Second Reading

Adjourned debate on second reading.

(Continued from 22 June 2016.)

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (11:17): I rise to speak on this bill, and I am almost too frightened to even record the descriptor of this bill for fear that I might be aiding and abetting the offence of treason.

The DEPUTY SPEAKER: I was just going to say, it is punishable by hanging still.

Ms CHAPMAN: There are some rather unsavoury penalties for treason, and I am going to refer to those in a moment, but they do include expulsion, transportation, and death, of course, by execution. May I just first indicate that, whilst we have been a little sceptical from our side of the house as to the necessity for this bill, we will accept the passage of the bill in an abundance of caution that it is necessary to extinguish historical common law.

Essentially, this bill will add a clause to our Constitution Act of 1934 and purports to dispose of any possibility, remote as that may seem, that a litigant may challenge the continuation of court matters in the event of the death of our sovereign—who, I remind the house, is The Queen of Australia under our Australia Act, as well as The Queen of England. It is the dissolution of parliament and the currency of court proceedings and the capacity for them to continue and conclude without interruption.

The origins of this, the Attorney suggests, are from the inquiry by the Legislative Council in Western Australia that reported in August 2015, the Standing Committee on Legislation in its Report No. 28. That report again confirms that, in a circumstance where the inquiry considered a number of matters and also the question of the transfer of sovereignty to another king or queen and how that may affect legislation, that had its origins in the United Kingdom, which had force in Western Australia.

What the Attorney-General did not tell us in his presentation to the parliament is that that recommendation came as a result of the Law Reform Commission of Western Australia 1994 report, that is 21 years before, entitled Project No. 75 on United Kingdom Statutes in Force in Western Australia. The identification of imperial acts that were relevant to this issue were considered, and this proposal emanated from that. In fact, in the standing committee's consideration of this matter, back in 2015, the Hon. Michael Mischin MLC, Attorney-General for Western Australia, gave evidence. He questioned whether legislation was required to deal with the circumstances, and he noted a number of complexities in relation to the imperial acts that were effective but about which there had been some mixed view as to whether they had been extinguished by subsequent legislation.

Again, on inquiry as to whether they acted on their own recommendation, it now appears clear that they have not and will not, and it may be considered after the next state election in Western Australia, which, as I am sure everyone knows, is in early 2017. So, from 1994 to 2017, they have not seen fit to rush this legislation, this protective envelope. However, they apparently had a meeting last year to suggest that they would consider advancing it, again to close the envelope of any possibility, remote as that may be.

It seems that New Zealand, as the government is aware, also had its origins from Britain legally and was run from Sydney for many years. It is now a country in its own right. It has its own parliaments and statutes. They did pass legislation. They have a slightly different system, but they have passed it. The commonwealth has not seen fit to need it. Their constitution covers it. I have to say that it has been a long time since I have read the 1856 state constitution, which is our first South Australian constitution, but on my rereading, it appears to extinguish the alleged ill that we are apparently redressing today.

It seems as though other jurisdictions are advancing at a glacial pace the urgency of this. There are two events that give me some comfort (as I am sure it would give the house if we did not pass this). One is the death of Queen Victoria and her son's ascension to the throne. After the establishment of the South Australian colony all those events occurred. It did not appear to interrupt our legislative assembly or a court litigation at the time. Then of course we had the death of The King in 1954 and the elevation of Her Majesty Princess Elizabeth to become Queen Elizabeth II.

The Hon. J.R. Rau: And a couple before that as well.

Ms CHAPMAN: There were a couple before that, true, but I am talking now in more recent time. I am happy to go through the others if you would like me to, but I think I am making the point here that, if we fast-forward from 1954, when Princess Elizabeth was recalled from Africa to take the throne, she has served us so well, and she is now in her 90th year. She has continued to serve for more than six decades. She has that responsibility.

Whilst I was not alive at that time—I do not even think the Attorney was alive, possibly a few people in this house were alive at that stage—on reading accounts of the time, it appears that there was no major crisis in the state of South Australia. There were no challenges to the Supreme Court, people rushing down with petitions to have their litigation struck down as a result of the change of sovereign, or any rioting protests out the front of Parliament House to try to challenge the validity of legislation that was continuing to be passed in this forum.

I think South Australia took a bit of time off to welcome The Queen that year, have the Coronation Ball and all sorts of other happy events, but there was no challenge to these institutions which had some common law precedent. I am not personally persuaded that it is something that we need. It seems that Western Australia has not advanced past a glacial pace of consideration, nevertheless, in the abundance of caution, we will support it.

Let me return, however, to the criminal offence of treason. It is set out in our Criminal Law Consolidation Act as being confined to petty treason but, interestingly, just in case the Director of Public Prosecutions is listening in and wanting to charge anybody with treasonable behaviour, I just remind the Attorney that appendix 1 to our Criminal Law Consolidation Act 1935 makes provision, and I quote:

When a Man doth compass or imagine the Death of our Lord the King, or of our Lady his Queen, or of their eldest Son and Heir…

etc., and it includes mistresses and various others which we have referred to before in this house. It goes on to say:

…that ought to be judged Treason which extends to our Lord the King, and his Royal Majesty…

and further provision. Just in case the Attorney is worried, he can look at the provisions of the 1795 Treason Act, which came after the 1351 Treason Act, which is an appendage to our legislation even today, to find out what fate of penalties might attract him if the DPP decides to prosecute for his treasonable thoughts of the demise of Her Majesty by introducing this legislation.

I would not actually want him to be dragged away and shackled and charged or convicted for that. I could think of a number of other things that he should be punished for, but introducing this legislation is not one of them. I would even offer to go down as a character witness to say that he was just blindly ignorant when he came to the importance of issuing these proceedings; nevertheless, the bill will pass with our blessing.

The DEPUTY SPEAKER: Before I call the Attorney, I want to draw to the attention of the house that King George VI actually died in February 1952—

Ms Chapman: Sorry.

The DEPUTY SPEAKER: Yes, we need to correct Hansard for you. The Queen ascended on 6 February 1952 but was crowned in June 1953. None of us could remember that, of course.

Ms Chapman: We weren't alive.

The DEPUTY SPEAKER: That's right—only by a few months in some cases.