THE HON. LIONEL MURPHY QC
JUSTICE OF THE HIGH COURT OF AUSTRALIA 1975-1986
NSW SENATOR 1960-1975 COMMONWEALTH ATTORNEY-GENERAL 1972-1975 COMMONWEALTH MINISTER FOR CUSTOMS AND EXCISE 1972-1975
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Senator Lionel Murphy QC
Attorney-General of Australia
'Welcome Speech' Transcript of Proceedings in the High Court of Australia on the Occasion of the Swearing in of Mr Justice Jacobs as a Justice of the High Court of Australia 11 February
'The Role of the Police in the Preservation of Human Rights' Opening Adress by the Attorney-General of Australia, Senator Lionel Murphy QC at a seminar conducted by the Australian Crime Prevention and After-Care Council Canberra March 7
'Human Rights Bill' Address to the NSW Council for Civil Liberties 26 March
'The Racial Discrimination Bill' Address to Leaders of the Migrant Communities in Sydney 9 March
'Address by Attorney-General of Australia, the Honourable Lionel Murphy Q.C., to the United Nations Association of Australia, Human Rights Seminar'. Sydney. 20 April
'Opening of the Australian Legal Aid Office, Brunswick, Victoria' July 19 1974
'Consumer Protection Laws' Address by the Attorney-General, Senator Lionel Murphy, at the Australian Institute of Management's 21st Anniversary National Marketing Conference,15 November 1974.
'Some Thoughts on the Philosophy of Company Law' Conference of the Australian Council of Chartered Secretaries and Administrators 25 November Australian Government Digest 1.10.74-31.12.74 :1095-1105
"Why Australia needs a Bill of Rights" A reply by the Attorney-General, Senator Lionel Murphy, Q.C., to a series of articles by Sir Robert Menzies on the Human Rights Bill. Australian Government Publishing Service, Canberra 1974
'Welcome Speech' Transcript of Proceedings in the High Court of Australia on the Occasion of the Swearing in of Mr Justice Jacobs as a Justice of the High Court of Australia 11 February 1974
TRANSCRIPT OF PROCEEDINGS IN THE HIGH COURT OF AUSTRALIA AT SYDNEY ON MONDAY, 11 FEBRUARY 1974, ON THE OCCASION OF THE SWEARING IN OF MR JUSTICE JACOBS AS A JUSTICE OF THE HIGH COURT OF AUSTRALIA
IN THE HIGH COURT OF AUSTRALIA
Coram: BARWICK, C.J.
TRANSCRIPT OF PROCEEDINGS
(Transcribed from Sound Recording)
AT SYDNEY ON MONDAY, 11 FEBRUARY 1974, AT 10.19AM
(Mr Justice Jacobs appeared on the dais)
JACOBS, J; Your Honour the Chief Justice, I have the honour to announce that I have received a commission from His Excellency, the Governor-General, appointing me as a Justice of the High Court of Australia. I now present to you the commission.
(Barwick, C.J. perused the commission, handed it to the Principal Registrar, and directed that officer to read aloud the commission.)
THE PRINCIPAL REGISTRAR read the commission thus:
APPOINTMENT OF A JUSTICE OF THE HIGH COURT OF AUSTRALIA
I, the Right Honourable SIR PAUL MEERNAA CAEDWALLA HASLUCK, Knight Grand Cross of the Most Distinguished Order of Saint Michael and Saint George, Knight of Grand Cross of the Royal Victorian Order, Knight of the Most Venerable Order of the Hospital of Saint John of Jerusalem, the Governor-General of Australia, acting with the advice of the Executive Council in pursuance of section 72 of the Constitution hereby appoint the Honourable KENNETH SYDNEY JACOBS a Judge of the Supreme Court of New South Wales and President of the Court of Appeal of that State to be a Justice of the High Court of Australia on and from 8 February 1974. Given under my hand and the Great Seal of (L.S.) Australia on twenty-third January 1974.
(signed) PAUL HASLUCK Governor-General
By His Excellency's Command, LIONEL MURPHY Attorney-General
BARWICK, C.J: I now invite you to take an oath of allegiance to Her Majesty the Queen and the oath of office of a Justice of this Court.
JACOBS, J: I, KENNETH SYDNEY JACOBS, do swear that I will be faithful and bear true allegiance to Her Majesty, Queen Elizabeth the Second, her heirs and successors, according to law. SO HELP ME GOD!
I, KENNETH SYDNEY JACOBS, do swear that I will well and truly serve our sovereign lady the Queen in the office of a Justice of the High Court of Australia, and I will do right to all manner of people according to law without fear or favour, affection or ill-will. SO HELP ME GOD!
BARWICK, C.J: Will you now subscribe the oaths you have taken. I now invite you to take your seat on the bench. I direct the Register to enter up the commission and the oaths as a record. Mr Attorney?
MR L.K. MURPHY, QC Attorney-General for Australia: May it please your Honours: on behalf of the Prime Minister and the Government, the Australian bar and the people of Australia, I congratulate Mr Justice Jacobs on his appointment to the high office of Justice of this Court.
The new Justice has a reputation for great scholarship. He has earned that reputation both off and on the bench. He has a reputation for humanitarianism, which also he has earned both off and on the bench. He has a reputation for judicial patience and tolerance. He has earned that also. He has a reputation for willingness to modernise the law and bring it, as far as a judge properly can, into line with the needs of the community. Again, he has earned that reputation.
As a Justice of the Supreme Court, then a Justice of Appeal and then President of the Court of Appeal, he has well served the people of New South Wales. I am sure that our nation will benefit from his talents because his attitudes and his energy will now influence even more decisively the laws of Australia.
This Court is established under the Constitution which says the judicial power of the Commonwealth shall be vested in a federal supreme court, to be called the High Court of Australia. I hope that before long by a constitutional amendment it will be known by its rightful title as the Supreme Court of Australia. As the apex of our judicial system the Court is here to settle the highest controversies, many of them constitutional. Much of our history has been decided here. Including Chief Justices, Mr Justice Jacobs is the twenty-ninth Justice of this Court. Among the first twenty-eight many have been great men, some controversial. Each one has left his mark on our legal history.
Most informed persons now accept that Justices of this Court do not simply apply but actually mould the law. Our Constitution means what this Court says it means. Whether the Constitution is construed narrowly or widely, whether the laws turn out to be fair or unfair, depends not entirely but to a large extent on the attitudes of the Justices of this Court. Parliament makes the laws, but, as our society becomes more complex, as there is need for more and more legislation, Parliament more and more ought to, and indeed must, state its legislative policy in more general terms. The Parliament should not have to, and is not able to, enact measures that pay meticulous attention to every conceivable possibility. The courts should have a positive role in adapting the law to the infinite variety of circumstances which cannot be anticipated by the legislature.
We are confident that the new Justice is excellently endowed to participate in the positive creative development of the law. This great office must be one of the most satisfying tasks undertaken by any of our fellow citizens. Mr. Justice Jacobs, we know that you will serve well, we wish that you will enjoy it. .
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'The Role of the Police in the Preservation of Human Rights' Opening Adress by the Attorney-General of Australia, Senator Lionel Murphy QC at a seminar conducted by the Australian Crime Prevention and After-Care Council Canberra March 7 1974
THE ROLE OF THE POLICE IN THE
PRESERVATION OF HUMAN RIGHTS
OPENING ADDRESS BY THE ATTORNEY-GENERAL OF AUSTRALIA,
SENATOR LIONEL MURPHY, Q.C.,
AT A SEMINAR CONDUCTED BY THE AUSRALIAN CRIME PREVENTION
AND AFTER CARE COUNCIL, CANBERRA, MARCH 7, 1974.
Mr Chairman, Ladies and Gentlemen
I am pleased to have the opportunity to address you and open this Seminar that has been arranged by the Australian Crime Prevention, Correction and After-Care Council. The topic to be discussedóthe Role of the Police in the Preservation of Human Rightsówas the subject-matter of a Seminar convened in Canberra eleven years ago by the United Nations in cooperation with the Australian Government. It is timely that the matter should be raised again for discussion. It raises issues of great importance to the general public as well as those responsible for the enforcement of the law.
For centuries men have believed that the recognition of fundamental rights and freedoms forms an indispensable basis for the development of human personality and civilised communities. At no time in our history has both the denial and the recognition of fundamental rights been brought into sharper contrast than in the last 40 years. The events of the Second World War focussed attention on the need to secure these rights on an international as well as a national level.
Since the war, modern society has become exceedingly complex and opportunities constantly arise in which for one reason or another inroads are sought to be made into basic freedoms. The increase in crime resulting from the rise in population and economic and social change has brought with it pressures to modify or refuse certain basic guarantees. The issue arises whether the denial of fundamental values is justified to assist in the prevention of crime or whether crime prevention is, in the long run, better served by maintaining adherence to these values.
The preservation of human rights on both the national and international level has become a matter of international concern. There is a recognition of the impact that denials of basic rights and freedoms may have on the international relationships. This recognition has led to the development of multi-lateral agreements in the field of human rights as an important means of achieving a more viable international legal order.
The United Nations Charter proclaims that one of the purposes of the United Nations is to achieve international cooperation in 'promoting and encouraging respect for human rights and fundamental freedoms for all without distinction'. In the charter, members of the United Nations have pledged themselves to take action for the promotion of human rights both by individual national action and by actions of international cooperation with other members and with the United Nations itself.
At the time the United Nations Charter was being drawn up, proposals were already being submitted that an international Bill of 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 partsóa Declaration of Human Rights, a Covenant on Human Rights which would transform the principles of the Declaration into legal obligations, and international machinery to secure the effective observance of the obligations.
Two years later, in 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 second and third stages of the International Bill of Rights were reached in 1966, with the adoption by the General Assembly of the United Nations of further instruments, including the International Covenant on Civil and Political Rights, which was adopted by the General Assembly unanimously by more than 100 countries, including Australia.
The adoption of the International Covenant on Civil and Political Rights was thus the result of nearly 20 years effort. It was subject to intensive debate over this period and represents the consensus of international thinking on this subject. The Declaration and the Covenant have had a profound influence on other international agreements and instruments and on the national Constitutions of many countries. At the Constitutional Convention last year 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 the guarantee of many basic rights to which they are entitled. As I pointed out to the Convention, a Bill of Rights would operate as a constraint both on the Australian Parliament and the State Parliaments. A Bill of Rights would free the citizen from unprotected reliance on legislative and judicial self restraint. It would give him guarantees in areas where guarantees do not exist and provide him with a firm legal basis upon which he can go to the courts for the protection of his rights.
The common law has provided inadequate protection to many basic rights. Even where common law rights exist, these have often been set aside or modified by the legislature. The common law is powerless to protect individuals against written laws and regulations that infringe human rights. As society becomes more complex, the temptation to whittle away rights will continue. I do not dispute that restrictions on individual freedom are sometimes necessary in a modern society to recognise the rights of others and other interests. However, a Bill of Rights would provide a yardstick of standards against which encroachments on basic rights can be measured.
Ideally, a Bill of Rights should be written into the Constitution and I proposed last year to the Australian Constitutional Convention that this should be done. I shall be presenting to a sub-committee of the Convention detailed views on the content of such a Bill.
In the absence of a Constitutional Bill of Rights, I have introduced into Parliament a Human Rights Bill, the purpose of which is to implement into Australian law the International Covenant on Civil and Political Rights. This legislation has been the subject of public debate and I have received a number of constructive suggestions for its improvement. It has been recently announced a number of improvements that I propose to make to the Bill and I have said that all suggestions that are made to me for the improvement of the legislation will be taken into account when the Bill is re-introduced into Parliament. The International Covenant contains a number of important guarantees in relation to the administration of justice that are relevant to the discussion in this Seminar. The Covenant provides that no-one is to be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Anyone who is arrested is to be informed, at the time of his arrest, of the reasons of his arrest and charged with a criminal offence is to have the right to be presumed innocent until proved guilty according to law. In the determination of a criminal charge against him, a person is to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing, to be tried without undue delay, to have legal aid in any case where the interests of justice so require and is not to be compelled to testify against himself or to confess guilt.
The International Covenant requires each State Party to ensure that any person whose rights and freedom are violated shall have an effective remedy.
It is sometimes asserted that strict adherence to these basic principles makes the task of law enforcement authorities too difficult and that the modification or removal of basic rights is necessary to make law enforcement easier and more efficient.
It would be tragic, in my view, if the nation gained acceptance in Australia that rights accepted internationally as basic guarantees should be denied because this was necessary for effective law enforcement and crime prevention. The notion that infringements of these rights in the collection of evidence should be countenanced ought, in my view, to have no place in our society.
Leaving aside the important principle involved, it is, wrong to assume that effective law enforcement can only be achieved by denying the operation of basic rights. Surely the proper course to adopt to improve the resources available to the police, upgrade their status and training, improve equipment and detection techniques and promote public participation in the prevention of crime.
The suggestion sometimes made that a relationship exists between the enforcement of basic rights and the increase in crime ignores the studies by modern criminologists of the sociological and psychological factors in modern society associated with increased crime and the many other complex factors associated with crime in urbanised and industrialised communities. It is to the task of exploring these factors that the attention of crime prevention planners should be directed.
In my view, the contrary assertion is validóthat effective crime prevention in the future will depend upon the maintenance of public confidence in, and support of, the police and that this can only be achieved by the pursuit of high professional standards and by the scrupulous observance of human rights. The origins of the police force in Britain were based on this view. Despite the increase in lawlessness associated with the industrial revolution and the growth of cities, there was intense public opposition to Peel's Metropolis Police Improvement Bill of 1829. This opposition was based on the assumption, taking into account the experience of continental police forces, that a police force would be a repressive influence that would destroy liberties and freedoms. However, the first Police Commissioners established a code of conduct that was instrumental in gaining public acceptance of the British force.
Among the principles established was the notion that the fulfilment of police functions depended upon public support and approval of and respect for the police and that such support and respect depended upon the impartial enforcement of the law and the minimum use of physical force and compulsion in the pursuit of police objectives.
The Police Forces in Australia are, I think, well aware of the need for the support and cooperation of the public and have taken many initiatives in the form of youth clubs, juvenile aid bureau and crime prevention committees to enlist public support. Much more, however, needs to be done to enlist public support and initiative is, I think required from governments and the public as well as the police.
Law enforcement officers have wide discretionary powers. A policeman in a public place may often be required to draw a balance in relation to the exercise of rights by the public and will be required to exercise discretionary powers. He will not have time for long reflection on the course of action he should take. Police are often required to operate on the basis of vague and imprecise notions as to the extent of their discretionary powers. This imposes undue burdens on the police and has implications for the rights of individuals affected by police action. The use of police power in these circumstances will depend very much on the standard of training, the code of conduct and the personal integrity of the police officer exercising this power. The policeman has often to deal on the spot with a clash of interests and he will be criticised whatever course he takes. The public will expect a variety of qualitiesóintegrity, maturity, patience, courtesy, restraint and propriety. The police may not display all or any of these qualities. The public, on the other hand, shows increasing indifference to the problem of police and pays scant regard to the need for cooperation and assistance.
It seems clear that guidelines should be drawn for the exercise of police discretions and that public cooperation must be mobilised in a much more systematic and ordered fashion than has been customary in the past. Public participation in the treatment and after-care of offenders has flourished for many years in Australia and this Council owes its origins to voluntary organisations engaged in this work. However, comparatively little attention has been given to the mobilisation of public participation in the field of crime prevention. There is much to be said for the creation of formal machinery at national and regional levels with wide representation from community leaders and all relevant fields to foster cooperation with law enforcement authorities and crime prevention programmes encompassing broad and imaginative perspectives.
The United Nations has called for a study of these problems at the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders to be held at Toronto in 1975. The Congress plans to discuss the 'Emerging roles of the police and other law enforcement agencies with special reference to changing expectations and minimum standards of performance'. The United Nations Secretariat has stated that this items has been included on the agenda to give recognition of the feeling that the police function is at a critical stage in a rapidly changing world. The intention is that the precise role of the police in the future should be studied and that this should involve a discussion of public expectations of the police, the self-concept of police and the standards of performance regarded as professionally basic for any police service.
The United Nations has also invited the Committee on Crime Prevention and Control to submit to the Human Rights Commission recommendations in relation to an international code of police ethics and has requested the Commission to prepare a code on the basis of these recommendations.
These studies will help to clarify the issues and fill a gap that has long existed in deliberations of the United Nations on the prevention of crime.
Mr Chairman, I wish this Seminar every possible success. I hope that the discussions will be fruitful and constructive and will contribute significantly to community awareness of this important topic. I have much pleasure in declaring this Seminar open.
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'Human Rights Bill' Address to the NSW Council for Civil Liberties 26 March 1974
HUMAN RIGHTS BILL
AN ADDRESS BY THE ATTORNEY-GENERAL OF AUSTRALIA,
SENATOR LIONEL MURPHY, Q.C., TO THE MEETING
CONVENED BY COUNCIL FOR CIVIL LIBERTIES
SYDNEY, 26 MARCH, 1974
Mr Chairman, Ladies and Gentlemen.
It is with great pleasure that I have accepted your invitation to speak to you tonight on the Human Rights legislation to come again before the Australian Parliament. This pleasure is increased by the realisation that this meeting has been convened by the Council for Civil Liberties, whose object is to promote the observance of human rights and to take up the cause of individuals whose civil liberties have been infringed.
The last public meeting I attended in this city was the Divorce Law Reform Association. I noticed in the weekend press that I was severely criticised by one of the judges of the Supreme Court. He was astonished that I would attend a meeting of people who would express the views as they did. Well it seems I am going from bad to worse and we will see what might come out this evening.
We are today living in a society which is becoming increasingly complex and becoming more and more dominated by big organisations, including governments, corporation and other bodies. The growth in the size and influence of these organisations has implications for the rights of the individual and there is an increasing need for safeguards to ensure that individual rights do not give way to the needs of these bodies or to the whims of individuals vested with administrative discretions of managerial responsibilities.
The manner in which civil liberties have been eroded over the years has been a matter of concern to the Labor Government. Ideally, a Bill of Rights should be written into the Australian Constitution. But in the absence of an entrenched Bill of Rights, it is my intention to use whatever powers are available to the Australian Parliament to bring down legislation to protect fundamental freedoms and promote human rights.
The purpose of the Human Rights Bill will be to implement into laws of the Australian Parliament the International Covenant on Civil and Political Rights.
You will have been aware that during recent weeks conservatism and reluctance to undertake change has led to a good deal of criticism of the Bill. In a series of Articles published in the press, Sir Robert Menzies has asserted that our rights and freedoms are sufficiently protected already by the common law and by our system of responsible government. He has submitted that the Australian Parliament should not use its constitutional power to give effect to international agreements if this involved legislation in areas previously thought to be the province of the States. Sir Robert was at pains to emphasise the beneficial aspects of the common law so far as it concerns rights of action for damages for civil wrongs.
The common law is not always tender for the rights of the individual, especially an individual without money or without political influence. Last century the common law upheld the right of factory owners to contract with children to work for sixteen hours or more a day for starvation wages. When workers formed trade unions to get better conditions, the common law, aided by Parliamentary enactment, said the unions were unlawful combinations and their leaders were sent to prison. It is still the position in common law that all trade unions are unlawful as conspiracies in restraint of trade. The Parliament has made it unlawful to employ young children and has given them the right to education. It has made it lawful for trade unions to operate, and in this way cut down what the common law has provided.
Even where our fundamental rights and freedoms apparently depend on the common law, the common law, because it is subject to statutory enactment, is often powerless to protect those rights and freedoms.
The common law does not say we have freedom of speech; it says we may speak as we wish, so long as what we say is not unlawful. The common law does not say we have the right to freedom of assembly; it says that people may not be prevented from meeting together unless the law forbids that meeting. The common law says a person may not lawfully be arrested or kept in custody; it does not put any limits on the kind of laws that may be made to authorise arrest or detention. The common law, as interpreted by the High Court, denies any general right of privacy. The common law gives a man who can afford the fees the right to be represented by a lawyer in court; it does not guarantee the same privilege to a poor man.
The law relating to arrest and custody gives no effective protection. Criminal suspects are not supposed to be detained on suspicion, interrogated against their will, denies access to legal advice, kept incommunicado or, after charge, delayed access to a magistrate. But where these occur, as they do sometimes in practice, a person affected usually has no effective remedy.
There are also unsatisfactory avenues of redress for those who are denied bail. Moreover, the common law provides no rights for an accused to a speedy trial. The common law provides no remedies against discrimination, as it effects women, and this applies also to minority groups and the poor.
The common law provides no remedies for infringements of the right to freedom of association, assembly and movement. These rights are not secured in our system from abrogation or encroachment by statutes and regulations and unreasonably broad inroads have been made into these rights by both statute and common law. Professors Enid Campbell and Harry Whitemore have said that when common law and statute are combined, there is little left of the right to hold a meeting or procession. Sir Alan Herbert said of our common law that the only right a citizen has on a public street is "to walk at a moderate pace, by himself and breathing quietly."
The right of peaceful demonstration is hedged about with innumerable laws, of unreasonable width and giving extremely wide discretionary powers to law enforcement authorities. The exercise of this right depends on a restrained action on the part of law enforcement authorities, a restraint which is not always exercised in a manner which gives those who wish to demonstrate a reasonable opportunity to ventilate public issues. The last decade has shown how important this right is. Demonstrations have been instrumental in bringing home to governments the immorality and unacceptability of policies such as those that were followed in Vietnam.
There are also examples of cases where governments have sought to completely abrogate fundamental rights. An attempt was made to ban the Communist Party in 1950. The rights of certain members of the Australia First Movement were seriously infringed in 1942. Fundamental rights have been suspended during declarations of emergency in Queensland, including the right of freedom of movement to one's hone as occurred during the 1964 Mt. Isa strike. Our system does not measure up to the standards set out in the International Covenant on Civil and Political Rights. It is the purpose of the Human Rights Bill to secure these rights for the Australian people in accordance with the principles laid down in the Covenant. Neither the common law nor our system of responsible government has been effective enough to guarantee these rights. In an era in which the regulation of the affairs of mankind is becoming increasingly complex, effective safeguards against infringements of human rights are required. In this context, the Human Rights Bill will provide a yardstick of standards against which encroachment of rights can be measured.
Today, human rights are not just the States' business or even the nation's business; they are the world's business. The denial of human rights in any country affects the international community. Incidents such as the imprisonment of Bronwyn Trathen in Greece, the expulsion of Alexander Solzhenitsyn from Russia, the shooting of students at Kent University in the U.S.A., have caused waves of concern to flow around the world. And you will notice even in the last few days who when the President of Tanzania was here there were questions raised on both sides of the treatment of minorities and the question of political prisoners.
Human rights are indisputably now a matter of international concern. The events of the Second World War focussed attention on the need to guarantee and secure the rights of the individual. The members of the United Nations have pledged themselves in the United Nations Charter to promote human rights by individual national action as well as by international co-operation.
That the protection of individual rights within national boundaries is unmistakably a subject of legitimate international concern is clearly demonstrated by what has happened at the international level. There was the adoption by the United Nations of the Universal Declaration of Human Rights in 1948. There are many international agreements on the protection of human rights that have followed since then. And there is the impact on international relations that occurs when Human Rights are denied in any one country.
I do not accept that the use of the external affairs power is an improper intrusion into the State arena. The States have manifestly not acted to bring their laws and practices into compliance with the international standards and these standards will not be achieved in Australia unless federal legislation is enacted.
I should now like to deal with some of the underlying features of the Human Rights Bill and the objectives which we sought to achieve by legislation.
I emphasise that it has been necessary for the Bill to follow closely the provisions of the International Covenant. It is necessary to bear in mind that the extent of the constitutional power of the Australian Parliament to pass legislation on this matter is delineated by the area covered by the Covenant. We took the view, however, that the constitutional power of the Australian Parliament would extend to enable the Parliament to make adjustments where this was necessary to avoid repetition, achieve greater clarity and ensure that the Covenant was 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.
The form of the Bill was related to a large extent to the nature of the obligations that are imposed upon nations by the Covenant. Some parts require Parties to create legal rights by legislation. Other parts consist of statements of general principles to which the Nations must subscribe.
The purpose of Part II of the Bill was to establish rights where this was required specifically by the Covenant, such as the right to freedom of assembly and the right to freedom of religion. It was not the purpose of Part II of the Bill to deal with the general principles enunciated in the Covenant. These general principles are, of course, accepted by the Government and this acceptance will be re-inforced when the International Covenant is ratified. The Covenant has, in fact, been incorporated in the Schedule to the Bill and the Bill, when enacted will give approval to ratification of the Covenant by Australia. Australia would be in breach of its obligations under the Covenant if restrictions were introduced that were inconsistent with the principles contained in the Covenant.
These circumstances have resulted in a good deal of misunderstanding about the objectives sought by the Bill. General statements such as 'the family is the natural and fundamental group unit of society' are not statements that would have meaningful effect in legislation. The omission of this general proposition from Part II of the Bill led some to conclude that the Bill involved some sort of attack on the family and protection to the family that were in fact contained in Part II of the Bill were overlooked. One of these provisions, that no-one is subjected to arbitrary or unlawful interference with his family, provides a very important safeguard to the family unit. If I may say, ladies and gentlemen, I was astonished when I met some ecclesiastical gentlemen to discuss the Bill. With them was a distinguished counsel of this city. I was surprised to find that not only orally, but in writing, it was put seriously by the group that when we provided in the Bill exactly what was in the International Covenant that it was the right of men and women of marriageable age to marry and found a family, that that was interpreted as being an attack on the institution of the family; that it was leaving the way open to bigamy. That is only half of it, the worse is to come. It was contended that it was also intended to promote incest. You may find the reasoning behind this a little difficult to understand as I did. But apparently it was being seriously contended that if you provided it was the right of men and women of marriageable age to marry and to found a family, that this was an insidious plot to say that anyone who was of marriageable age could marry and demand the right, notwithstanding that he was already married and that he could marry six others at the same time. And because it was in this form, he could insist upon marrying his own sister or his grandmother, and therefore, this provision was an undermining of the family and an attack upon religion. I think you will be pleased to know that the last one to abandon this theory was the distinguished lawyer; even the ecclesiastics gave it away pretty quickly.
Another misconception that has arisen is the mistaken view that the Covenant established the "right" of parents to ensure the religious and moral education of their children in conformity with their own convictions. What the Covenant does is to require the Nations who are Parties to undertake to have respect for the 'liberty' of parents to ensure the religious education of their children. When the Covenant was debated by the United Nations, the world 'liberty' was preferred to the word 'right' on the ground that the word 'right' might imply an obligation for parties to the Covenant to grant material assistance to private schools. The Australian Parliament cannot, in legislation introduced in reliance on the Covenant, establish legal 'rights' that are not contained in the Covenant.
It was clear from my discussions with church representatives that misunderstandings had arisen on these matters. I am sure that these misunderstandings can be removed in the revision of the Bill.
Another misconception concerns the provisions of the Covenant permitting restrictions of certain rights. The Articles of the Covenant relating to freedom of movement, religion, expression, assembly and association, permit restrictions of those rights on grounds of national security, public safety, public order or public health or for the protection of the rights and freedoms or other. The Bill narrows the circumstances in which restrictions are to be permitted and requires that all such restrictions must be shown in court to be reasonable. We took the view that to permit restrictions on rights to the full extent permitted by these Articles would greatly reduce the content of the rights guaranteed by the Articles and we thought it important that there should be a narrowing of the permissible restriction of rights.
However, these provisions of the Bill have been misunderstood so far as they related to the right to freedom of religion. It has been alleged that the Bill would permit the arbitrary regulation of religious observance. The purpose of the Bill was, of course, to achieve the opposite result, and as drafted would achieve the opposite result. Curiously, may I say to you, that amongst those I saw who protested most vigorously against the elimination of the words 'public order' and 'morals' were those at the conclusion of the discussion who begged me, whatever I did, not to insert those provisions in the Bill, because they came to realise as we do that those words were very wide and would permit perhaps of restrictions which were wider than ought to be tolerated on the freedom of religion.
There is some common ground between the provisions of the Covenant and the guarantees contained in the United States Bill of Rights. Parts of the Human Rights Bill are expressed in similar terms to the United States provisions and we 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 the clause of the Bill that provides that everyone is entitled without any discrimination to equal protection of the law. In the interpretation of this provision in the United States Bill of Rights, their Supreme Court has worked an immeasurable service to the nation not only in the field of race relations but in other areas where discrimination has occurred. Thus, the equal protection doctrine, as applied by judgements of the Court led by Chief Justice Warren, not only led to desegregation in the United States, but also led the way to the removal of elements of discrimination affecting women, prisoners, voters, migrants and other sections of the community.
The proposal for a positive enactment of rights has led to concern that the Bill may in fact cut down existing rights. To that I would say that the Bill will hopefully remove a great deal of confusion about the scope of existing rights. Many of our so-called rights exist under the common law only to the extent that legislatures have not intervened to cut them down. The common law rights are ill-defined, and it is this very vagueness of definition that makes them appear larger than they are. Again, a right is worth little if there is no effective means of enforcing that right.
The enactment of the Bill is intended to put beyond the reach of interference by State Parliament, local government councils and executive regulation at all levels the rights defined in the Bill. While it true that they can be set aside by the Australian Parliament, that is, as long as the Bill is a legislative one and not a constitutional Bill of Rights, there will be strong pressures on the Parliament not to enact legislation inconsistent with the Bill. Moreover, the argument that the Australian Parliament can take away the rights set out in the Bill ignores the fact that to do so would be to act in breach of the international obligation Australia will assume by ratifying the International Covenant.
Sub-clause 5(4) of the Bill is intended to be a legislative expression of the intention that the Bill should not cut down rights, and perhaps I may read it to you. The provision states that the rights and freedoms set out in the Act are in addition to, and not in derogation o, any other rights and freedoms of the individual, whether under the laws of Australia, of the States or of the Territories and that the Act is not intended to exclude to limit the operation of any of those laws in so far as they can operate concurrently with the provisions of the Act.
The Bill is also intended to put positive remedies for breaches of the rights within the reach of those most likely to be affected. The provision of legal aid through the Australian Legal Aid Office, coupled with the function of the office of the Human Rights Commissioner, should give effective relief to many who are now unable to assert existing rights. The Bill provides a variety of legal remedies which may be sought by an aggrieved person. These include an injunction, an order cancelling a contract, 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 enable rights to be enforced in a systematic way and reduce the need for costly litigation. The Bill establishes an Australian Human Rights Commissioner who will have power to investigate infringements of rights on behalf of aggrieved persons. It will be the task of the Commissioner to endeavour to achieve a settlement of the issues by mediation and conciliation. Where this cannot be achieved, the Commissioner will have power to bring proceedings in the courts on behalf of the person. The Commissioner will be an independent authority and his staff will be employed outside the Australian Public Service.
The legislation will also establish an Australian Human Rights Council which will have power to make recommendations on the observance of human rights, the promotion of educational programmes with respect to human rights and other related matters.
I believe that the establishment of the Commissioner will be an important innovation. There are examples of machinery of this kind in the investigation of racial discrimination on a national level and in the investigation of human rights on an international level when recourse at the local level has been exhausted. However, I believe that 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.
When I introduced the Bill in November last year, I said I would welcome comments and proposals for the improvement of the Bill. I have received a number of constructive suggestions, and in the light of the suggestions, I announced last month that certain changes to the legislation were contemplated. What I have in mind is that actions under the Bill will be initiated in the ordinary State courts as well as the proposed new federal Superior Court. I contemplate that safeguards will be introduced against repetitious litigation to avoid a feature of the United States system that is unsatisfactory. I also announced that the Bill would be reviewed to place further emphasis on the role of the Commissioner as conciliator and mediator and that the inclusion of the compulsory evidence-gathering powers of the kind found in a Royal Commissioner and in other pieces of legislation would be reconsidered.
I will continue to welcome constructive and informed suggestions for the improvement of the Bill and all suggestions that are made will be taken into account before the Bill is re-introduced into Parliament.
This Bill represents a great advance in the provision of effective remedies for infringements of liberties but I do not suggest that the introduction of legislation will prevent abuses of power or attempted infringements of rights. As stated by Justice Douglas of the U.S. Supreme Court 'the individual will almost certainly be ploughed under unless he has a well organised active group to speak for himÖ if a powerful sponsor is lacking, individual liberty withers, in spite of flowing (judicial) opinions and resounding constitutional phrases'.
It will therefore be of the utmost importance to mobilise community support to ensure that the remedies afforded by the Bill are utilised. Councils for Civil Liberties and bodies with similar objectives will have an important role to play in achieving this objective. A great service has been performed by the Council in fostering public interest in these ideals and in taking up the cause of individuals whose rights are denied. I congratulate the Council for its past achievements and I look forward to the continuance of this works with renewed vigour.
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'The Racial Discrimination Bill' Address to Leaders of the Migrant Communities in Sydney 9 March 1974
ATTORNEY - GENERAL'S DEPARTMENT
ADDRESS BY THE ATTORNEY-GENERAL OF AUSTRALIA,
SENATOR LIONEL MURPHY, QC
TO LEADERS OF THE MIGRANT COMMUNITIES IN SYDNEY
ON THE RACIAL DISCRIMINATION BILL
March 9, 1974
Ladies and Gentlemen,
I am pleased to have an opportunity of speaking to you about what the Government is doing to assist new settlers in our community.
Migration has had an impact on the Australian community of considerable proportions. One person in every five you see walking down the street was born overseas. It has been estimated that one-third of Australia's total population is linked either directly by birth, or less directly, by family or marriage to the language, culture and traditions of an overseas country.
Migrants have made significant contributions to our national life and it is necessary for the Government to give close and earnest attention to their problems, aspirations and needs. It is also necessary for the Government and the community to study in greater detail the complexity of race relations. For too long has Australia isolated itself from these problems. It must seek a new national unity on these matters and ensure that prejudice and racialism do not form any part of our national identity.
Last year my colleague, the Minister for Immigration, Mr Al Grassby made a detailed statement on Immigration policy to the House of Representatives. He outlined some of the Government's programs that have been or will be launched for the assistance of migrants.
The Minister announced measures he is taking aimed at establishing more effective communication with members of the migrant community. He has therefore substantially increased the funds allocated for training in the English language. He is planning expenditure of over 15 million dollars - an increase of 65 per cent over expenditure in the preceding financial year. The program has many facets - child migrant education, teacher education and training, adult migrant education, home tutor schemes, television programs and the research programs. There are also programs of information and instruction for migrants who can speak a number of languages are being employed to work in migrant communities. It will be their task to go to the migrants, to visit them at home, at work and in their local communities and offer help and guidance. As well as the social worker and welfare officer services of the Department of Immigration, grants are being made to voluntary bodies to enable them to help migrants.
An important new service announced by Mr Grassby is the Emergency Telephone Interpreter Service. Essentially, this is for newcomers who have not yet had time to learn English. This service has been operating since February 1973 in Sydney and Melbourne on a seven day week, 23 hours a day service will be extended to other State capitals as soon as possible.
The Minister also set up Task Forces in all States in order to get as quickly as possible to grassroots problems facing migrants. Reports of these bodies have been invaluable to the Minister in drawing attention to problems which require urgent remedial action in addition to providing guidance on longer term migration objectives.
There is also a Community Relations Committee established to enquires into discrimination against migrants and investigate exploitation of migrants. This Committee and other committees are engaged in a wide range of studies into such matters as the needs of older migrants, the balances of the sexes, interpreting and translating needs and migrant education.
The Minister has also introduced new laws on Australian citizenship that apply without discrimination to people from all countries.
The Government has also provided for the portability of all social security pensions in the event of migrants wishing to return to their former homeland. The old and the sick will be able to go home once more to their friends and relatives and not lose in the process the pensions which they have earned by years of hard work in Australia.
I turn now to outline some of the measures that I, as Attorney-General, have been taking to assist migrants.
I have already removed these extraordinary discriminatory provisions of the Crimes Act which enabled migrants to be deported in certain circumstances from this country even though naturalised.
I have been taking a number of steps over the past few months to ensure that migrants, along with all other Australians, can enjoy a free and safe and peaceful existence in this country, free of intimidation and free of organised violence. People have a right to live here safe from the feuds and enmities, safe from the passions and violence, which so many have tried to leave behind them in making a new home in this country. Australia must not be used as a haven for those who would transfer here their ancient quarrels and refuse to let their compatriots live in peace.
I would like to mention in detail measures concerning the area of civil liberties and human rights for which I am responsible.
The promotion of respect for fundamental rights and freedoms and the elimination of racial discrimination occupies a very important place in the policy of the Australian Government. The Government supports the leadership taken by the United Nations in this field.
The United Nations Charter is based on the principles of the dignity and equality that exists in all human beings. It has been one of the great achievements of the United Nations that these principles have been developed in a number of international human rights agreements.
I shall mention three of these agreements. In the first place, you will all be aware of the Universal Declaration of Human Rights which was adopted just over 25 years ago. The Universal Declaration says in its first article that all human beings are born free and equal in dignity and rights and goes on to say that everyone is entitled to rights and freedoms without distinction of any kind, including discrimination on grounds of race, colour and national origin.
Secondly, there is the International Convention on the Elimination of All Forms of Racial Discrimination which was adopted by the United Nations in 1965. This Convention recognises that any doctrine of superiority based on racial condemned, socially unjust and dangerous and without any justification whatsoever.
Thirdly, there is the International Covenant on Civil and Political Rights, which was adopted by the United Nations in 1966. This turns the general language of the Universal Declaration into a much more precise set of legal obligations.
Australia has now signed this Covenant as well as the Racial Discrimination one and is in the process of making these international obligations part of the law of this country so that every citizen can take advantage of the rights and protection's for which they provide. To do this I introduced into the Australian Parliament two very important pieces of legislation - the Human Rights Bill, the purpose of which is to implement the International Covenant on Civil and Political Rights, and second, the Racial Discrimination Bill, the purpose of which is to implement the Convention against Racial Discrimination.
The Australian Government is introducing these laws in reliance on the power which it has under the Australian Constitution to make laws with respect to external affairs. The Bills have therefore following closely the actual provisions of the Covenant and the Convention. I mention this because there may be some things you would have liked to have been dealt with in the Bills, but which have not been included. However, in legislation relying on these International agreements, it is not possible to introduce matters that are not covered in substance in the agreements or which do not fall within the machinery necessary to give effect to them.
It is the purpose of this legislation to guarantee fundamental rights and freedoms of all and to make racial discrimination unlawful.
Both the Human Rights Bill and the Racial Discrimination Bill will apply to discrimination based on race, colour, language, national or social origin, birth or other status.
I want to mention in particular clause 8 of the Human Rights Bill which provides that everyone is entitled without any discrimination to the equal protection of the law. This guarantee is similar to a constitutional guarantee contained in the United States Constitution. The guarantee, as interpreted by the United States Supreme Court, has been of great benefit to minority groups in the United States community, including migrants who are not yet citizens. I also draw your attention to the following guarantees contained in the Bill-
• Clause 9, which provides that persons belonging to ethnic or linguistic minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture or to use their own language.
• Clause 17, which contains guarantee concerning the review of decisions to expel aliens lawfully in Australia.
• Clause 20, which provides, among other things, that when a person is charged with an offence, the nature of the charge is to be made known to him in a language that he understands, and
• Clause 25 also provides that in the determination of a criminal charge a person is entitled to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
I want to give you now a brief description of the basic features of the Racial Discrimination Bill. Clause 8 of the Bill outlaws racial discrimination. It makes it unlawful for a person to do any act involving discrimination based on race, colour, descent or national or ethnic origin, which impairs the enjoyment of fundamental rights and freedoms.
Clause 9 of the Bill guarantees equality before the law without discrimination based on race or national origin. The clause will make it impossible to deny rights to the members of a particular race or national origin, where those rights have been given to persons of another race or a different national origin. The Bill goes on to deal in greater detail with discrimination in the enjoyment of rights on grounds of race, colour or national or ethnic origin. The Bill deals with discrimination so far as it concerns-
• Access to places and facilities,
• The provision of land, housing and other accommodation,
• The provision of goods and services,
• The right to join trade unions, and
• The important aspect of discrimination in employment.
I should explain that the Bill will apply to discrimination that is made on the basis of race, colour or national or ethnic origin. This is the basis on which most discrimination is made against migrant people. However, the Bill will not apply to distinctions made between citizens and non-citizens. The International Convention does not apply to distinctions made on this basis.
Discrimination made against a person purely on the ground that he is a migrant is, as I have said, not covered by the Convention, but I am considering whether parts of the Bill could apply to distinctions made on this basis, relying on other powers that the Australian Parliament has under the Constitution.
Both the Human Rights Bill and the Racial Discrimination Bill recognise that it would be futile to grant rights unless there was 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. The courts will be empowered to grant a variety of remedies, including 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.
Secondly, the Human Rights Bill will establish an Australian Human Rights Commissioner and the Racial Discrimination Bill will establish an Australian Race Relations Commissioner who will have power to investigate infringements of rights on behalf of an aggrieved person. It will be the task of the Commissioner to endeavour to achieve a settlement of the issues by mediation and conciliation. Where this cannot be achieved, the Commissioner will have power to bring proceedings in the courts on behalf of an aggrieved person.
An Australian Human Rights Council and a Race Relations Council will also be established by the legislation. These bodies will have power to make recommendations on the observance of human rights, and the elimination of racial discrimination, respectively. They will also have power to make recommendations with respect to the provision of educational programs and related matters. It is my intention that the Councils should have a wide representation from the community, including migrant organisations and that the Councils should have the maximum opportunities to present their views consideration improvements to these provisions to extend the functions of the Council. I purpose that the Council will advise on research programs that should be undertaken and the dissemination of material designed to promote the observance of human rights and assist in the elimination of racial discrimination.
The changing of community attitudes will be a vital part of the Government's program. The very existence of the new legislation will have a great educational value.
It will serve to make people aware of their rights and by identifying rights it will be easier to know when they are being denied. In addition, the fact that racial discrimination will be unlawful will have an important persuasive and educative effect. If racial discrimination is unlawful it will be easier for people to resist social pressures that result in discrimination.
In the fulfilment of Australia's international obligations under these International Conventions, it will be important for Australia to emphasise educational and research programs and programs designed to change community attitudes. The Racial Discrimination Convention provides that measure must be taken in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promotion understanding, tolerance and friendship among racial or ethnic groups.
In fulfilment of this undertaking, my Government will promote education programs, foster the production of publications, convene seminars and adopt all other means appropriate to assist in changing community attitudes that result in prejudice.
We recognise that anti-discrimination laws cannot operate in a vacuum. They must be accompanied by positive Government programs designed to bridge the gaps that result in racial tensions. The programs must enlist the support of the community because public awareness of this problem will be of vital importance in achieving the objects of the Government's policy.
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'Address by Attorney-General of Australia, the Honourable Lionel Murphy Q.C., to the United Nations Association of Australia, Human Rights Seminar'. Sydney. 20 April 1974
ADDRESS BY ATTORNEY-GENERAL OF AUSTRALIA,
THE HONOURABLE LIONEL MURPHY Q.C., TO THE
UNITED NATIONS ASSOCIATIONS OF AUSTRALIA,
HUMAN RIGHTS SEMINAR
SYDNEY, APRIL 20, 1974
MR. CHAIRMAN, LADIES AND GENTLEMEN
It is with great pleasure that I have accepted your invitation to speak to you tonight on the United Nations and Human Rights. The United Nations Association has long been interested in promoting the implementation in Australia of Statements of Human Rights developed by the United Nations.
The working conference on the ratification of The International Covenants On Human Rights held in February 1969 was the direct result of initiative taken by the United Nations Association. The conference was organised by a committee in which more than 100 non-governmental organisations in Australia participated. Those organisations covered a wide range of community interest and many shades of political opinion.
The conference recommended that the Australian government should proceed to the ratification of the international Covenants. It was conscious of the special problems created by the Federal system in Australia 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 ambit of the external affairs power of the constitution. The conference recognised the value of entrenching in legal form specific fundamental human rights in a manner consonant with the international standards, and resolved that consideration should be given to incorporating a Bill of Rights in the Australian constitution.
Now, some five years later, the United Nations Association has convened the present seminar. The seminar takes place in the context of the debate in human rights that has followed the introduction of a Human Rights Bill last year. As in 1969, a wide spectrum of interests is again represented.
The Labor government is firmly committed to the protection of human rights in Australia. The ultimate goal must be a constitutional Bill of Rights. But that is necessarily some distance away, and the government has already taken those practical steps open to it under existing constitutional powers.
It is also the policy of the government that the international covenants on human rights should be ratified and implemented by Australia and that Australia should press for the world wide adoption of these covenants. One of the first acts of the government when it took office in 1972 was to sign the covenants. This was followed by the introduction, on 21 November 1973, of the human Rights Bill, the main purpose of which was to implement the covenant on Civil and Political Rights. The covenant relating to economic, social and cultural rights, requires nations to progressively implement its terms. In contrast, the covenant on civil and political rights requires nations to implement its terms forthwith.
For centuries men have believed that the recognition of fundamental rights and freedoms forms an indispensable basis for the development of human personality and civilised communities. However, at no time in our history has both the denial and the recognition of fundamental rights been brought into sharper contrast than in the last forty years. The second World War and the events leading to it focussed attention on the need to secure these rights on an international as well as national basis.
It is useful at this distance in time to recall the setting in which the immediate post-war meetings to form the United Nations took place. There had been a denial of human rights on a scale almost without precedent in history. There had been genocide, forced labour, deprivation of political rights, arbitrary arrest, confiscation of property, detention without trial and imprisonment on a large scale of those convicted of vague political offences.
Out of all of this emerged an international concern for the protection and preservation of rights and freedoms. It had become clear that the denial of basic rights to the citizens of a country was a step in the climb to power of those who would endanger world peace. Concerted international action was therefore seen as necessary to ensure that peace would not be endangered through the denial of rights in any country.
Thus what was once a matter of purely national concern has, with the adoption of the United Nations Charter in 1945, become a matter of international concern. The United Nations Charter proclaims that one of the purposes of the United Nations is to achieve international cooperation in 'promoting and encouraging respect for human rights and fundamental freedoms for all without distinction'. In article 55 and 56 of the Charter, the members of the United Nations have pledged themselves to take action, in cooperation with the United Nations Organisation, for the promotion of universal respect for, and observance of, these rights. They have pledged themselves to take this action both 'separately' and 'jointly' - that is to say, by individual national action as well as by actions of international cooperation. Some of the delegations to the San Francisco conference which drew up the U.N. Charter considered that the Charter itself should contain an international Bill of Rights. While such a Bill was not included in the Charter, work was commenced immediately on this task by the Commission on Human Rights on its establishment.
In 1946 the Commission decided that an International Bill of Rights 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 international machinery to secure the effective observance of the obligations. Two years later, in 1948, the General Assembly of the United Nations adopted the Universal Declaration of Human Rights.
The second and third stages of the international Bill were reached in1966, with the adoption by the United Nations General Assembly of the International Covenants on Human Rights, consisting of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, and the adoption of the optional Protocol to the Latter Covenant.
The International Covenant on Civil and Political Rights, which was adopted unanimously by more than 100 countries, including Australia, was the result of nearly twenty years effort. It was the subject of intensive debate over this period and it represents the consensus of international thinking on the matters falling within its scope. The Covenant has had a profound influence on other international agreements and on the National Constitutions of many countries. The development of their series of comprehensive international instruments on human rights must be regarded as one of the great achievements of the United Nations.
Unfortunately, basic rights and freedoms are still denied on a large scale in many countries. Apartheid, racial discrimination, political trials, arbitrary arrest, suppression of dissenting opinion are all too frequent in many countries. They are however, a matter of great international concern because the existence of these infringements of rights continues to pose a threat to the maintenance of world peace and order. Only by the continued efforts, both at the national and the international level, of those who believe in freedom, can the area within which rights are effectively guaranteed be enlarged.
I turn now to the application of these principles at the national level in Australia. I have already said what has been done by the present government since it took office in 1972. While these steps have been taken in fulfilment of the programme of the A.L.P. Government, they do not represent a partisan political approach. Both Liberal and Labor governments in Australia have, since 1945, supported in the United Nations the development of the International Instruments on Human Rights. There is not, I think, any real opposition in Australia to ratification of the two International Covenants. The debate that has followed the introduction of the human Rights Bill has centred on the following points:
• Whether any change in Australian law is required to give effect to the covenant in Civil and Political Rights.
• Whether a Bill of Rights, either entrenched in the constitution or in legislative form, is a desirable way to protect human rights and civil liberties.
• Whether the external affairs power should be used to give effect to the covenant in Australia.
• Whether the Human Rights Bill is adequate for its purpose.
I deal first with the question whether any change in Australian law is required. I want to say firmly that I believe changes are required if effect is to be given to the Covenant.
Much has been said about the Common Law in Australia already giving those rights which the Covenant required. Because there seems to be in some quarters almost a blind faith in the magic of the Common Law, it needs to be said and said again that the Common Law itself cannot guarantee individual liberty against legislative intrusion. What rights are given by the Common Law can be and have been repeatedly overridden by parliaments and by local government councils. But more important still, the common law itself does not always operate to the benefit of those who stand most in need of protection.
I have already given, in other places, examples of the way in which legislation in Australia has cut across rights otherwise enjoyed under the Common Law. Let me remind you again of some of them:
• There was a decision by a shire council in Western Australia to levy a rate to finance the building of a non-denominational place of worship. This cut across the religious freedom of the ratepayers in the shire, the High Court upheld the power of the council to levy the rate under the Local Government Act in Western Australia. I understand that the Act has since been amended to prevent a repetition of the incident.
• Acting under emergency powers legislation in 1964, during the Mount Isa strike, the Queensland government prevented union members from returning to their homes in Mount Isa. That legislation is still on the Statute Book.
• During a debate on abortion last year in the House of Representatives, a large and peaceful demonstration was held outside Parliament House in Canberra by opponents of the measure being discussed. Had the government wished to prevent the demonstration, it could lawfully have acted to disperse the demonstrators under laws in force in the A.C.T. Lest you think there is something special in the A.C.T. situation, I should tell you that such a demonstration could not have taken place in the vicinity of the parliaments of at least some, if not all, of the states without a favourable exercise of executive or police discretion.
• There are at least two jurisdictions in Australia where police may lawfully enter premises under a general search warrant, which is authorised by statute but which would have been unlawful at Common law.
• Special laws applying to reserves under the Queensland Aborigines and Torres Strait Islanders Acts leave those whose homes are on the reserves to the discretion of officials in respect of conduct on the reserves, and even the right to be there. It is no answer to say, as the Queensland government says, that these laws have been enacted at the request of the Aborigines and Islanders. It is not a satisfactory situation when a disadvantaged minority may contract out of rights enjoyed by the community at large.
These are cases where Common Law freedoms have been set aside by statute. But there are important areas where the Common Law has not recognised rights now regarded as significant, or where it operates positively to deny fundamental rights.
• The Common Law, as interpreted by the High Court, denies any general right of privacy. Thus the Common Law gives little protection against the growth of eavesdropping and prying by government departments, law enforcement authorities, business organisations and the communications media.
• The Common Law emphasis on freedom of contract and the sanctity of contract operates most harshly against those who, by lack of education or bargaining power or other disadvantage, stand most in need of protection. We only have to look at the way in which the Common Law upheld the rights of owners of mines and factories in the 19th century to engage children of tender age to work for 16 hours or more a day to see how the Common Law in fact has operated in a particular situation. When trade unions were formed to give the worker some bargaining power, the Common Law said that the trade unions were illegal because they stood in restraint of trade. The rights and freedoms that are now enjoyed in the industrial field are enjoyed only because the legislature stepped in to set aside the Common Law.
• The Common Law offers little protection to a man on a criminal charge against whom evidence has been obtained unlawfully. It is true that the judge has a discretion to refuse to admit evidence of this kind if he considers it to be unduly prejudicial to the defendant. It is true also that this is a discretion that is rarely exercised.
• According to the Common Law, a person may be legally represented in court. But the Common Law does not give substance to this right by guaranteeing him representation in a case where he cannot afford to pay the fees. He is left to often inadequate Legal Aid schemes or to depend on the generosity of the legal profession.
• One could go on multiplying examples of the way in which the Common Law fails effectively to guarantee the rights specified in the Covenant on Civil and Political Rights. Let me say that I regard it as a great danger to the protection of rights in Australia to believe that they are adequately protected by the Common Law and that we need take no further action to give effective substance to those rights.
As a further development of the heresy that the Common Law gives adequate protection, it is argued that the legislative expression of rights cuts down in some way the rights we already enjoy. Three things need to be said about this proposition.
In the first place, I have already demonstrated to you that it is fallacious to believe that rights are already adequately protected.
The second thing is that history has demonstrated time and time again that giving written expression to rights is the best way of safeguarding them. The Barons of England, who insisted that their rights be set down by King John in Magna Carta, later interpreted by the courts to extend to all, were quite sure that this was the best way to safeguard those rights against unwarranted executive intrusion. The framers of the Bill of Rights in 1689 were in no doubt that written expression was necessary to guarantee rights against intrusion by King and parliament. Not only were those who drafted the American Bill of Rights satisfied that this was necessary, but we have seen in the last 20 years how the United States Supreme Court under Chief Justice Warren was able to mine from that lode practical guarantees of equality and freedom in American society.
The third thing is that it is possible to ensure by suitable drafting that existing rights are not cut down by legislative enactment of specified rights. This has bee done in the Human Rights Bill.
Then the idea has been given currency that the Human Rights Bill itself would authorise legislative and executive intrusion into existing rights. This seems to me to have resulted in part from a genuine misunderstanding of the language of the Bill. But in part it has also come about by a deliberate campaign by those who oppose the Bill, indeed, those who oppose the whole concept that there should be guarantees of rights.
However desirable it might be in theory, it is not practicable to state rights in absolute terms that admit of no exceptions. Freedom of expression must be qualified by reasonable laws of defamation, by the need to preserve the peace - to use an old-fashioned phrase. Freedom of Assembly cannot be absolute; life would be impossible if a procession could be held in George Street in a peak traffic period.
The International Covenant itself, because it was drafted to attract the maximum support, permits national legislation to make extensive derogations from the fundamental rights stated in the Covenant. The Human Rights Bill also permits derogations, but much less extensively than the Covenant. The language used in the Bill in spelling out the derogations that may be permitted has given rise to misunderstanding. It has, for example, been believed that the Bill confers power on the Governor-General to make regulations that would detract from the rights specified. This is a complete misunderstanding of the purpose of the regulation-making power in the Bill and the language of the Bill will be revised before it is re-introduced to remove, so far as is reasonably possible, the source of these misunderstandings. But the proposition that the Bill itself constitutes a reduction of existing liberty is completely fallacious. I have already said enough to demonstrate how, in the absence of written guarantees binding on legislative bodies acting within their competence, existing rights, whether given by the Common Law or by legislation, may be set aside.
True it is that a Human Rights Act of the Australian Parliament does not bind that parliament. This is another argument used by opponents of the Bill. An Act of the Australian parliament would, however, bind state, territory and local government legislative bodies. It would nullify contrary regulations made under Acts of the Australian Parliament, and, as the experience of the Senate Standing Committee on Ordinances and Regulations has shown, it is often in subordinate legislation where quite unthinkingly substantial inroads are made into ordinary rights and freedoms. Although the Australian Parliament would itself be able to override a Human Rights Act, that Act would provide a valuable touchstone in judging the quality of other legislation and there would be considerable resistance to any Bill which appeared to detract from the operation of a Human Rights Act.
Moreover, the operation in practice of a Human Rights Act would enable the courts to work out, in practical terms and case by case, the principles contained in it and so provide a surer guidance for the draftsmen of a Constitutional Bill of Rights when we are eventually able to tackle that task. Thus the enactment of a Human Rights Act by the Australian parliament would be a valuable first step towards the ultimate goal of entrenching a Bill of Rights in the Australian Constitution.
I do not want to say a great deal on the question whether the Australian Parliament should be asked to legislate on the basis of the external affairs power. This is not the occasion to engage in a detailed legal argument. I believe that the subject matter of a Bill based on the International Covenant deals with a matter that is, to apply a test required by the High Court, indisputably international in character. The continued international concern over the protection of human rights within national boundaries is, I believe, ample demonstration of the international character of the subject matter. It must, of course, be acknowledged that in no case so far has the High Court had to grapple with the question whether legislation that does not involve reciprocal or mutual rights or obligations between Australia and another country can be supported under the external affairs power. But it would indeed be a fetter on our national sovereignty in the family of nations if the national parliament could not implement the terms of a multi-lateral treaty solemnly drawn up after negotiations lasting many years and supported by successive Australian governments.
Apart from the question of constitutional power, there is the argument that it should be left to the state parliaments to ensure that these laws give effect to the Covenant. There are two short answers to that argument. First, if state laws do in fact conform to the Covenant, then federal legislation embodying the Covenant could not give any ground for legitimate complaint about interference in state matters. But state laws do not, of course, satisfy the requirements of the Covenant, and that brings me to the second answer. The states have not, in fact, acted in a comprehensive way to ensure conformity with the covenant. Only now, for example are some states getting around to giving a general right of privacy. This is being done in South Australia and Tasmania, but not elsewhere.
Finally there is the argument that the Bill is inadequate. This is presented from two angles. First, some want more rights written in than are in the covenant. This we cannot do if we are to rely on the external affairs power. Secondly, others say that the draftsman has departed too far from the terms of the covenant. I have dealt with much of this argument elsewhere, and I do not want to repeat it now. All that I need say now is that I am re-examining the terms of the bill in the light of the criticisms that have been made, and that I would be glad to receive any proposals to improve the bill that may emerge from the seminar.
I return to my topic of the United Nations and Human Rights. Regrettably, as I have said, the practice of many nations falls short, in varying degrees, of the standards set by the united Nations. Regrettably, also, there are not yet enough ratifications of the international covenants to bring them into force. Regrettably, again Australia has lagged in this respect.
The present government is determined that this situation should change. It is determined that Australian society should be more free and more just. It is determined not only that the international covenant on civil and political rights should be ratified and implemented in Australia but also that Australia should take an international lead in this important field which has so much bearing on the preservation of international legal order and world peace.
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'Opening of the Australian Legal Aid Office, Brunswick, Victoria' July 19 1974
OPENING OF THE AUSTRALIAN LEGAL AID
OFFICE, BRUNSWICK. VICTORIA
Address by the Attorney-General of
Australia, Senator Lionel Murphy, Q.C.
July 19, 1974
I am pleased to welcome you to the opening of this Australian Legal Aid Office at Brunswick.
Australian Legal Aid Offices are already operating in the capital cities of every State. Now, community legal offices are being opened in the suburbs and in towns and regional centres throughout Australia so that they will be in easy reach of people who need the services of lawyers. I have opened a community legal office in each State and this will be the second in Victoria. The first was at Sunshine.
We all know that there are substantial areas of unmet need on the part of ordinary people for access to the law and legal process. To be denied such access is to be denied justice. It is the policy of the Australian Government to ensure that no person in Australia is disadvantaged because of limited financial means. The establishment of the Australian Legal Aid Office is a major step in the Government's objective of ensuring that legal aid is readily and equally available to all citizens. Community legal offices such as this office at Brunswick will play a most effective part in bringing the law to the people.
The problem of reaching people in need, of bringing the law to the people - particularly disadvantaged people - constitutes one of the great obstacles in providing a system of legal aid readily and equally available to all. It is to overcome this problem that the Australian Government is establishing unpretentious community offices such as this 'storefront' legal office at Brunswick. By opening an office here the Australian Government will be bringing to this area, where people live and work, the services of the Australian Legal Aid Office. The office will be open as necessary to meet people's needs so that they can consult lawyers without having to take time away from work.
I understand that over 51,000 people live in Brunswick with a very high proportion of people who have recently arrived from overseas to make a new life in Australia. The facilities and protection of Australian law, of which we are justly proud, must be placed within easy reach of these people. This office will fill that need. In the Brunswick office, as in all other Australian Legal Aid Offices established by the Australian Government, any person entitled to use its services will receive legal advice and assistance as a right - not as a charity. He or she may approach the office with dignity and with confidence.
The office will provide a service of legal advice designed to solve people's problems. This service will be provided by lawyers skilled in the fields of law that most affect the ordinary citizen and will be available to all persons with an element of need. My attention has frequently been drawn to the special problems that confront the newcomer to Australia as well as the problems that worry disadvantaged persons such as those receiving social services; also the problems of students and other young people who are struggling with financial commitments and accommodation difficulties. Solving these problems will be a major role of this office.
Subject to a 'means and needs' test, the office will also provide assistance, including the conduct of litigation, in matters arising -
• Under federal law, including family law - to all persons; and
• Under State or federal law - to persons for whom the Australian Government has a special responsibility such as those in receipt of social services, aborigines, ex-servicemen and newcomers to Australia.
The 'means and needs' test for assistance in litigation is inability to afford the cost or representation. Those who can appropriately engage private lawyers must continue to do so.
An important function that this office and other regional offices will perform is that of 'duty lawyer' in the local Court of Petty Sessions. One of the 'storefront' lawyers of the office will attend the Court here daily to advise persons in custody and deal with matters such as bail, adjournments, and pleas of guilty. I regard the function of 'duty lawyer' as important in preventing miscarriages of justice. There is no doubt that many persons charged with offences plead guilty because of the absence of advice and representation. I shall be looking for early reports from the Brunswick office about its 'duty lawyer' work.
The office at Brunswick will be staffed by two 'storefront' lawyers who are here today, Mr. Andrew Crockett and Mr. Jim Galatis. Mr. Crockett is an able and active young man who has had wide experience in private practice with legal problems of the kind that are likely to be brought into this office. Mr. Galatis has been practising with the Australian Legal Aid Office at Sunshine and has already shown himself to be the kind of young lawyer who will be a great asset to this office in Brunswick. He has the added advantage of being able to speak fluent Greek. The Greek ethnic group is an important part of the Australian community in Brunswick and I am pleased that that group is represented here today. I am equally pleased that other ethnic groups are represented here, too, because Australia is one nation with its people originating from many parts of the world all entitled equally to the protection and use of the law. I wish to extend my thanks to the officers of my Department and other Departments who have made possible the opening of this office today. I mention in particular Mr. Bill Dunkin.
The Australian Legal Aid Office will not alone provide the answer to the problem of providing better legal aid. There are clearly areas in which legal aid can best be provided by a salaried service of lawyers skilled in the fields of law that most affect the ordinary citizen. In other areas, legal aid can best be provided by utilising the talents of the private legal profession. The Government has recognised this by making in the last financial year the first ever grant - of $2 million - by an Australian Government to supplement existing legal aid schemes conducted by law societies and law institutes in all States. I shall shortly be considering proposals by them for further grants for this financial year.
The other Australian Government initiative, with which you will be familiar, is the funding, through the Minister for Aboriginal Affairs, of Aboriginal Legal Services throughout Australia. The Australian Legal Aid Office will cooperate with these services.
I look forward to a rewarding partnership between this office and the private legal practitioners of the area. While the lawyers of the office will perform the basic function of 'duty lawyer' and handle some matters in the court of Petty Sessions, a major role in handling defended matters will need to be carried by the private legal practitioner. Cases will be referred and fees will be paid by the Australian Legal Aid Office. I hold firm views about the necessity for a strong and independent legal profession that can stand between the Government and the citizen, not lest in the fields of human rights, civil liberties and criminal matters generally.
There are a number of other ways in which the Australian Legal Aid Office and Private Legal Practitioners can work together. One such way is for 'storefront' offices such as this to be used by community welfare organisations and private legal practitioners for the conduct of evening referral or advice services. I am pleased to be able to announce that community welfare organisations and private practitioners of Brunswick have already met, talked with my officers and decided to conduct an evening community service in this Office. I congratulate them. Their prompt action is an example of cooperation that will, I hope, be followed wherever Australian Legal Aid Offices are opened. Such cooperation can only be of benefit to the citizen in the provision of better and more convenient legal aid.
I am impressed that a number of non-lawyer volunteers have come forward and offered to help in the evening community service. These volunteers come from varying fields of welfare and I am sure it will be a worthwhile community service to have them working in conjunction with, and indeed within, the Office. So many of the problems that are brought to the door of the lawyer are not legal problems at all. Nevertheless, they call for professional expertise. It is time that the lawyer recognised that he is a layman in fields such as marriage guidance and social work and made way for professionals in those fields. Over the next few months I shall be opening regional offices such as this one, at Geelong and Broadmeadows. The first country 'storefront' office will be at Bendigo. I am considering suitable locations for other offices in Victoria and I shall be seeking the views of local community organisations. New premises for the Victorian branch office in the centre of the city of Melbourne will be opened shortly. In the other States a similar chain of offices is being established to provide a service of legal aid that will be equally available throughout the nation.
In conclusion, I issue an invitation for participation in the work of this Legal Aid Centre by all persons interested in solving the problems of the citizen.
I have pleasure in declaring open the Brunswick Australian Legal Aid Office.
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'Consumer Protection Laws' Address by the Attorney-General, Senator Lionel Murphy, at the Australian Institute of Management's 21st Anniversary National Marketing Conference,15 November 1974.
CONSUMER PROTECTION LAWS
Speech, Senator L. Murphy, 15 November 1974
The following is the text of an address by the Attorney-General, Senator Lionel Murphy, at the Australian Institute of Management's 21st Anniversary National Marketing Conference.
You are considering at this conference the part that the Trade Practices Act will play in changing market environment. The environment in which you make your marketing decisions has changed markedly in recent years. The passage of the Trade Practices Act will lead to further changes. As the impact of the Act becomes fully evident, business will need new responses.
I will be speaking today about the responses open to you as marketing executives. I don not intend to guide you through the Act section by section as I am sure that you have already covered that ground. The Trade Practices Act will affect every decision you make dealing with product development, pricing, promotion and distribution. The Act will also regulate trade relations with your competitors.
This new environment is not one of dead ends and undue restriction. It is one of new horizons, unbounded by arbitrary restriction. The firm that responds with innovation, drive and competitive vigour will be rewarded with increased sales and customers.
There are other changes taking place in the market, especially in the character of your customers, the Australian consumers.
Consumers are now better educated, better organised, more discriminating in their purchases and more concerned to get value for money than in the past. They are more aware of their rights and have greater access to legal assistance through legal aid services.
The world wide problem of inflation has led consumers to become more discriminating in their purchases. They wan information about the performance or function of products offered for sale. They expect those products to be of a reasonable quality and to perform the tasks for which they are purchased. Consumers, without question, expect the products they buy to be safe.
A large number of organisations actively concerned with consumer interests have sprung up across the country. These organisations are contributing to the development of greater consumer awareness. They also perform a 'watchdog' function over industry practices and provide an indicator of consumer thinking.
The Australian Government has encouraged these consumer bodies to join together in a national Federation to provide a broadly based forum of consumer opinion. The Australian Federation of Consumer Organisations was formed earlier this year. Some fifty consumer bodies are associated with the Federation and the number is growing.
The Trade Practices Act will ensure that consumers are better informed. The Trade Practices Commission will receive consumer complaints and it will carry out research into consumer affairs. It will amass a vast quantity of information o market practices.
The Trade Practices Commission has a statutory function to make available to the public general information affecting the interests of consumers.
The Commissioner will also be concerned with consumer education and it will conduct enquiries into the need for changes in the laws for the protection of consumers.
In addition to the supply of information from the Commission, the Act provides for the making of mandatory Consumer Product Information standards. These will be labelling or marketing standards.
Specified information will have to be displayed on the product on the showroom floor. The purpose of these standards is to give consumers information about the quantity, quality, nature or value of goods. In scope the standards cover information of performance, composition, contents, design, construction, finish or packaging of goods. With this type of information, consumers can make proper comparisons between competing products.
Under the legislation, the individual consumer as well as the Trade Practices Commission, can take legal action against firms in breach of the law. The legislation makes it possible for consumers to take self-help action. Private rights of action would, in many cases, be meaningless for consumers without the availability of adequate legal aid. Legal aid is now available on a much wider scale than before.
The Australian Legal Aid Office, which is opening branch offices throughout the country, will give consumers greater access to legal help. Consumers will be able to receive advice on consumer transactions. The Legal Aid Office will go to court for consumers when necessary.
The Trade Practices Act itself makes provision for legal aid in appropriate cases.
What are the implications for the Marketing Executive of these changes in consumer attitudes and legal requirements? The products you develop in the future will come under the most intensive and critical examination yet experienced in the market place.
Every marketing executive will be faced with a number of questions in developing and marketing new products. Is the product safe and will it comply with any consumer product safety standard? Will the product do the job it is designed for and are you prepared to stand behind it? Is the consumer given enough information about the product to know what he is buying and does that information comply with any consumer product information standard? Will a product be capable of being advertised and sold on its merits?
Safety standards will be prescribed under the Trade Practices Act in relation to particular consumer products. Under the Act, the Government will lay down safety standards for products covering performance, composition, contents, design, construction, finish or packaging of the goods and the form and content, markings, warnings or instructions accompanying the goods.
The development of safety standards is in line with the developments in other countries. In the United States, for example, the Consumer Product Safety Act came into operation in 1972. It provides for uniform and effective safety regulations at the national level.
The legislation followed a report from the National Commission on Product Safety which disclosed that each year, 20 million Americans are injured in their own homes from unsafe products.
Of those injured 110,000 are permanently disabled and 30,000 died. The annual cost of product related injuries was estimated to exceed $5.5 billion.
The law now requires that a product is a reasonable quality and will do the job for which it is designed. The Trade Practices Act ensures that certain conditions and warranties are implied into consumer transactions. It prevents a business from avoiding these conditions and warranties by 'fine print' exclusion clauses.
The mandatory conditions and warranties go to the merchantability of products, that is, the quality and finish of a product taking into account the price paid. They also go to the fitness of a product for the purpose for which it is acquired, and to conformity of a product to sample or description.
The provisions of the Trade Practices Act have a direct impact on advertising and selling methods. I recognise, as well as you do, the essential part that advertising plays in the marketing of a product in our economy. Consistent with this, I believe that the new requirements will open the way for creative and constructive advertising. I recognise too that the new requirements give legal effect to standards that many advertisers adhered to previously under voluntary codes.
A business that is prepared to be candid in informing the consumer about its product has nothing to fear. There will be full opportunity for aggressive marketing of products on their merits.
As marketers, you will be concerned also with the provisions dealing with restrictive trade practices. These provisions aim to cover all significant ways in which businesses can stifle competition.
Businesses will have to take more individual decisions where previously they may have adhered to traditional industry arrangements. They will have to question various comfortable arrangements that may have grown up between them and their competitors.
Price fixing agreements have been illegal since 1 October this year. Businesses might ask themselves whether these agreements were beneficial to them in any event. Were these price fixing agreements holding back sales because there was no incentive for customers to shop around for the best prices or the best products? There will be new opportunities for selling on the basis of quality and price.
Similarly, other restrictive arrangements that become unlawful under the legislation, such as market sharing arrangements, may have been holding back a firm with the capacity and potential to grow. Collective boycotts and other arrangements designed to maintain the status quo in an industry may have prevented the introduction of new ideas and methods that, in the long term, would have re-vitalised and benefited the whole industry.
Marketing executives will also be required to consider carefully any discrimination in prices as between customers. The legislation does not mean that a business cannot charge different prices to different customers. Where a variation in price to a particular customer reflects savings in the costs of manufacture, distribution, sale or delivery through a bulk order, for example, there is no problem. Similarly, a business is free to meet a price offered by a competitor.
In the absence of that kind of justification, a business will need to consider whether the price difference is likely to have the effect of substantially lessening competition. If it is likely to have that effect, the discrimination in price will be unlawful. The price discrimination provisions give a supplier protection from the powerful buyer who has the muscle to prise unjustifiably large discounts from him, discounts that will often in effect be subsidised by smaller buyers. The threat that if there is no discount there will be no sale will, in some circumstances, become unlawful.
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'Some Thoughts on the Philosophy of Company Law' Conference of the Australian Council of Chartered Secretaries and Administrators 25 November Australian Government Digest 1.10.74-31.12.74 :1095-1105
SOME THOUGHTS ON THE PHILOSOPHY OF COMPANY LAW
Speech, Senator L. Murphy, 25 November 1974
The following is the text of a research paper prepared by the Attorney-General, Senator Lionel Murphy, for the Conference of the Australian Council of Chartered Secretaries and Administrators held in Hobart.
In the concluding paragraphs of his Introduction to the Philosophy of Law Roscoe Pound reminds us that, at the turn of the century, sociologists were saying that social control, through law, having put down force in the relations of men with each other must now take the further step of putting down cunning.
I am sure there are many in the Australian community in recent years who, having suffered from the cunning of their fellow Australians, would have been glad to have had the protection of the law and nowhere is this truer than in the company law and securities industry fields. Scandals in these fields have been commonplace in the last decade. Many thousands of small shareholders have been ruthlessly fleeced of their savings and there has been a great loss of confidence on the part of investors in the Australian capital market.
Pound was too wise a man to believe that the predatory instincts in man could be easily controlled by a mere edict of the law. Ultimate perfection of mankind, Pound said, 'can no more be achieved through government than through the universal agencies of perfection in which men have believed in the past. Additional services by the State, where they can be performed by the State without waste of what we have learned to do well by other institutions, without reducing the individual man to passive obedience or to parasitism, is a reasonable program which need not carry us to the omnicompetent state'.
It is the Australian Government's firm intention to make provision for those additional services in the areas of company law and the securities markets that are necessary for the protection of Australian investors and the restoration of confidence in the capital market. I am glad to say that there is a growing accept-need not carry us to the omnicompetent state'. Level is urgently necessary.
For too long company law generally, and Australian company law in particular until recent years, was a field that was traditionally concerned with so-called private law questions such as the contractual rights of a company, the running of company meetings and the relationships between directors and shareholders. I believe there is a growing conviction in Australia that much of the legislation in respect of corporations now in force is inadequate for contemporary conditions and that whilst we need the contributions of a dynamic and healthy public sector we also need to see that the public companies that wield such great influence in our community are made more readily accountable for their decisions and actions.
In the Australian Labor Party's policy speech of November 1972 it was promised that in the area of economic law reform a Labor Government would legislate for a nationwide Companies Act, a Securities and Exchange Commission, and an effective Restrictive Trade Practices Act. I am proud to say that that great landmark legislation the Trade Practices Act 1974 is now in operation. I anticipate that the Corporation and Securities Industry Bill will be introduced into the Parliament before the end of the present sittings and I am determined that National Companies legislation will not be far behind it.
If any confirmation were needed of the wisdom of the Government's decision to set up a Commission to control the Australian securities market it may be found in the report of the Senate Select Committee on Securities and Exchange recently presented to the Australian Senate. The first paragraph of the introduction to that report reads as follows: The main finding of the Committee is that the regulation of the securities markets, of the intermediaries which operate in these markets and of some of the activities of public companies and investment funds, is in need of fundamental reform. Our essential recommendation is that an Australian Securities Commission be established forthwith by the Federal Government to carry out this reform. Securities Markets have an important part to play in the development of Australia and effective regulation is required to ensure that the markets are functioning to achieve this objective. This is the clearest possible evidence of the need for action on the part of the Government to reform the law, not, let me make it clear, to deprive the self-regulating bodies of their proper role, but to establish a Commission that will look over the shoulder of those running the market place to ensure that there is fair play, or, to use the even more homely Australian expression, that everyone gets a fair go.
I think I may fairly note here that well before the Senate Committee's Report the Labor Party had recognised the need for action of the kind recommended by the Committee. I have mentioned the 1972 Policy Speech, but even before that, in a speech in the Senate of 19 March 1970 which led to the setting up of the Senate Committee, I said of proposed State Securities Industry legislation:
The projected State legislation is not adequateóhow can six State Governments each with administrative bodies, cope with operations which are literally ringing the changes in six State Capitals. Whatever the powers of a supervisory body there should be one body and not six or seven
and a little later near the end of my speech, I said something that you gentlemen here tonight will recognise as having as much validity now as it did over 4_ years ago when I added:
Those who want the public to invest in Australia's future by investing in public companies must recognise the disillusionment of those who have been cheated of their earnings and savings because of the absence of reasonable protection which the law should provide.
Consistently with those sentiments I can tell you that the forthcoming securities industry legislation will contain strong provisions with respect to insider trading. This is now a much more emotive subject in Australia than it once was thanks to the revelations of the Senate Committee's report and the ever growing body of evidence of the prevalence of insider trading. It seems strange to recall that not so long ago there were those who openly subscribed to the view that the advantages to be gained by insider trading rightly belonged to the entrepreneurial insideróit was part of his reward without which he might not be so active in helping to develop the economy. Indeed in the United States there is still a very small academic school that advances this philosophy. I regret to say that I believe that there are still a significant number of Australian business men, who, whilst they might not openly subscribe to this philosophy, nevertheless private believe it to be sound.
For my part I consider it an unassailable proposition that it is contrary to good business ethics that a man holding a position of trust in a company should use confidential information for his personal benefit to the detriment of another. And here, despite Pound's cautionary note, I am glad to see the law trying to put down cunning and thereby assimilating the legal to the ethical position. The appeal to commercial morality and the search for what Professor Loss has called 'market egalitarianism' has led to a number of western countries taking action to legislate against the insider trader and a 1966 report on the European Economic Community favoured legal sanctions against him.
It has recently been recognised in the United Kingdom that moral opprobrium and civil sanctions are not no longer sufficient to deal with the offending insider. The United Kingdom Company bill of 1973, introduced by the Tory Government, included strong measures against insider trading and those provisions have been drawn upon in the preparation of the Australian Government's legislation. The United Kingdom Bill fell with the Health Government but there can be no doubt that the Wilson Government will be equally in favour of strong measures. In the British Labour Party's Green Paper of May 1974, 'The Community and the Company', approval is given to the objective stated in the Tory White Paper that 'the object of legislation on insider dealing must be to ensure that anyone who is in possession of information which would be likely, if generally known, to have a material effect on the price of the relevant securities refrains from dealing until the material information has properly been made generally available'.
The basic approach of the Australian Government's legislation is to prohibit an insider, referred to as a person 'connected with' a corporation and any associate of such a person from dealing in the securities of that corporation when they are in possession of information that is not generally available, but if it were, would be likely materially to affect the price of those securities. That is to say, if a person is an insider and is in possession of non-public price sensitive information he must not deal in securities to which the information relates.
A person is 'connected with' a corporation for the purposes of the legislation if, being an individual,
(a) he is a director or officer of that corporation or a related corporation, or (b) he is a substantial shareholder of that corporation (i.e. he holds an interest in 5 percent of its shares) or a related corporation, or (c) he occupies a position that may reasonably be expected to give him, by virtue of a professional or business relationship with the corporation or by virtue of being a director or employee of a substantial shareholder, access to information of a kind to which the insider trading provisions apply.
A person will be prohibited from dealing, even though he is not 'connected with' a relevant corporation if he obtains inside information from another person, knowing that that other person is prohibited from dealing, and, when the information was so obtained, he was associated with the other person or had had an arrangement with him for the communication of such information with a view to dealing.
A breach of the insider trading provisions in the legislation will constitute an offence for which a heavy penalty is providedóin the case of a natural person a fine not exceeding $10,000 or imprisonment not exceeding two years, and in the case of a corporation by a fine not exceeding $50,000.
Turning to another aspect of the forthcoming Corporations and Securities Industry Bill I suppose that the provisions of the legislation of most interest to a gathering of this kind are those dealing with accounts and disclosure and I will say something about those matters.
The Government in its approach to them is firmly of the opinion that the effectiveness of the legislation will depend very greatly on the adequacy of the information disclosed by corporations registered with the Commission and the timeliness of that information. Consistently with that view, the following innovations have been made to existing company law.
In addition to the usual annual accounts a corporation will be required to lodge a quarterly report with the Corporations and Exchange Commission. The quarterly report will be required to stateó
(i) the profit and loss for the quarter (ii) the profit and loss for the corresponding period in the previous financial year (iii) turnover for the quarter to which the report relates (iv) whether the results of the Corporation's operations during the quarter were, in the opinion of the directors, substantially affected by any item transaction or event of a material or unusual nature
In addition the Commission may prescribe other matters upon which a corporation will be required to report. I should perhaps add, in case any auditor here tonight is beginning to buckle at the knees at the thought of the extra work, that these quarterly reports will not require to be audited.
The English Jenkins Committee in 1962 thought that the time had come for a turnover requirement to be included in company legislation. The U.K. Act of 1967 made provision both for a statement of turnover and a statement of the calculation method adopted. Some exceptions were provided. In the United States the Securities and Exchange Commission has for a long time had a turnover requirement under which not only global sales figures but also figures for significant parts of the same business must be provided.
The Eggleston Committee viewed the subject of company turnover as a major question of policy on which Ministers would have to come to a decision. Subject to that consideration the Committee was, on balance, in favour of a fairly flexible approach to disclosure of turnover, gross revenue or gross income 'or such other figure as will give a true and fair view of the gross money value of the company's activities for the year' together with an explanation of the method of calculation.
The Bill will contain a provision to that effect. The Bill takes account of the definitional difficulty that is involved and provides that turnover may be stated 'by reference to the amount of gross income or any other amount that will give a true and fair view of the gross money value of the activities of the corporation'.
The Eggleston Committee did not see disclosure of turnover as a 'major weapon' of investor protection. In that they may have been right. You gentlemen may be better judges of that than I am but my approach to the Bill throughout has been dominated by the philosophy of the fullest possible disclosure. I trust businessmen will not see this as a daunting new problemóI am sure that the figures will be available in the Boardroom. Why should they not be available to the public? There will be a power in the commission to give relief from this requirement in specified circumstances.
Value of non-current assets
The Eggleston Committee did not recommend the inclusion of a provision dealing with the situation where a non-current asset is undervalued in a company's books taking the view that 'it has certainly never been regarded as untrue or unfair to show assets at a figure below their real value'.
In the preparation of the Bill it was felt that with the rising rate of inflation and the passage of the years the disparity between book value and true value of non-current assets of many Companies has increased to the extent that their accounts have often ceased to be meaningful. In a number of take overs in recent years there has been an unseemly scramble on the part of directors of a target corporation to make known the true position to their shareholders but it seems only right that relevant information should always be available to allow a shareholder to assess the performance of his company. Provisions will accordingly be contained in the Bill and I might mention that the approach taken in respect of a non-current asset consisting of an interest inland is similar to that taken in the United Kingdom Act of 1967, that is, the comparison is with market value.
Shortening of time within which accounts to be laid before meeting
The time within which the profit and loss account and balance sheet are to be laid before a corporation is reduced to a period of five months from the close of the relevant year.
I am glad to say that the proposed Bill will require the Directors of a corporation to deal in their annual report with the number of persons employed by the corporation and the arrangements made by the corporation to protect the safety and health of its employees and the public, as well as the actions the company has taken to protect the environment.
In the light of what I say later about co-determination, you may think that this is only a small step forward. True this is only a small step but it is a significant one because Directors will be required by law, for the first time, to advert in their annual report, to matters concerning their employees.
Directors will also be required to set out their interests, direct and indirect, in the securities of the corporation and in contracts with the corporation.
During the preparation of the legislation there was pressure from a number of quarters for a whole new accounting code to be included. Some would have been satisfied with a jump from historic cost to current value whilst others were for an inflation value approach. In my opinion the right view has been taken, namely, that while accountancy principles are undergoing such rapid change it would be unwise to enshrine a code in the legislation itself with all the difficulty that course would give rise to in terms of making subsequent amendments.
The Corporations and Exchange Commission will have a specific duty under the Act to conduct research into accounting principles and methods. The Eggleston Committee had recognised the desirability of a provision of this kind in its First Interim Report. Further, the Commission is given the power to make rules prescribing the accounting principles that are to apply for the purposes of the requirement that company accounts must give a true and fair view of the matters to which they relate. The Schedules to the Bill setting out the matters to be contained in the accounts and group accounts and the directors' report may be varied by rules made by the Commission.
It is my hope that the Commission, with the advantage of close consultation with interested parties and especially with learned bodies such as yours, will play a dynamic role in the establishment of standards for financial accountancy and reporting.
Securities Industry Segregation
It must be said, unhappily that one of the findings of the Senate Select Committee on Securities and Exchange was that, to use their own words 'the performance by the exchanges of their regulatory responsibilities with respect to their members has been seriously wanting'.
It is generally conceded that in circumstances in which a stock broker occupies a dual role, for example, as broker/dealer, broker/director or broker/underwriter there is a high potential for conflicts of interest to arise. True it is that similar conflicts arise in other areas of business life but stockbrokers are in a unique situation in the sense that through the stock exchange to which they belong they control the public market place for securities and in that market place they may be trading not only as agents for clients but also on their own account. There has been some judicial criticism of the conduct of some stock brokers. In Hewson's case in the New South Wales Supreme Court Street J, as he then was, had this to say of the duty of brokers:
Brokers who seek to enrich themselves by trading with the public thereby discredit themselves and their calling. They must realise and accept this limitation inherent in their position as brokers.
In one case at least stock brokers, of their own volition, have seen the need to act through their own self-regulatory body to eliminate one area of conflict. I refer to the decision of the Perth Stock Exchange, taken in 1969, to prohibit its members from accepting office as directors of public companies.
I have therefore found it necessary during the course of preparation of the Bill to give consideration to the action that should be taken to impose some measure of segregation on industry participants to eliminate, or at least reduce, the risk that the public will suffer in those circumstances where a broker occupies a dual role of the kind I have mentioned. I will not say what decisions I have come to on these matters. The problems have been difficult of resolution.
It is sometimes said to me that all the unsavoury incidents occurred in boom times, the inference being that they will not occur again. Those times will no doubt come again and legislation must be sufficient for all contingencies. The problem is the more difficult because, as I appreciate very well, I am dealing with an industry in which there are many honourable men. It is hard for them to be saddled with restrictive legislation designed to protect the public from the venal few who may be found in any profession or business. However I am satisfied that protection of some kind there must, and will, be.
Offers to the Public
What constitutes an offer or invitation to the public? Existing State and Territory legislation does not attempt an exhaustive definition of when an offer or invitation is made to the public. That legislation does however provide that a reference to offering shares or debentures to the public is, in the absence of a contrary intention, to be construed as including a reference to offering them to any section of the public, whether selected as clients of the person issuing the prospectus or in any other manner. A bona fide offer or invitation is nevertheless not to be deemed to be an offer to the public if it is, inter alia, made to the existing members or debenture holders of the corporation.
The Eggleston Committee in its Fifth Interim Report drew attention to difficulties that arise in the application of these provisions, and with a view to overcoming the difficulties recommended that 'the public' be defined in terms of the number of persons to whom the offer or invitation is made. Specifically the Committee recommended that it be provided that, with certain limited exceptions, every offer to allot shares or debentures in a corporation or proposed corporation, and every invitation to subscribe for shares or debentures in or to deposit money with or to lend money to a corporation or proposed corporation, be deemed an offer or invitation to the public, unless the total of all offers and invitations issued, circulated or distributed in respect of shares or debentures of that corporation or proposed corporation within any period of three months which includes the date of the offer or invitation does not exceed fifty.
Consideration of this proposal has raised doubts as to whether in its present form it would be satisfactory. For exampleó
(a) In some circumstances, as where an invitation is posted on a notice board in a public place, the number of persons invited is more relevant than the number of invitations issues, circulated or distributed. (b) If, having regard to this the test were made to depend on the number of offerees or invitees, (the Eggleston Committee may have intended this) difficulties would arise in the counting of those persons. Professor Loss referred to those difficulties in his report and commented 'it is not easy, to apply a numbers test to offerees'. (c) Whether the test depended on the number of offers or invitations, or alternatively on the number of offerees or invitees, there would be considerable difficulty in its enforcement. (d) If the permitted number of offers and invitations were not related to offers and invitations that were similar to each other in certain respects, it would not in some circumstances be possible for a corporation to make an ad hoc offer or invitation of an essentially private nature without getting a prospectus for it registered. This would be particularly so in the case of an offer to borrow, or an invitation to lend, having regard to the wide meaning of 'debenture'. Yet a similarity test for this purpose could leave room for circumvention.
Professor Loss suggested in his report a test based on the number of buyers instead of the number of offerees. But he acknowledged that there would still be 'the question of counting the number of "buyers" in the case of purchases by trusts, partnerships, joint ventures, husbands and wives, and so on.' He envisaged that dealing with this question would be needed in the statute or in regulations. In making his suggestion Professor Loss referred to s.227(b) of Tentative Draft No. 1 of the American law Institute's proposed Federal Securities Code. The comment provided to that section indicates that another provision of the Code, s.502(b) makes it unlawful for an offer or or reseller in a limited offering to engage in 'general advertising' in contravention of the Commission's rules. The 'general advertising' prohibition is said to be designed to preserve something of the old prohibition of public offerings without perpetuating that difficult concept. Yet it is acknowledged, that the concept of 'general advertising' is itself inevitably vague. That this is so is clear from examples supplied of rules that might be made in regard to the matter. One such example is that 'inviting more than a handful of non-institutional persons to a general sales meeting (unless, perhaps there had been previous business or social relationships with all the invitees) would presumably involve a form of "general advertising".'
In all the circumstances the view has been taken that, pending further consideration of the proposals submitted by the Eggleston Committee and Professor Loss, the Bill should not provide for the question whether an offer is made to the public to be determined by reference to a test involving the number of offers, offerees or buyers.
Invitations confined to existing shareholders or debenture holders: existing State and Territory legislation provides that a bona fide offer or invitation with respect to shares or debentures is not to be deemed to be an offer to the public if it is made to existing members or debenture holders of a corporation and relates to shares in or debentures of that corporation. In this regard the Eggleston Committee in para. 9 of its Fifth Interim Report took the view that increased protection should be afforded to shareholders and debenture holders.
The Committee took this view particularly in relation to debenture holders commenting that 'while the tendency of recent legislation has been to provide protection for debenture holders of a kind which formerly was not extended to lenders of money, debenture holders are still not entitled to information about the affairs of the company in the same way as shareholders are and we do not see any reason why an offer of shares or debentures to existing debenture holders should be made without a prospectus. The Bill adopts this view and provides accordingly.
In relation to shareholders, the Eggleston Committee's view was that:
Although they may be presumed (from receipt of annual reports and accounts) to know more about the affairs of the company than debenture holders, we think it is desirable that some increased protection should be afforded to them. In a prospectus issued to the public, the directors are required to bring the information in the last accounts up to date, and are also required to disclose whether they have any interest in any property proposed to be purchased. They are also required to indicate a figure for the minimum subscription which is in their opinion required for the success of the operation.
In the case of offers and invitations to existing shareholders, the Eggleston Committee did not go so far as to recommend a requirement for a prospectus. But the Committee proposed that offers or invitations should, if in excess of 50, be attacked to a circular (called a directors' proposal) containing specified material of the kind mentioned in the last preceding paragraph of this memorandum. A directors' proposal, unlike a prospectus, would not have to be submitted to the Registrar before distribution, but failure to include the prescribed material, or the inclusion of false statements, would be an offence and other criminal and civil rights would apply as in the case of a prospectus.
Under the Bill an offer or invitation to existing shareholders will need to be made by a prospectus, for which, however, special provisions may be made by regulations. The only significant departure in substance from the Eggleston Committee's recommendations in this connection will be the consequential need for the prospectus to be registered by the C.E.C. This departure accords with the underlying philosophy of the Bill that investors should be protected before the event rather than given rights of questionable value to be exercised after trouble occurs.
Renounceable Rights Issues: Special provisions in relation to such issues were proposed by the Eggleston Committee in paras. 13-14 of its Fifth Interim Report. Those provisions are unnecessary if, as provided, offers and invitations to existing shareholders are required to be by way of prospectus.
The Bill recognises that there would be considerable difficulties in attempting to ensure that the buyer of rights received a copy of the prospectus so as to be able to comply with the requirement that an allotment to him be only on the basis of an application on a form attached to the prospectus. An exemption from that requirement for allotments to a buyer of rights is provided in the Bill.
I want to turn to a subject that seems to strike terror into the hearts of some business men and that is the question of worker participation in company management. The Australian Institute of Political Science's 36th Summer School held in January 1970 had as its subject 'Big Business in Australia'. My colleague Chris Hurford, who was to have delivered this paper for me tonight, said of the proceedings of that Summer School:
We should have heard much more about the participation of workers in decision-making than we have done so far this weekend. I know it is fraught with difficulties, but they must be tackled. Industrial democracy is a right, not just a privilege for a few firms, or for the workers in a few firms.
I trust I will upset no-one here tonight when I say that I strongly endorse the sentiments that Chris Hurford expressed on that occasion. I would readily concede that there are some in the ranks of the workers who are suspicious and even hostile to worker participation in company management. There is the feeling amongst some trade union leaders that their position is threatened when workers win places on company boards.
I think both sides have to look at this problem carefully and with good will. To businessmen I would point out that worker participation in management has flourished in the Federal Republic of Germany more than in any other Western country. West Germany could scarcely be described as a socialist country and it is not without interest to note that its inflation rate at this time is amongst the lowest of all the developed countries.
It seems to me that there is something fundamentally wrong in existing company law philosophy. We say that company law is all about companies and those persons associated with them, but when we think of those associated with companiesóand indeed when the law thinks about themówe think usually only of shareholders and creditors.
The question that must arise in this day and age is whether one can really speak of the shareholders of companies as being associated with the company in the true sense of the word. In their book, 'The Modern Corporation and Private Property' two American writers, Berle and Means, have pointed out that the modern corporation meets the need for a new type of property in which there is little relationship between the owner and the property itself. The control of the property falls more and more into the hands of a self perpetuating managerial class. Professor Gower has said that in this situation the company is simply a piece of machinery like the trust in which the property of a group of individuals is managed by other individuals. More and more, too, we find that there is a further intermediary, the institutional investor such as the insurance company, the pension fund and the unit trust. These institutions make the important investment decisions and the great bulk of policy holders, superannuants and pensioners do not know, not care, they are investors in B.H.P., C.S.R. and other great Australian corporations.
The traditional approach of the powerful institutional investors has been one of inertness in the affairs of the companies in which they invest. This tradition has meant that the managerial class has become even more immune from interference from the owners of the company property they manage. But one body of persons with whom company management has intimate and regular contact is the great body of company employees. To this body, however, management owes no duty at all under company law. There is a contractual relationship and the general law of master and servant has application. There may also be a relationship established by reason of collective bargaining agreements but so far as company law is concerned the position is as stated by Plowman, J. in Parke v The Daily News Ltd. This was an English case arising from the demise of the London newspapers the News Chronicle and the Star in 1962. A witness before Plowman, J. said:
I think that although obviously the prime duty of directors is to their shareholders to conserve the assets, they also have these days a very practical obligation to their employees. Plowman, J. gave that proposition short shrift by saying 'no authority to support that proposition as a proposition of law was cited to me; I know of none, and in my judgment such is not the law'.
Such is not the law in Australia either but the question may fairly be asked, I think, whether it should be. As Professor Gower has said:
If the relationship between management and shareholders gives rise to problems which company law has still not satisfactorily solved, the relationship between management and labour presents problems which company law has not even recognised as being its concern.
In this regard it is interesting to note that the Jenkins Report of 1962, the last great inquiry into English company law, emphasised that in considering every new restriction or duty recommended to it the touchstone was 'if it is made law would it improve to an extent worthy of legislation the position of investors or creditors it was designed to protect and if so whether its implementation would to any significant extent number or impede the Company in the efficient conduct of its legitimate business'. No suggestion here, and indeed nowhere in the report that the rights of employees was a subject worthy of serious consideration.
However, things are changing in the United Kingdom and changing not only because of the activities of the British Labour Party but also because British businessmen, perhaps motivated by self-interest, have realised that democratisation of industry by way of recognition of the interests of employees is good business. The Tory Government's White Paper on Company Law Reform of July 1973 spoke of the belief 'that it is in the interests of all concerned, including those who provide the capital, that the employees should have an appropriate opportunity of influencing decisions which can closely affect their own interest'. The final report of the Confederation of British Industries Company Affairs Committee under the Chairmanship of Lord Watkinson concluded that 'what is now required is the development of methods allowing a wider degree of participation in the process of decision-making'. What I am saying tonight could not be better put than it was in the Report of the British Institute of Management Study Group on Company Affairs chaired by Sir Frederick Catherwood. That Study Group is recommending worker participation along the lines of the works councils system in Germany said this:
By contrast (that is by contrast with the election of trade union officials) the government of the public company, i.e. the Board, which is the most powerful institution of our age, is elected on extremely low polls, not by those whom they direct, but largely by absentee owners. We put this in stark form, not because the owners do not have a case but because the boards of companies cannot undertake their immense and increasing responsibilities without broad public support. That support is not likely to be given without some measure of confidence from representatives of those who work in the company business.
Perhaps we shall see changes in the English approach if only because of the attempt being made under the aegis of the European Community to harmonise European Company Law. Of this attempt, Professor Schmitthoff has written: If at the end the harmonisation of European company law is merely successful as a technical legal exercise it would be a failure. It would be obsolescent before it became operativeÖOur economic order has entered a new and crucial phase in its development. The time when the company was merely regarded as a means of profit maximisation has gone. The company has become an instrument of social progress which can fulfil its functions only if the forces of capital, management and labour are institutionally joined together and work harmoniously and smoothly within the framework provided by law. The spirit of the new company law of Europe must reflect the spirit of the new economic order, an order built on the concept of social responsibility.
Would anyone here seriously argue that there was less need in Australian Company Law than there is in corresponding European law for a new concept of social responsibility?
It has been said that this problem of co-determination is the greatest stumbling block in the path of the European Community in its strivings for a uniform company law. In Germany the principle of worker participation in management has been entrenched in company law since 1952. One-third of the supervisory board of a company in that country is made up of employees of the company. The only other country in the European Community whose company law makes provision for worker representation is The Netherlands. The approach in that country is not to provide for a mandatory representation of a fixed percentage of workers on the supervisory board but rather to require that there be a consultative process between an executive board representing management and a workers council representing workers from which consultations it is hoped that agreement will be reached on the representation of workers on the supervisory board. The Fifth Draft Directive on company law issued to the Common Market countries postulates managerial participation of employees either along the lines of the German law, i.e. one-third worker representation, or the so-called Co-optation approach of Dutch law.
Despite the obvious difficulties, I believe that the Europeans will gradually develop a common company law that provides for some worker participation at the managerial level in a company. I believe that that will also be the case in Australia in time and that it would be a great step forward if some dialogue was opened up on the subject between organised labour and management.
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'Why Australia needs a Bill of Rights' A reply by the Attorney-General, Senator Lionel Murphy, Q.C., to a series of articles by Sir Robert Menzies on the Human Rights Bill. Australian Government Publishing Service, Canberra 1974
Bill of Rights
Senator Lionel Murphy,
Attorney-General of Australia
Published for the Attorney-General, Senator the Hon. Lionel Murphy, Q.C., by the Australian Government Publishing Service, Canberra 1974
A reply by the Attorney-General, Senator Lionel Murphy, Q.C., to a series of articles by Sir Robert Menzies on the Human Rights Bill.
Thomas Jefferson, a founding father of the United States Constitution, once said that 'a Bill of Rights is what the people are entitled to against every government on earth'. I believe that the Australian people are entitled to a Bill of Rights to protect them against infringements of their fundamental rights and freedoms.
It is not to secure any partisan advantage that the Australian Government has introduced the Human Rights Bill. It has taken this action because we believe it is time that the fundamental rights and liberties of the individual, recognised and declared by the community of civilised nations in the Universal Declaration of 1948 and in many subsequent international treaties, were firmly enshrined in our law.
We are legislating now for the protection of human rights because too often in the past our courts and our parliament have let us down. The legislators have told us to look to the common law for our protection, the judges have excused themselves by pointing to the enactments of 'responsible legislatures', and between the two of them a series of grave injustices have been perpetrated, mainly on those groups in the community who lack the power or the popularity effectively to answer back.
Today human rights are just not the States' business or even the nation's business; they are the world's business. The denial of human rights in any country affects the international community. The imprisonment of Bronwyn Trathern in Greece, the expulsion of Alexander Solzhenitsyn from Russia, the shooting of students at Kent State University in the U.S.A., all have caused waves of concern to flow around the world.
In his series of articles, Sir Robert Menzies made three assertions.
· Our rights and freedoms are sufficiently protected by the common law and responsible government.
· The Australian Parliament should not use its constitutional power to give effect to international agreements if this involves legislating in areas previously thought to be the province of the States.
· High Court Judges will become involved in political matters if they have to interpret broadly-stated legal guarantees. I want to explain precisely why these arguments ought not to be accepted.
The Common Law is judge-made law. The rules and principles of the common law apply only where they have not been set aside by some statutory enactment. No special formula is required for this to be done, nor is the power to set aside common law limited to the Australian Parliament. It can be exercised by the State Parliaments, by regulations made by Executive Governments, or by local councils.
Sometimes this power to overrule the common law by legislation has been beneficial. The common law is not always tender for the rights of the individual, particularly the individual without money or without political influence. Let me give an example.
It is a common law principle that a person is free to enter into contracts. Last century the common law upheld the right of factory owners to contract with children to work for sixteen hours or more a day for starvation wages. When workers formed trade unions to get better conditions, the common law, aided by Parliamentary enactment, said the unions were unlawful and their leaders were sent to prison. It is still the position at common law that all trade unions are unlawful as conspiracies in restraint of trade. Then Parliament stepped in, and fixed hours of work and made it unlawful to employ young children. Parliament made it lawful for trade unions to operate. We now enjoy freedom of association in trade unions, derived not from the common law but from Parliament's overruling the common law. Children have the right to education, instead of being forced into slavery in factory and mine, because Parliament gave them that right.
Even where our fundamental rights and freedoms apparently depend on the common law, the common law, because it is subservient to statutory enactment, is often powerless to protect those rights and freedoms.
The common law does not say we have freedom of speech; it says we may speak as we wish, so long as what we say is not unlawful. The common law does not say we have the right to freedom of assembly; it says that people may not be prevented from meeting together unless the law forbids that meeting.
The common law says a person may not unlawfully be arrested or kept in custody; it does not put any limits on the kind of laws that may be made to authorise arrest or detention. The common law, as interpreted by the High Court, denies any general right of privacy. The common law prohibition on police or other officials searching a man's house without warrant was not intended to protect his privacy; its purpose was to protect his property. The common law gives a man who can afford the fees the right to be represented by a lawyer in court; it does not guarantee the same privilege to a poor man.
Let me examine a little more closely some of these areas. Take first the right to privacy, or as Sir Robert Menzies put it, 'the right to be at peace in one's own house'. The High Court has denied that there is any such general right at common law. Neither the judges nor the parliaments have done anything to counter systematically the explosive growth in the last few decades of eavesdropping and prying by Government Departments, law enforcement authorities, business organisations and the communications media.
The law relating to arrest and custody gives no effective protection. Criminal suspects are not supposed to be detained on suspicion, interrogated against their will, denied access to legal advice, kept incommunicado or, after charge, delayed access to a magistrate. But where these occur, as they often do in practice, a person affected usually has no effective remedy. What remedy had the Victorian unmarried mother, on a $26 per week pension, who one morning last year was arrested at 10a.m. for swearing a false declaration in respect of some outside earnings and not released on bail until 7p.m., frantic meanwhile as to the whereabouts of her little girl after school?
Again with bail. The onus in non-capital cases is supposed to rest not upon the accused, but upon those who would deprive him of his liberty. But how well was that discharged when a young Aboriginal boy was recently set bail of $600 after stealing a pair of trousers, or when a man carrying a vegetable knife, to scrape rust off his car was set bail of $1000 on an offensive weapons charge (from which he was subsequently acquitted after spending a week in remand)?
How well does the law ensure the right to a speedy trial, particularly for those remanded in custody? Look at the 1967 Victorian case where a Finnish migrant arrested for indecent exposure was kept in remand for six months, only to be then acquitted by judicial direction for lack of evidence against him.
Our law does not ensure that a person is represented in criminal cases. A New South Wales study reported last year showed that a defendant with a lawyer has a six and a half times better chance of securing an outright judgment in his favour than on who has not. Should justice depend on the accident of poverty?
What restraints did our system of responsible Government impose on the Queensland Government and Parliament for its extraordinary 'state of emergency' proclamation in relation to the 1964 Mt Isa mine strike and the recent Springbok rugby tour? How effective were parliamentary and electoral sanctions in stopping the political censorship of M. Bidault's television interview in 1963? How effective are they even now in controlling ministerial discretions across the whole area of immigration, passports, visas and the treatment of aliens?
Let us look more closely at the state in this country of the classic political freedoms of speech, press and assembly. The right to demonstrate peacefully has resumed its fundamental importance in the last decade, as people have come to realise that showing their concern by their voices and their physical presence is very often the only way to bring home to a government the immorality of a policy it is pursuing.
Professors Enid Campbell and Harry Whitmore have said 'when common law and statute are combined there is little left of the right to hold a meeting or procession'. Sir Alan Herbert has said of our common law that the only right a citizen has on a public street is 'to walk at a moderate pace, by himself and breathing quietly'. The right of peaceful demonstration is hedged about with innumerable laws, of unreasonable width and giving extremely wide discretionary powers to law enforcement authorities, a restraint which is not always exercised in a manner which gives those who wish to demonstrate a reasonable opportunity to ventilate public issues.
There are obvious difficulties in reconciling freedom of expression and the press with other rights deserving protection, most notably the right of individuals to protection of their privacy, honour and reputation, and these cannot be easily solved by a simple formula in a Bill of Rights. In his enthusiasm for defending the present law of defamation, Sir Robert Menzies has quite overlooked the fact that I have specifically excluded the law of defamation from the operation of the Human Rights Bill, pending a thorough investigation of this whole area.
There are a dozen other areas of Australian law that could be canvassed. But take finally the question of discrimination. The common law and our system of responsible government do not stop any Australian government that feels so inclined discriminating against whomsoever it pleases, so long as those discriminated against are in a minority or are politically powerless. Ask Aborigines, particularly in Queensland, and many women what equality before the law, and the equal protection of the law means to them. Whatever Sir Robert Menzies may think of the United States Supreme Court, it cannot be denied it has worked an immeasurable service to the nation in the whole field of race relations.
And whatever he may think of the capacity and wisdom of our founding fathers, a reading of the pre-Federation Convention debates would oblige him to concede that they rejected a Bill of Rights for Australia not just because of their faith in parliamentary democracy, but because of their fear that an 'equal protection' guarantee would rule out discriminatory legislation against Australian Chinese. This is the legacy we must now try to live down.
EXTERNAL AFFAIRS POWER
The vehicle we have chosen for the Australian Government to recognise and to give legal force to fundamental rights and freedoms is the power vested in the Australian Parliament to legislate with respect to external affairs. This brings me to the second point made by Sir Robert Menzies, the claim that by introducing a legislative Bill of Rights in reliance on this power we are acting unconstitutionally and to the detriment of the federal system.
There can be no question here of Australia having entered into a spurious agreement with another country merely for the sake of providing a basis for legislation under the external affairs power. The drafting of the Universal Declaration of Human Rights in 1948, the many international agreements on the protection of human rights that have followed since then, the frequent international conferences and seminars on human rights and the extent of the practical concern felt when rights are infringed in any one country are all irrefutable demonstrations of the proposition that the protection of individual rights within national boundaries is unmistakably a subject of legitimate international concern. While judgments of the High Court have made it clear that the Australian Parliament cannot, by the mere device of an agreement with another country, take to itself the power to legislate on the subject matter of the agreement, I venture to say it is inconceivable that the High Court would call into question the bona fides of successive Governments in voting for, ratifying and implementing the International Covenant on Civil and Political Rights.
Then there is the claim that the use of this power by the Australian Government is an improper intrusion into the State arena. My answer here is a very simple one. The States have manifestly not acted to bring their laws and practices into compliance with the international standards , and these standards will not be achieved in Australia unless federal legislation is enacted.
I turn finally to the argument that to interpret a Bill of Rights will bring the High Court Judges into the political arena. I do not shrink from the proposition that the courts are the proper place to assert and to interpret the rights of the individual against government and against others who would encroach upon those rights. If we are to have, in the words of Madison 'a government of laws and not of men', we must look to the judges to interpret and to apply those laws by which we are guaranteed freedom and liberty.
ROLE OF JUDICIARY
Our judges have not hesitated in the past to defend individuals against government where the law clearly required the judges to perform that task. From the time when the courts of the seventeenth century denied to the English kings the right to levy taxes without Parliamentary consent to the striking down by the High Court of Australia of the Communist Party Dissolution Act in 1950, courts have had to deal with matters that were at the heart of great political controversies. And the courts have gained in stature and respect by so upholding the law. We have a great tradition of an impartial and fearless judiciary. I believe that it is well able to cope with the great responsibility of applying and upholding the statutory enshrinement of human rights.
The Human Rights Bill does not expand the powers of the Australian Government. What it does do is to set limits on the power of both State and Federal Governments to interfere with fundamental rights and liberties. This is a limitation which is long overdue. When I introduced the Bill, I invited public comment and suggestions for improvement. It is good that there should be public debate about these important matters. The Government is committed to provide adequate protection to individuals. I will continue to welcome constructive and informed suggestions on how this might best be achieved.
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