we need the whole of the community mobilised behind you, so that they can see what you are doing they'll want to assist you and you'll have the community assisting in a very signal way and in a very practical way the efforts of the Police which are after all directed to the maintenance of those fundamental Human Rights.

Gentlemen you are often abused and anything that goes wrong everybody has a kick at the Police you don't very often get much commendation but I think basically the community is aware of the extremely valuable efforts that you make and that your men make of the difficulties you face and of the dangers they face and I am very pleased to be able to meet you all to congratulate you on what you have done in the past and the hope that your efforts at this Conference assist in the advancement of the protection of those Human Rights which is your task to protect the whole Community.

Senator Lionel Murphy12th March 1973.


return to list of speeches

 





'Address by Attorney-General of Australia' Eleventh Officers Course March 1973 Police College. Manly.


ADDRESS BY ATTORNEY-GENERAL OF AUSTRALIA

SENATOR LIONEL MURPHY

OF THE ELEVENTH OFFICERS COURSE

AT THE

AUSTRALIAN POLICE COLLEGE, MANLY

This is the 11th officers course that has been conducted here at the Australian Police College Manly.

You gentlemen here are all experienced police officersóyour average experience in police work is 25 years. This course is truly international and on behalf of the Australian Government I welcome the distinguished visitors from New Zealand, New Guinea, Malaysia, Hong Kong and from all of the Australian forces.

The selection of you gentlemen for a course such as this takes for granted that you are all very experienced in police work.

What this course is designed to do is to cause you to reflect on the traditional methods of law enforcement and to make you aware of developments in technology and thinking about your role as enforcers of the law.

My role as Attorney-General in the Government makes me responsible not only to see that the law is properly enforced but also to see that the rights and liberties of the ordinary citizen are upheld.

It is often thought that there is a conflict in the proper enforcement of the law and making sure that ordinary rights are upheld.

It is a fairly widespread view that criminals will take shelter behind a civil liberties shield and divert law enforcement bodies from carrying out their task.

In my view if the proper equipment is on hand and you are able to mobilise the ordinary people behind you there ought to be little or no conflict.

The Australian Government believes that for too long too little attention has been given to these aspects of law enforcement.

No accurate estimate has been made of the cost of crime in Australia but a conservative estimate is that it costs the community hundreds of millions of dollars each year.

This is not the only aspect that ought to be considered as the effect of crime has a detrimental effect on the quality of life of an ordinary person.

It is the insidious nature of crime which disturbs the ordinary person and creates in him a basic sense of insecurity. When one talks about human rights and civil liberties, it should be remembered that the first and most important of these rights and liberties is the right to be secure in your life, in your limb and your property.

In many cases when an offence such as burglary is committed against an ordinary person it is not just a crime against his property.

I think all of us have seen the results of what happens to people whose house has been burgledóthe fear of what may have happened had they been in the house at the time or the fear of somebody who has been threatened by assault.

Apart from these more traditional forms of crime there are not a new breed of sharp operators who are willing to take advantage of the lack of awareness of the ordinary citizen.

The Australian Government will do all in its power to protect people from this type of snide operator.The Government is in the process of preparing legislation in the fields of consumer protection and restrictive trade practices to make sure that the ordinary person is not taken down.

We are also looking at the various forms of fraud that a person can fall victim to by unscrupulous companies.We have said that as far as we are able we will protect people from these practices and we will do so.

I believe that these are the people who ought to be mustered to assist you to curb the activities of con men and sharp operators in these fields.

While it is of small comfort to the ordinary citizen it is possible from an overall viewpoint to distinguish between organised crime and crime which is endemic in an urbanised society.

This country has now reached the stage in its development where it is a target for organised crime.

Crime such as this can only be dealt with effectively on a national or international scale as this type of crime does not respect State or even national borders.

Since I have become Attorney-General the Australian government has taken steps to integrate the federal law enforcement agencies. We have said that we will create a force which will be able to deal with organised crime on a national basis and I expect to be able to announce these proposals shortly. However, this force alone will not be able to deal with all organised crime in Australia. We shall need the cooperation and assistance of all State police forces to make sure that this is effective and I can assure all you gentlemen here from the State forces that you will have complete cooperation from all federal law enforcement bodies in these matters. All information that we can gather and all the resources we command will be made available to assist you.

I have noticed in the press this week that Queensland apparently has decided not to cooperate in this way. I can only say that I regret this decision as the effect of it will be felt by the ordinary person who looks to the forces that you gentlemen represent to protect him from crime on this scale.

When I was talking to the police commissioners last week I mentioned briefly one aspect where I thought cooperation outside of the police forces was desirable. This was in the field of clubs, liquor outlets and the entertainment industry at which organised crime has directed its efforts.

I suggested that it would be helpful to you and to those involvedóthe owners of the clubs, trade unions whose members were involved and to all others concerned in the industry that detailed consultations should take place to overcome what ever inroads were being made by organised crime.

I think similar meetings should be held between other organisations who are collective victims of organised crime syndicates.

I speak of organisations such as chambers of commerce, chambers of manufacturers, insurers, banks and other organisations who collectively feel the brunt of systematic attack by able criminal operators.

Apart from mobilising these people to assist you in the fight against crime I think there is a lot that can be done to make sure that the forces you represent are better prepared to meet this trend.

A policeman's work is a vocation rather than just an ordinary job and it is a rather thankless vocation. There are always many more out to knock the work you are doing rather than to thank you for it.

I think there is a need to upgrade the forces by better pay and conditions to that a police career should be sought after and have the financial security to become in fact a true vocation.

There are increasingly sophisticated methods and procedures and equipment that can be used in the detection of these crimes.

Many of these sophisticated methods and detection aids have been put aside because of financial considerations. It is the intention of the Australian Government to rectify this.

There is a need for better training of policemen at all levels. Courses such as this one you are attending are an example of what I mean. It is essential that courses such as this ought to be worthwhile because if you feel that there is nothing that you are able to pass on to your colleagues as a result then the courses have not achieved their task.

Better training means keeping abreast with the latest police methods from abroad. While not detracting from the perpetual ingenuity of Australian criminals the problems we likely to confront here have probably been experienced elsewhere.

If we are to take prompt action to frustrate these new developments when they arise here we must be aware of the methods that have been used to discourage them elsewhere in the world.

Some of these matters will take a while to implement and to repay the work you put into them. I can assure you that the Australian Government is greatly interested in the progress you will make and will give you whatever assistance it can, financial or otherwise.

In some areas, the Government has already acted and the steps we have taken so far are these:

               the establishment of an Institute of Criminology and a Criminology Research Council;

               the appointment of a Committee on the computerisation of criminal data; and

               the integration of the law enforcement agencies of the Australian Government

The Institute of Criminology was formally established when the first Acting Director Judge James Muirhead, from South Australia began duty last month. He is at present engaging staff and planning the scope and organisation of the Institute. As soon as that is completed, the Institute will be able to engage in its own original research into the most pressing problems relevant to criminology I Australia. Among its early tasks will be to assess the effectiveness of short-term prison sentences and some basis for compiling uniform crime and prison statistics throughout Australia. In relation to the second project, no uniform statistics are available in Australia of convictions for offences, the recording of serious and minor crimes and prison sentences resulting from those crimes.

Determination of the priorities for research into crime and law enforcement procedure is done by the Criminology Research Council, a Federal-State body comprised of senior representatives from Departments concerned with these matters. The Council has already held two meetings since I took office and it is planned that three or four meetings should be held each year. In its initial stages, this body will be able to disburse funds up to $100,000 for projects designed to assist law enforcement and correctional agencies in the long and short term.

Earlier this year I set up a Committee on the Computerisation of Criminal Data to report to me by August this year on the logistics and finance required to develop a central information sharing centre for all kinds of criminal data.

Experience in other countriesónotably the United States and the United Kingdomóhas demonstrated the enormous advantages to be gained by independent forces joining together in the development of sophisticated, computer-based systems for common use.

In Australia, we have a number of agencies exercising law enforcement functions of one kind or another and there is clearly a great deal of common ground in the pursuit of their objectives. This tends to argue for the establishment of some form of joint facility that would operate to the mutual benefit of all the agencies concerned.

I am aware that some progress has already been made in the area of joint cooperation. The maintenance of the Central Fingerprint Bureau is perhaps the best-known example and I understand that a Joint Working Party has been set up by this Conference to look into the use of computers for law enforcement work.

The establishment of the Joint Working Party is a welcome recognition of the problems that could arise if each of the various agencies were to adopt an uncoordinated approach to the important question of automation. Quite apart from the more obvious needs, such as standard reporting systems to enable reliable crime statistics to be assembled on a national basis, the development of effective, comprehensive computer systems is an expensive business, which would tax the resources of any individual agency.

In the course of its deliberations this Committee will attempt to define the requirements of the various agencies and examine overseas systems of this type, with a view to drawing on first-hand experience and studying the latest trends in the automation of law enforcement and criminology.

I would hope that the type of centre I have in mind would perform the dual function of providing a readily accessible information service to the agencies involved and -----

Much hard work and a great deal of cooperative effort will be required to transform these concepts into reality. I am convinced, however, that automation of criminal records is the key to more effective law enforcement in Australia and that we should therefore join together and do everything within our power to accelerate this process.

I hope that this course proves to be worthwhile and that at its conclusion you will have gained something from it. I can assure you of my personal support in the difficult work you are doing.

 


return to list of speeches

 




 

'Address in Reply to a Speech of Welcome' Alliance Francaise of Sydney. 1973


 

ADDRESS IN REPLY TO A SPEECH OF WELCOME

BY THE ALLIANCE FRANCAISE OF SYDNEY

It is a great pleasure for me to accept the gracious invitation of the Alliance Francaise to come here tonight and I am honoured to receive such a courteous welcome.

I, for one, am very conscious of the splendid work that the Alliance does in fostering an appreciation of the very rich cultural heritage of France throughout the world, and particularly in Australia. Moreover it is obvious that your efforts have not gone unrewarded.

French is still one of the most widely taught foreign languages in Australian schools. It would be even more popular if the French were more tolerant of English speaking people speaking French.

The other night I saw a film in which that great cultural historian and scholar Lord Clark, referred to the fact that the contemporary Australian artist Sidney Nolan was greatly influenced by that grand old founder of naive paintingóHenry Rousseau.

I am sure that this is only one example of a great Australian being influenced in his work by a great Frenchman. One has only to mention from the past 100 years the names Zola, Verlaine, Pasteur, Curie, Debussy, Satie, Manet, Money, Gauguin and many more to realise that the influence of the French cultural and intellectual heritage has been important and widespread.I would add that, for a considerable price, the Australian government has recently purchased a small part of that heritage, I refer, of course, to the magnificent bird sculptures by Brancusi.

Brancusi achieved prominence in connection with a lawsuit in 1927 against the U.S. Customs Service which had refused to admit his 'Bird in Space' duty free as a work of art. The ensuing argument between conservative and modern critics ended in a victory for Brancusi and modern art.

You can be quite sure that as long as I remain Minister for Customs & Excise, there will be no problems with the birds just acquired by the Australian government.

On a different note, it should not be forgotten that Australians have actively fought side by side with their brother Frenchmen to maintain the heritage shared by our two countries. No less than 25,000 young Australian men lie buried on French soil as the result of two world wars. I might add that in the short space of 10 days in late July and early August 1916, in a small corner of France called Pozieres Heights, the Australian Forces suffered some 24,140 casualties including 6,741 dead. Is it any wonder that the Australian official War Historian, Dr. Bean, described Pozieres Heights as being 'more densely stained with Australian sacrifice than any other place on earth'.

If we were to believe the press, one would have the impression that these important cultural and historical ties were unimportant in comparison to the present 'Malentendu' between the two countries. The fact that the Australian government has engaged in proceedings against France before the International Court of Justice should not be seen as inconsistent with the sentiments I have expressed. However, I would emphasise that the Australian government shares the hope of Jean-Jacques Servan Schreiber that President Giscard'd'Estains will make the correct decision and cease nuclear tests in the atmosphere.

I should like to finish on a reassuring note by say that I am confident that the contacts between our citizens, governments and respective cultures will continue to be fruitful and enriching. The role of the Alliance Francaise in crystallising these contacts is an important one. I am confident that your association will continue to fulfil its essential purpose with the energy and good taste that have characterised it in the past.

(French translation of final para)Pour terminer, je voudrais dire quelques mots en Francais. Je suis confiant que les rapports entre nos citoyens, nos gouvernements et nos cultures continueront a être fructueuses. Le rôle de l'alliance Francaise dans ces relations est important. Je suis confiant que votre organisation continuera à remplir sa mission avec l'énergie et bon goût qui lui sont coutumiers.


return to list of speeches

 




 

An Australian Bill of Rights' International Commission of Jurists Australian Section 7 December Sydney

 

 


ATTORNEY - GENERAL'S DEPARTMENT

AN AUSTRALIAN BILL OF RIGHTS

Address by the Attorney-General of AustraliaSenator the Honourable Lionel Murphy, Q.C.,to the International Commission of Jurists,Australian Section, 7 December 1973

Mr Chairman, Ladies and Gentlemen,

We gather together once a year this time to meet people who are humanitarian, lovers of civil liberty, and good food and wine, and to wish that those conditions might prevail all over the world, because this is what we really seek.

I am pleased to have the opportunity of speaking to you on the subject of an Australian Bill of Rights.On 10 December 1973, we will celebrate the 25th Anniversary of the adoption by the United Nations of the Universal Declaration of Human Rights.

The promotion and protection of human rights was once looked upon as the sole concern of individual governments.

However, when the United Nations Charter was adopted in 1945, the protection of human rights assumed an international character.

The Charter proclaims that one of the purposes of the United Nations is to achieve international co-operation in 'promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion'.

The Charter contains a number of provisions providing for the initiating of studies and the making of recommendations for the purpose of 'assisting in the realisation of human rights' and 'promoting respect for, and observance of, human rights and fundamental freedoms for all'. It also provides for the establishment of a Commission for the promotion of human rights.

At this time the United Nations Charter was being drawn up, proposals were already being submitted that an International Bill of Human Rights should be drafted.

When the Commission on Human Rights was established in 1946, its first task was to draft such a Bill.The Commission decided that the Bill should consist of three parts - a Declaration of Human Rights, a Covenant on Human Rights which would transform the principles of the declaration into legal obligations, and measures of implementation, or international machinery to secure the effective observance of the obligations.

Two years later, on 10 December 1948, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights. The Declaration was adopted without a single dissenting vote.

The General Assembly proclaimed the Declaration as a 'common standard of achievement for all peoples and all nations, to the end that every individual and organ of society, keeping his declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance'.

The Universal Declaration was the first instrument of its kind to set forth the rights and freedoms to which men and women everywhere are entitled. This does not include declarations made at the time of the French and American Revolutions as these were more directed to the peoples of those countries.

When it was adopted, the President of the General Assembly, Dr Evatt, declared:

'It is the first occasion on which the organised community of nations has made a Declaration of human rights and fundamental freedoms, and it has the authority of the body of opinion of the United Nations as a whole, and millions of men, women and children all over the worldÖwill turn for help and guidance and inspiration to this document'.

The second and third stages of the International Bill of Rights were reached in 1966, with the adoption by the General Assembly of the International Covenant of Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and the Optional Protocol to the latter Covenant.

The concepts outlined in the International Bill of Rights have since been developed in a series of comprehensive international instruments on human rights, and the development of these instruments must be regarded as one of the great achievements of the United Nations.

The Universal Declaration and the Covenants on Human Rights have had a profound influence on other international agreements and instruments, and on the national Constitutions of many countries.

In the promotion of human rights at the national and international level, an important contribution has been made by the International Commission of Jurists.

The Commission was formed in 1952. Its original purpose was that of exposing and denouncing violations of justice and human rights. The Commission has since adopted the positive function of advancing and defining the rule of law throughout the world. The Commission's work is based on the recognition of fundamental human rights and on the assertion that these rights are best protected by the establishment of the rule of law.

The Australian Section of the International Commission of Jurists was established at a meeting in Sydney in 1958 under the chairmanship of Sir Owen Dixon. Sir Owen was the Section's first President.

Since its establishment, the Australian Section has held a number of important conferences and seminars, and in 1968 it inaugurated the periodical 'Justice', the purpose of which is to publish contributions dealing with various aspects of the rule of law and human rights.

The publication by 'Justice' of a number of important articles by noted authors concerning the Universal Declaration of Human Rights and the ratification by Australia of the International Covenants on Human Rights has contributed much to the promotion of human rights in Australia.

One such article is that written by Professor Alex Castles in 1968.

In this article, Professor Castles made a number of important observations on the international significance of multi-lateral treaties on human rights.

He pointed out that the rapid increase in the number of multi-lateral agreements in the last 50 years bore witness to the fact that the creation, ratification and enforcement of international agreements, in treaty form, was now regarded as a standard method for working towards more viable international legal order, and that this was in accord with Article 13 of the United Nations Charter which provides for the General Assembly to promote 'the progressive development of international law and its codification'.

Professor Castles also pointed out that the range of these agreements indicated that many matters that once were considered to be the sole concern of individual countries had now become the subject of multi-national concern, this being particularly so in the field of human rights.

He observed that, of the existing multi-lateral agreements which are aimed at universalising the international regulation of national and individual relationships, many of the most important and far reaching were those dealing with human rights.

He referred in particular to the International Covenants on Human Rights, which deal with rights that are considered by a consensus of international opinion to be worthy of international concern and protection.I have long been identified with the move in Australia to secure greater recognition of human rights and to establish for Australia a Constitutional Bill of Rights. At the recent Constitutional Convention, I pointed out that as at 1 January 1973, 108 of the 147 independent countries in the world had a Bill of Rights. Australia does not. Citizens in Australia lack democratic rights to which they are entitled.

A constitutional Bill of Rights would operate as a constraint both on the Australian Parliament and the States.A Bill of Rights frees the citizen from unprotected reliance on legislative and judicial self-restraint.

It gives him a firm legal basis on which he can go to the courts and require positive protection of his rights, and on which he can resist the invasion of those rights.

I also pointed out to the Constitutional Convention, that there are many areas in which our assumption that the rule of law prevails is not justified.

In criminal law, our protection's against detention for interrogation and unreasonable search and seizure, for access to counsel and to ensure the segregation of different categories of prisoners are inadequate.

Australian laws on the powers of the police, the rights of an accused person, and the state of the penal system generally are unsatisfactory. Our laws on privacy are vague and ineffective.

There are a few effective constraints on the gathering of information, or its disclosure, or surveillance, against unwanted publicity by government, the media or commercial organisations.

Free speech is only what is left after due weight has been accorded to the laws relating to defamation, blasphemy, copyright, sedition, obscenity, use of insulting words, official secrecy, contempt of court and of parliament, incitement and censorship.

Freedom of assembly is hedged about by innumerable laws relating to permits, binding-over orders, obstruction, unlawful assembly, riot, trespass, nuisance and offensive behaviour.

I announced at the Convention that the Australian Government intended to introduce a Bill implementing the International Covenant on Civil and Political Rights as a first move towards a statutory Bill of Rights in this country. That Bill, the Human Rights Bill 1973, was introduced into the Parliament on 21 November 1973.

Moves to implement the International Covenant on Civil and Political Rights in Australia law have been gathering momentum during recent years.

The 1968 Melbourne Conference of this Commission urged that steps be taken to ratify the International Covenants. Attention was also focussed on the Covenants by the 1968 Australian Committee for Human Rights Year, a Committee in which more than 100 non-governmental organisations in Australia participated.

The Conference of the Committee, held in Canberra early in 1969, recommended that the Australian Government proceed to ratification of the Covenants. The Conference was conscious of the special problems created for Australia as a result of its federal system, and suggested a number of measures to overcome these difficulties. These included a study of the existing practices on ratification where Australian and State powers were involved, with special reference to the amid of the external affairs power of the Constitution.

Professor Castles, in the Article to which I have referred, observed that Australia's record of adherence to the Human Rights agreements compared poorly with the records of many unitary States with similar ideological backgrounds.

He also observed that Australia lagged noticeably in the ratification of such conventions comparison with many other States at a similar stage of economic and social advancement.

He said that, not without cause, it has been suggested that our reputation as a socially advanced country has been weakened as a result. He also suggested that localised opposition to adherence to these international standards had played an important part in tarnishing Australia's international reputation in this area.

Support for these conclusions is to be found in a subsequent article in 'Justice' by Professor Derek Roebuck who commented that 'it is to the shame of this country, a fact not unnoticed by other countries, that we have dragged our heels disgracefully in not ratifying covenants which we are not prepared to argue against'.

It is against this background that the Australian Government has prepared and introduced the Human Rights Bill and I would like to make some comments on the underlying features of the Bill.

I would like to emphasise that the Bill follows closely the provisions of the International Covenant.

It is necessary to bear in mind that the extent of constitutional power of the Australian Parliament to pass legislation on this matter is delineated by the area covered by the Covenant. We have, at the same time, taken the view that the constitutional power of the Australian Parliament will sent to enable the Parliament to enact some variations and additions to the terms of the Covenant where this is necessary. This will avoid repetition, achieve greater clarity and ensure that the Covenant is effectively implemented.

We believe that legislation designed to give sensible and effective implementation to the obligations laid down in the Covenant is properly to be regarded as within the competence of the Australian Parliament.

Articles 12, 18, 19, 21 and 22 of the Covenant, which relate to freedom of movement, religion, expression, assembly and association, permit restriction of those rights on grounds of national security, public safety, public order, public health or for the protection of the rights and freedoms of others.

The Bill permits derogation of the rights referred to in these Articles where this is necessary for such purposes as national security, public safety or public health, or where the restriction constitutes reasonable regulations, as to time, place and manner, of the right.

In our judgement, to permit complete derogation in the terms permitted by the Articles would greatly reduce the content of the rights guaranteed by the Articles, and derogation's in the above terms are more satisfactory.

The test of reasonableness is a familiar one in our system of law and should, I think, prove to be readily acceptable as a safeguard to the restriction of rights.

Some of the provisions in the Bill based on the Covenant follow closely the provisions of constitutional guarantees of the United States, and we would hope to gain some benefit from the experience of the case law in that country as developed by the United States Supreme Court.

A notable example is clause 8 of the Bill which provides that everyone is entitled without any discrimination to the equal protection of the law. The activism of the Court led by Chief Justice Warren is largely identified with the doctrine of equal protection which, as applied by the Supreme Court, not only led to desegregation in the famous Brown Case in 1954, but was applied to such matters as the interests of women, prisoners and voters.

It would be futile to grant rights unless there was machinery for their enforcement, and the Human Rights Bill will provide a comprehensive framework for the enforcement of rights.

A variety of legal remedies is provided for in the Bill which may be sought by an aggrieved person.

Where the Court is satisfied that an infringement of the legislation has occurred, it is to make a declaration to that effect and it may grant, as appropriate, a number of remedies. These include an injunction, an order cancelling a contract, orders setting aside a judgement, quashing a conviction, or directing a new trial and damages in respect of the loss suffered by an aggrieved person and the loss of dignity, humiliation and injury to the feelings of an aggrieved person.

In addition, the legislation establishes administrative machinery, which will enforce rights in a systematic way and reduce the need for costly litigation.

Professor Enid Campbell has pointed out that judicial review may sometimes be too spasmodic in its operation to serve adequately as the sole policing mechanism, because it depends on the extent to which people resort to the Courts.

The legislation will enable an Australian Human Rights Commissioner to investigate infringements, of rights, either on his own initiative or where a complaint is made to him.

In conducting an investigation, the Commissioner may inform himself in such manner as he thinks fit and is not bound by the rules of evidence. The Commissioner may require a person to furnish him with information, to produce documents or to appear before him to give evidence. The Commissioner has power to seek a settlement of the issues by conciliation and may issue a warning in respect of infringements, or proposed infringements, of the Act. The Commissioner will also have power to take civil proceedings on his own behalf or on behalf of an aggrieved person seeking the remedies I have referred to.

The legislation will also establish an Australian Human Rights Council to advise the Attorney-General and the Commissioner on matters relating to the observance and implementation of international instruments relating to human rights, the promotion of educational programs with respect to human rights and other related matters.

The establishment of this machinery is an important part of the legislation.

The Commissioner will be an independent authority.

His staff will be employed outside the Australian Public Service. He will frequently act as the guardian of the rights of the people against Governmental action.

I believe that the establishment of the Commissioner will represent an important innovation.

There are examples of machinery of this kind in national systems in the investigation of racial discrimination, and in the investigation of human rights on an international level when recourse at the local level has been exhausted. The establishment of a Commissioner at the national level to investigate the whole range of infringements of human rights is an innovation that will help to place Australia to the fore among nations in the protection of human rights and fundamental freedoms.

In conclusion, the implementation in our law of the Covenant on Civil and Political Rights will have great educational, as well as legal, value.

The introduction of this legislation, and the ratification by Australia of the International Covenants on Human Rights will serve as a practical and viable tribute to the achievements of the United Nations which we commemorate on 10 December this year.

I hope that this legislation will not only firmly establish adherence in Australia to the standards pioneered by the United Nations since the adoption of the Universal Declaration, but will also lead to the entrenchment of these standards in the Australian Constitution.


return to list of speeches