6th Parliament · 1st Session
The President took the chair at 3 p.m., and read prayers.
page 314
Assent to the following Bills re ported: -
Belgian Grant Bill.
Trading with the Enemy Bill.
page 315
Payments
– Has the Minister of Defence had brought under his notice the alleged breaking down in many cases of the arrangements made by members of the Expeditionary Forces to have a portion of their pay given to their wives and families) and, if the allegation is true will he expedite the payments?
– There have been a number of complaints from persons to whom money was allotted of not having received it. In most of the cases which have been investigated it has been found that the non-payment is due to the want of a sufficient address, or of a proper identification of the person making the order. The complaints are being investigated, and it is believed that shortly the matter will be put on a better footing.
– May I ask the Minister if the cases I brought under his notice come within the category he has mentioned ? He will remember that I provided him with extracts from communications bearing on this subject.
– In regard to the particular cases which the honorable senator brought under my notice, I have called for a report. I have not yet received the report, and I was not referring to those cases in the answer I gave.
page 315
– Last week I asked the Minister representing the Minister of Trade and Customs if he could give the Senate any information as to whether the Inter-State Commission intended to provide progress reports concerning its investigations into the question of the Tariff; and, if so,when we might expect the reports to be supplied ? The Assistant Minister promised to make inquiries, and I desire to know if he has received any information on the subject ?
– The information is not yet to hand, but I hope to be able to supply it to the honorable senator at a later hour of the day.
page 315
– In view of the diffi culty of procuring suitable remounts and other horses for military purposes, will the Minister of Defence take into consideration the desirability of establishing breeding farms in the Northern Territory in order to provide a supply ?
– The difficulty experienced in procuring a supply of remounts at the present time is due to the unusual demand caused by the war. The establishment of a breeding station unfortunately would not get over that difficulty in the immediate future.
– There may be another war later.
– Owing to the extraordinary burden imposed upon us in regard to the war, it is not possible to enter upon the consideration of a proposal during the current financial year.
– Does not the Minister consider that better horses could be procured more cheaply if they were bred by the Department in a locality like the Northern Territory, which is eminently suitable for horse breeding ?
– I believe that if the Department had its own breeding establishments it could supply a better type of horse. I do not say that they should be placed in the Northern Territory; I cannot commit myself to that extent, but as regards the immediate requirements of the Commonwealth it would not give a supply.
– Arising out of that reply, I desire to ask the Minister of Defence whether the fact has been brought under his notice that certain auctioneering firms in this State have been purchasing horses at a certain price, and reselling them to the Defence Department at a large profit to themselves ; and, if so, whether he will take steps to see that the practice is discontinued?
– Statements to that effect have been brought under my notice, but I may say that the system under which horses were being purchased by the Defence Department some time since has now been discontinued, and we have reverted to the practice previously in force of purchasing horses direct from the owners themselves. I have called for a return showing the number of horses that were purchased under the system outlined by the honorable senator, the cost of same, the number which had to be resold, and the loss incurred by the Department in such re-sales.
page 316
SenatorREADY. - I ask the Minister representing the Minister of Home Affairs whether he can supply the Senate with the information which was promised last week as to when the Returning Officers and Presiding Officers for the electoral divisions of Bass and Wilmot will receive their remuneration?
– I have received the following additional information which I promised to obtain for the honorable senator: -
All electoral officials in the division of Bass have been paid.
In the division of Wilmot, all accounts are paid with the exception of defective claims (about 20), which have been returned to claimants for completion. These will be paid as they reach the Divisional Returning Officer in proper form.
page 316
The following papers were presented : -
Defence Act 1903-1912. - Regulations amended, &c. -
Statutory Rules 1914, No. 141.
Statutory Rules 1914, No. 142.
Statutory Rules 1914, No. 143.
Lands Acquisition Act 1906. - Land acquired under, at -
Beaconsfield, Tasmania - For Defence purposes.
Moonee Ponds, Victoria, - for Postal purposes.
New Norfolk, Tasmania - For Defence purposes.
Toowong, Queensland - For Defence purposes.
Public Service Act 1902-1913- PostmasterGeneral’s Department - Promotion of R. H. Crow as Clerk, Fourth Class, Accounts Branch (Expenditure), New South Wales.
War with Germany : Despatches from His Majesty’s Ambassador at Berlin respecting an official German organization for influencing the press of other countries.
page 316
– I desire to announce that His Excellency the GovernorGeneral will be in attendance in the Parliamentary Library at a quarter-past 3 o’clock to-morrow afternoon to receive the Address-in-Reply. I shall be glad if as many honorable senators as can find it convenient will accompany me to present the Address at the time indicated.
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Bill read a third time.
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Debate resumed from 23rd October (vide page 314), on motion by Senator Gardiner -
That this Bill be now read a second time.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [3.18].- Although I have not had much opportunity to examine this Bill since its second reading was moved, a cursory perusal of it has disclosed that it represents a codification of a great many provisions of the existing law, although those provisions have not been dealt with by Statute law, but by common law. The measure, therefore, will be a convenience to the public, in that it will enable them to ascertain the nature of offences committed against the Commonwealth from time to time, and the punishment which may be inflicted upon conviction of the offenders. The Bill, to my mind, does not err on the side of leniency in the matter of the penalties provided under it. Of course it may be urged that the question of determining whether leniency should be exercised will rest in the hands of the Judges or magistrates who hear the evidence in such cases, and who will thus be enabled to say exactly what punishment will fit the offence that has been committed. We all know that the idea generally entertained by the community is that we should not err on the side of inflicting excessive punishment, but that we should rather lean the other way. It has frequently happened that where excessive punishments have been provided by law, the fear that they would be inflicted has prevented convictions being recorded against accused persons. It would be rather an unfortunate position if such a consideration weighed with a jury in regard to the offences which are dealt with under this Bill. That difficulty in the administration of justice is always liable to occur where the penalties provided for an offence are very severe. Certain changes are proposed by the Bill in the powers given to magistrates in dealing with a great many offences. Under the old Justices Act of England, which has been followed pretty well by each of the States, a limitation is imposed uponthe time within which an offence may be prosecuted, and also upon the punishment which may be meted out for an offence.
I find that in this Bill provision is made to extend the time within which a prosecution may lie for offences. In clause 22 it is provided that - a prosecution in respect of an offence may be commenced -
where the maximum term of imprisonment in respect of the offence in the case of a first conviction exceeds six months - at any time after the commitment of the offence;
where the maximum term of imprisonment in respect of an offence in the case of a first conviction does not exceed six months - at any time within - one year after the commission of the offence; and
where the punishment provided in respect of the offence is a pecuniary penalty, and no term of imprisonment is mentioned - at any time within one year after the commission of the offence.
Under the Justices Acts of the States, in the case of offences punishable by a magistrate upon summary conviction, and in connexion with which a magistrate has no right to send the. offender to his trial by jury, provision is made that the prosecution must be entered upon within six months. Some reason should be given for the proposed extension of the time within which a prosecution may lie for offences. Some of the offences dealt with in the Bill are comparatively trifling, and in such cases it should be ample to provide that a prosecution must take place within six months. If honorable senators will turn to the last clause, they will find that it reads -
Any person who, - without lawful excuse (proof whereof shall lie upon him), suffers or permits any cattle or other live stock in his possession, custody, or control, to trespass or stray upon any land belonging to, or in the occupation of, the Commonwealth, shall be guilty of an offence.
Penalty : Five pounds.
I put it to honorable senators to say whether it is not absurd to provide that the Crown Prosecutor may prosecute a man at any time within twelve months after the commission of an offence of this kind ? I should say that in such a case, if the time within which a prosecution would lie were limited even to a month, it would be found ample to enable justice to be done.
Any person who, without lawful excuse (proof whereof shall lie upon him), trespasses or goes upon any land belonging to or in the occupation of the Commonwealth. and used for any naval or military purpose, or any purpose incidental thereto, and as to which any notice is posted thereon prohibiting trespass, shall be guilty of an offence.
Penalty : Ten pounds.
A Court of Summary Jurisdiction may not impose a longer period of imprisonment than one year in respect of any one offence against this Act.
The usual term of imprisonment provided for under our existing laws in such cases is six months. Many offences under the measure punishable with a maximum of two years’ imprisonment may be dealt with by a justice of the peace. He is able only to impose a penalty of imprisonment for one year, and, if he believes the offence to be deserving of more serious punishment, it is competent for him to send the man for trial by jury. If the offender is then convicted, the maximum term of imprisonment may then be imposed. Another matter which I think calls for attention has reference to the case of persons previously convicted. Honorable senators are aware that, if a man is convicted of an offence before a jury, the Court inquires as to his previous history, and, if any previous convictions are recorded against him, these are taken into account in considering the punishment to be imposed. Clause 17 of this Bill provides that -
Where a person convicted of an indictable offence against the law of the Commonwealth, has been previously convicted of any offence against the law of the Commonwealth or of a State or of a Territory, and sentenced to a term of imprisonment of one year or longer with hard labour, the maximum term of imprisonment in respect of the offence of which he is convicted shall be double that provided by the section creating the offence.
The maximum penalty provided for some offences may be five years or seven years, and, under this Bill, that term is to be doubled.
Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance by any other person, of any political right or duty, shall be guilty of an offence.
Penalty : Imprisonment for three years.
I commend that to a great many of my honorable friends and their friends, who are very likely to get themselves involved in this particular form of litigation. Another matter of very grave importance to every individual in the community is the right to work, and not to be hindered when he is going to work in consequence of a strike taking place in connexion with any trade or industry. One gentleman occupying a prominent position in the party opposite on one occasion wrote a book and described one method of making a man into a good trade unionist. According to him, an individual who had not joined a union was going to get work where there was a strike, and had occasion to cross a bridge. The picket suggested to him that he could not get along, but he said he was going. On starting to cross the bridge, however, he found himself in the river.
– In a sense this Bill is an old friend, as successive Governments have had a measure of the kind under their consideration for years past, and this Bill, in substance, and, to a large extent, in form, has, I think, been upon the stocks for some time. It has long been recognised that it was desirable to have some uniformity as to procedure in the various Courts of the States exercising jurisdiction in relation to offences created by Acts of Parliament of the Commonwealth. In many of our Statutes we provide that in certain circumstances a person shall be guilty of an offence against the Statute, and penalties are obtainable against such persons by appropriate procedure in the Courts of the States. There has grown up a considerable disparity between the decisions that have been given in the various Courts of the States in relation to the same offence, and it has long been recognised that there should be some harmony and uniformity in regard to the penalties and their application by those Courts. It is eminently desirable that the procedure in enforcement of the penalties in order that the Statute law of the Commonwealth shall be maintained shall, as far as possible, also be harmonious and uniform. The Bill even goes beyond this, I take it, and is intended to apply to procedure and to criminal offences under the common law. It has been thought on previous occasions by members of the Senate and men of eminence in the legal profession that it was unnecessary to enact any detail of the common law by Statute, and yet as high a constitutional authority as the late Mr. Justice Inglis Clark, who was one of the Drafting Committee of the original Convention Bill of 1891, held that so far as the Commonwealth was concerned as an entity or as a body politic, no such principle applies as applies in the case of each of its component parts - the States - with regard to the common law. The common law runs throughout the States. It has inherent force and effect all through them, and applies in conjunction with and subject to their Statutes. Where the Statutes derogate from the common law upon any principle, they and the common law have to be taken in conjunction to ascertain what is the law in the State in regard to that principle. It is not so with regard to the Commonwealth. In the view of the late Mr. Justice Inglis Clark, the Commonwealth to a certain extent is an artificial entity, established by the Constitution, which is an Imperial enactment, and when the Commonwealth came into being it had not in it, as the Commonwealth, and running throughout its territory, the common law of the realm.
– Are you pointing out another weakness of the Constitution?
– No.
– Well, a shortcoming?
– No. It leaves us absolutely free to adopt the common law in its entirety with regard to any particular provision or subject, or to leave it untouched. This occurred, I remember very well, in connexion with our
Copyright Bill, and from the very place in which I stand now, Sir Josiah Symon contested the advisability of having inserted a provision which made Statute law of the Commonwealth the common law of England with regard to the rights of an author in unpublished manuscripts. On the principle of Mr. Justice Inglis Clark that the common law does not run in the Commonwealth as a Commonwealth, it is necessary for us to have a provision in this Bill such as is indicated in clause 4 -
The principles of the common law with respect to criminal liability shall, subject to this Act, apply in relation to offences against this Act.
The only reason why I mention the matter now is to query whether that provision goes far enough. It applies the common law only in respect to criminal liability. This measure, as a whole, goes, I think, far beyond criminal liability itself; it goes to the consequences of criminal liability, and it may be a question whether we have gone far enough in applying the general principles of common law in clause 4, when we only apply them in so far as they affect the subject of criminal liability.
– Will you be prepared to add something to that?
– No, it is too important a clause for, I think, any individual senator to take the responsibility of attempting to amend. I do not say that the clause is inadequate, but I do think it is my duty at this juncture to draw attention to the matter. It may be that there are in the Commonwealth persons of judicial or legal eminence who question Mr. Justice Clark’s contention that the common law does not run in the Commonwealth. As I have said on one occasion, from this very place in this chamber Sir Josiah Symon questioned whether it did, and I think it was only after my reading at some length the opinion of Mr. Justice Inglis Clark, as set out in a chapter of . his book, Australian Constitutional Law, that he wavered in his opinion, and thought it was desirable, even from his point of view, for the sake of certainty that the clause in the Copyright Bill should stand. I would not undertake, and I do not think that any private senator should undertake, the re sponsibility of drafting a provision of this kind. It is one to which the Government should have their attention directed, and before the Bill is finally passed here, they should see that all that is desired is expressed in the clause. I notice that in another place the AttorneyGeneral invited suggestions with regard to the Bill. He intimated that he would freely welcome them from the honorable member for Angas and other honorable members who took an interest in the measure. I, therefore, apprehend the Minister in charge of the Bill here will not be averse to receiving suggestions which he must know, after all, are not offered in any captious spirit, but only with the object of perfecting the measure, and giving expression in unmistakable form to the intention of this Parliament. I notice that in another place, at the Committee stage, attention was drawn to several clauses, and to references in the marginal notes which were said not to be exactly accurate. The AttorneyGeneral promised the honorable member for Angas that he would give the fullest consideration to every point he raised. Since seeing the Mansard, report of the proceedings elsewhere I have not been able to go in detail through each one of the matters which were raised by the honorable member for Angas, at, I may say, the express invitation of the AttorneyGeneral. He did not submit amendments, nor did he ask that a clause should be amended there and then, but the Attorney-General indicated that each suggestion would receive the fullest consideration before the measure came to this place - or, at any rate, before it became law. I would like to have the assurance of the Government that the suggestions have been considered, and that where errors have occurred, notably in some instances in the marginal references, they have been rectified. There is another matter on which I would like the Minister to give us some enlightenment - ‘ I do not say now, but before the Bill is dealt with finally - and that is as to the position which the Commonwealth occupies, or has occupied, with regard to offences and offenders once they have been dealt with by the Courts of the States. Clause 21 of the Bill reads -
If the Court thinks fit to do so, it may release any person convicted of an offence against the law of the Commonwealth, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court that he will be of good behaviour for the term of imprisonment passed upon him, and will during that term comply with such conditions as the Court thinks fit to impose, or may order his release on similar terms after he lias served any. portion of his sentence.
That has always, I tak© it, been competent to the Court. In the Post and Telegraph Act we have created offences. Take such an offence as that of interfering with a telephone or telegraph line in a spirit of mischief by throwing stones or shooting miniature rifles, or other means of destroying the insulators. Boys have been in the habit of doing this until at last a State constable has taken proceedings against them in one of the State Courts, and they have been fined. Has the penalty gone into the revenue of the Commonwealth or of the State?
– That of the Commonwealth.
– Is the Minister certain of that?
– Yes.
– Under what item do the penalties appear in our revenue t
– Under the AttorneyGeneral’s Department, and, if it is a defence matter, the Defence Department.
– I do not know whether it has been a revenue-yielding item or not, but I would like to learn exactly what the position is. I have only mentioned the matter through seeing clause 21 of this Bill. There is another position which has arisen. An offence has been created under a Commonwealth Act, say, the Post and Telegraph Act or the Customs Act, and a person has been prosecuted in a Court of the State - perhaps in the Supreme Court - and awarded a term of imprisonment. Who has had the right, or has exercised the right where it has been exercised, of remitting or reducing the sentence on that person? I have been informed - I know not with what truth - that in one or two instances where persons were prosecuted to conviction in the Supreme Court of a State for an offence against the Commonwealth, say, in connexion with the Post Office, and a sentence was imposed, they did not serve the whole of the term.
– I know that in a case of offences against the Defence Act the sentence can only be reduced by the Governor-General.
– I am not pursuing any specific inquiry now, but before we reach, the final stage of this Bill I would like to know what has been the procedure - if it has come within the province of the State authorities to remit or reduce the sentence on a man who has been convicted in a Court of an offence against the Commonwealth. Because, if that has ever occurred in the past, or it has been possible to occur, why should not steps be taken to avert a recurrence ? It does not follow, because a State Court has imposed a sentence, that the State authorities should be able to review the sentence and reduce or remit it. I do nob say that it has been done, but I have been informed that persons have been released. Some years ago I made an inquiry of a member of the Commonwealth Government who should know about the matter, and it came as a surprise packet of information to him that an offender against a Federal law, against whom he had set the law in motion and who had been convicted by a jury and a Judge of a State Supreme Court, was sentenced and soon afterwards released. I hope that we shall guard against a recurrence of anything of that kind in this Bill. For my own information, and, I think, for the knowledge of members of Parliament and of the public, it is desirable that we should know how we have stood in these matters in the past, and that the public should be assured as to how we are to stand in the future. Senator Gould referred to clause 91 of the Bill, which reads -
Any person who, without lawful excuse (proof whereof shall lie upon him), suffers or permits any cattle or other live stock in his possession, custody, or control, to trespass or stray upon any land belonging to, or in the occupation of, the Commonwealth, shall be guilty of an offence.
Penalty : Five pounds.
My honorable friend quoted the provision for the purpose of pointing out how in-‘ equitable it was that such an offence should be prosecuted, say, twelve months after the alleged occurrence of it ; but in a territory so vast as that of the Commonwealth, there must be in some of the larger States areas of land belonging to the Commonwealth which are in no way fenced, and it is quite possible that without any laches on the part of the owners, the cattle or stock may get on to the land, and the Commonwealth itself may be largely responsible for the stock trespassing on land vested in the Commonwealth.
– Say in the Northern Territory.
– Exactly. The Northern Territory would afford, probably, many opportunities of the kind. I do not take exception to the clause, and I think it is very desirable, for instance, where the boundaries of the Commonwealth land are clearly marked and guarded. There might, in that instance, be every justification for making this an offence.
– Take the transcontinental railway.
– Yes ; we may have a railway line constructed through long stretches of country and unfenced, and stock may naturally gravitate towards some point of that unfenced territory.
– There will be no stock there.
– I am very sorry to hear my honorable friend speak so disparagingly of that country. At any rate there are large areas of Commonwealth property which are unfenced, and the cattle and stock might naturally stray there. It would be very hard to hold a person responsible for the trespass. I suggest to the Minister at this stage that it might be possible, by proclamation or other form, to prescribe from time to time certain areas of the Commonwealth or of any State in respect to which clause 91 would not be enforced. Of course, in regard to urban and metropolitan properties, undoubtedly, the clause is absolutely necessary, but with regard to vast tracts in the hinterland which are not fenced-
– Do you not think that the absence of a fence would come under “ lawful excuse “ ?
– lt is hard to say what lawful excuse would be, but it might be possible, by proclamation, to exempt certain areas. I am only throwing out a suggestion. It is not desirable that an individual should be prosecuted in a case where there was really no practical common-sense liability on his part, however he might be technically responsible. Senator Gould criticised the Bill from the point of view of the penalties provided for. He has affirmed that the penalties provided by the Bill are of a very drastic character. I do not agree with him. The same argument was used in this chamber in regard to previous legislation, notably in regard to the Customs Act. “When that measure was under consideration, it was pointed out that the penalties provided in it were maximum penalties. Some honorable senators declared that if those penalties were retained great hardship would be inflicted upon offenders. The same argument has been advanced by Senator Gould to-day. But our experience of the working of the Customs Act has shown that there has not been any harsh or rigorous administration, and that the penalties imposed have not been disproportionate to the offences committed. It is just as well, therefore, that the maximum penalties provided by this Bill should be of a severe character. The Courts will thus be afforded an excellent opportunity of marking their sense of discrimination between offences of smaller and greater gravity.
– The provision of such penalties may also have a deterrent effect.
– Exactly.
– Clause 73 provides that if a Commonwealth officer omits to make a certain entry in a book, he may be imprisoned for seven years.
– In reply to the honorable senator I would point out that the omission by a Commonwealth officer to make an entry may be fraught with the most serious consequences, not only to the Commonwealth, but to other individuals. An officer may wilfully and deliberately omit to make an entry as a part of a scheme of fraud in which he is engaged, and in such cases the Court should have power to inflict a heavy penalty. If, however, it should transpire that the omission is not the result of design, the offender may be imprisoned for only seven days, or until the rising of the Court.
– There is no minor punishment provided, but only the major punishment.
– The major punishment is always set out. But the penalty actually inflicted may range from the maximum to the vanishing point, according to the nature of the offence.
– If an officer omits to furnish a report he may be imprisoned for seven years.
– The consequences of such an omission may be very far-reaching. I repeat that the omission may bo part of a scheme of fraud which is being perpetrated on other individuals and on the Commonwealth. When the Bill enacts seven years’ imprisonment as themaximum penalty for this offence, it is not an intimation that the Court must impose that penalty, but rather that for the most serious offence of this character a greater punishment cannot be inflicted. In a case of no importance no penalty may be exacted. An omission may be the result of negligence on the part of an officer rather than of criminality, and the Court will deal with him accordingly. I have looked at the clauses which were being referred to by Senator Gould at the time Senator Senior drew his attention to clause 25. If honorable senators will look at clause 17, they will see that it does seem, to use the vernacular, to be “a little over the odds.” It says -
Where a person convicted of an indictable offence against the law of the Commonwealth has been previously convicted of any offence against the law of the Commonwealth or of a State or of a Territory, and sentenced to a term of imprisonment with hard labour for one year or longer, the maximum term of imprisonment in respect of the offence of which he is convicted shall be double that provided by the section creating the offence.
Thus if a man charged with an offence under this Bill has been previously convicted of an offence against the law of a State or of the Commonwealth, and has served a sentence of twelve months’ imprisonment or upwards, the maximum penalty to which he may be subjected will be doubled. For example, clause 25 provides -
Any person who, within the Commonwealth or any Territory -
It will thus be seen that if he had previously served a sentence of twelve months or upwards for an offence against the law of a State or of the Common wealth, the maximum penalty which could be inflicted would be double death.
– That is easily imposed.
– Perhaps it means not only that the offender shall be hanged, but that he shall also be drawn and quartered. Clause 26 provides -
Any person who knowingly attempts -
Penalty : Imprisonment for life.
Under that provision if a person had previously served twelve months’ imprisonment with hard labour for an offence against the law of a State or of the Commonwealth he would be liable to double imprisonment for life. Of course, we have to recollect that these are maximum penalties, and that the Courts are not likely to enforce them. But it is suggested at least that the phraseology of clause 17 might with advantage be modified. In conclusion, I hope that in Committee the Minister will be able to give us an assurance of the friendly attitude of his colleague in another place towards certain suggestions which were made there. Like Senator Gould, I regard this Bill as one which imposes on the Government the duty of drafting its clauses, and of giving the Senate guidance as to whether or not they are appropriate to the matters dealt with in it. We cannot possibly have recourse to the authorities which have been used in the drafting of the measure. I hope that its effect will be to harmonize and to unify our system of procedure in case of offences against the Commonwealth, as well as to harmonize and unify our system of penalties. I trust that as the result of its enactment there will be a greater approximation throughout the Courts of the States to something like a standard in regard to the offences which they will have power to punish under it. When the Bill becomes law I hope that there will be no occasion for us to follow the precedent which has been established of subsequently introducing amending Bills. The measure represents practically a codification of the existing law, and consequently it ought to be practically insusceptible of amendment for some considerable time at least.
– I have to thank honorable senators opposite for their treatment of this measure. I merely wish to assure Senator Keating that Mr. Glynn, who was responsible for certain suggestions in another place, has since satisfied himself that the amendments which he thought were necessary are quite unnecessary. In regard to clause 17, Senator Senior will find that it deals with double penalties only where terms of imprisonment are provided. I am quite in sympathy with Senator Gould that we should reduce any penalties which may be regarded as too drastic. But we have to recollect that the Bill provides for maximum penalties, and that the nature of the punishment inflicted will rest entirely with the presiding Judge or magistrates. I am pleased to say that at the beginning of this enlightened twentieth century the legal gentlemen who usually fill these exalted positions do not exhibit that harshness which characterized many of their predecessors in years gone by. I believe that the Bill will be administered in a much more humane fashion than were some of the measures of a similar character in the various States.
Question resolved in the affirmative.
Bill read a second time.
In Committee:
Clauses 1 and 2 agreed to.
Clause 3 (Definitions).
Amendment (by Senator Gardiner) agreed to -
That to the definition of “ Commonwealth Officer “ the following words be added : - “ and includes an officer of the Commonwealth Bank.”
Clause, as amended, agreed to.
Clauses 4 to 16 agreed to.
Clause 17 -
Senator SENIOR (South Australia) opportunity afforded for discrimination under this clause. It is so very sweeping in its present form that the Committee should pause before agreeing to it. A person may have committed an offence under a State law, and, by this clause, if he commits an offence for the first time under the law of the Commonwealth, he becomes liable to double the penalty provided for the offence. That is not in keeping with the practice under the Stale laws. A man found guilty of a second offence under a State law is not necessarily liable to double the maximum penalty provided for his offence. He may have committed an offence the maximum penalty for which is a fine of £5, but it does not follow necessarily that, if he commits a second offence, he is liable to a fine of £10. Under this clause, however, if a man has been convicted of an offence under a State law, and then is convicted of an offence under the Commonwealth law, the penalty for that offence is necessarily increased to double what it would have been for a first offence.
– That is the maximum.
– I grant that, but I am not in favour of too severe a maximum penalty, because an offender may be unduly punished because of the state of a Judge’s liver. If a Judge is in an irritable mood, he will see only the maximum penalty, and the man convicted before him will get it.
– Each of the offences may have been committed in the assertion of a man’s supposed right.
– That is so. We should view this question in the light of the twentieth, and not of the fifteenth, century.
– Does the honorable senator contend that no cognisance should be taken of an offence committed against the law of a State?
– Not to the extent of doubling the penalty provided for the offence. That is to regard the offender as guilty of an offence twice as heinous as that which he has previously committed. An offence under the Commonwealth law may carry with it a penalty of seven years’ imprisonment, and, under a State law, of two years’ imprisonment. If the offence were committed a second time under a State law, and this provision were enforced, the offender would be liable to four years’ imprisonment, but, if it were committed a second time under the Com- mon wealth law, he would be liable to fourteen years’ imprisonment. I point out to honorable senators that, if an offender was guilty in the first case of an offence under the Commonwealth law, and in the second case of an offence under the State law, he is not necessarily liable to a double penalty. I think the clause should be modified in some way. The offender should be punished according to his offence, and not because, as the result of some accidental happening, his second offence is against a Commonwealth law, and not against a law of a State.
– I see no difficulty about the clause. It appears to me to be quite clear that if a person is an offender for a second time, whether his first offence Be against a State law or a Commonwealth law, it will, under this clause, be within the power of a Judge to impose a sentence up to double the maximum penalty provided for the offence he has committed. It does not follow that the maximum penalty, for which provision is made, will be imposed. If the offence is one which could be met without the imposition of a severe penalty, I have no doubt that a severe penalty will not be imposed. If the clause made a hard-and-fast provision that double the maximum penalty should in every such case be imposed, I could understand the objection raised by the honorable senator. It will not, I think, be denied that a person convicted for the second time of an offence should be liable to a heavier penalty than a person convicted for the same offence for the first time: That is really all that the clause provides for.
– Let me, for the sake of illustration, apply the principle to which I object in this clause to the operation of clause 73. It is provided under the latter clause that any person who, being a Commonwealth officer, fraudulently and in breach of his duty, “ omits to make an entry in any book or record “ shall be guilty of an indictable offence, for which the maximum penalty provided is imprisonment for seven years. The omission may be accidental, and the wrongdoing may be no crime. The person charged may be found guilty, and may later, under the same clause, be found guilty of omitting to furnish a return of property, and in that case, under clause 17, he is to be held liable to a penalty of imprisonment for fourteen years.
– The honorable senator argues that a person may be liable to twice the maximum penalty attaching to an offence, though he may be guilty of only a trivial offence against the law?
– The clause with which we are dealing, I remind the honorable senator, covers big and little offences.
– The honorable senator has overlooked the use of the word “ fraudulently “ in clause 73.
– Fraud may have to be proved, but, after all is said and done, the fraud may be more in the imagination of the person imposing the penalty than in the mind of the person charged with the offence. I have gone through the Bill very carefully, and it has struck me that the penalties for which provision is made are, in nearly all cases, out of all proportion to the offences for which they are to be imposed. There are penalties of imprisonment for seven years, fourteen years, and imprisonment for life provided for, and this clause 17, in making provision for double the maximum penalty attaching to an offence, in my opinion, goes much too far. When the penalty is altogether out of proportion to the crime, the tendency, as Senator Gould pointed out, would be for the jury not to convict, and so the crime would go unpunished, because the Legislature did not make the penalty commensurate with the wrong done.
– The more we look at clause 17 the more apparent it is that it is entirely inappropriate to the Bill, although it might be appropriate in a uniform system of law, such as in a single State. There seems to be no authority or precedent for it except that of the Queensland Criminal Code. Senator Senior has uncovered another curious anomaly. If a man offends against a State law and receives imprisonment for twelve months or more with hard labour, and then commits an offence against the Commonwealth, he becomes liable - although he has never previously committed an offence against the Commonwealth - to double the maximum penalty fixed by the Commonwealth law. If, then, he commits another offence against the State, there is no provision for a double penalty there, and we have no power to direct that there shall be one. The same Judge exercising State jurisdiction cannot say to him, “ The maximum penalty in your case is double that laid down by the Statute,” although he has previously said it to him in regard to his offence against the Commonwealth. If a man commits a serious offence against the Commonwealth and is imprisoned for five years, and afterwards commits a grave offence against a State, obviously, to be fair, the State Court ought to be able to regard the Statute penalty as one which as a maximum should be doubled. That is a curious anomaly. This doubling of the penalty would be all right if we were dealing with one system of law, but here we are dealing with seven. The provision is altogether out of place in this Bill. Senator Gardiner said, in reply to Senator Senior, that there was some justification for doubling the maximum penalty where a man committed a similar offence, but it does not follow that the offences are similar. A man may be sentenced to twelve months with hard labour by a State Court for deserting his wife or leaving his children without means of support. It might happen that he thought he had some justification fir his action. He might have had a wrong conception of his duties in that regard, or have had troubles which he might not like to ventilate in Court, preferring to sit in stony silence and let the case go against him. Yet if, afterwards, he commits an offence against the Commonwealth for which the Statute penalty is seven years, the maximum penalty in his case becomes fourteen years. On the other hand, a man may commit a very serious offence against the Commonwealth, and rightly receive a sentence of six or seven years. He may afterwards commit a grave offence against the State, but we cannot direct the State Courts to regard him as having committed a previous offence and in consequence to deem that the penalty provided by the State Act is doubled. We should amend or omit the clause. If we cannot apply the principle all round, we should not apply it to the Commonwealth alone.
– Would it do to leave out the words “ or of a State “ ?
– It would be better to leave the clause out altogether. The Minister’s suggestion would mean that if a man committed an offence against the Commonwealth, and was sentenced to twelve months’ imprisonment, and then came up for another offence, the maximum penalty would be deemed to be doubled. I object to that. I take no exception to the penalties provided in the Bill, because they are maximum penalties, and I do not think it means that they will be enforced to the full. We must have a good, strong maximum penalty ; but those provided ;in the Bill afford such a wide range of choice for the Judges, from nothing up to a very severe sentence, that ample margin is allowed the Courts to mark their sense of the gravity of the offence in the case of a man who comes before them for the second or third time. It would be much better to leave the clause out altogether, because we can apply the principle only in a piecemeal way, and it will involve a number of unfair and unjust anomalies. In fact, each time Senator Senior has spoken he has uncovered a new anomaly, and in practice I think further ones would be discovered. If the same Judge could double the penalty in regard to a Commonwealth offence, but not with regard to a State offence, the public might turn round and say, “ Justices’ justice is coming into the Supreme Court,” for people often speak of justices’ justice, unmeritedly and undeservedly, with obloquy and contempt, when comparing penalties imposed on persons.
– Is there any necessity for the clause?
– No. The range of maximum penalties is so high that great latitude is already allowed the Judges in dealing with second offences.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [4.34].- The arguments adduced by Senator Senior and Senator Keating show clearly and unmistakably that it is undesirable to have a clause of this character in the Bill. Another clause provides that any person who in the Commonwealth or any Territory takes unlawful soundings shall be guilty of an indictable offence, and liable to imprisonment for two years. For the purposes of this clause all sound- ings taken in territorial waters of the Commonwealth or any Territory of it are to be deemed unlawful unless made under the authority of the King, the Commonwealth Government, the State Governments, or the Government of a Territory, or reasonably necessary for the navigation of the vessel from which they were taken, or for any purpose in which, the vessel from which they were taken was lawfully engaged. That is not even fixed for- a time when the country is at war. Many a man might commit an offence under that clause, and really not be a criminal at heart at all, but the circumstances might induce the jury to convict him, and he might be sentenced to two years’ imprisonment for an indictable offence. He might afterwards be brought up for some other offence against the Commonwealth, and find that in his case the maximum penalty became fourteen, instead of seven, years. It may be said that the Judge can make the penalty as low as he likes, but the J udge has to interpret the law so far as he can in accordance with the intention of the Legislature, which is shown by tho wording of the Statute. It would be better to increase the maximum to ten years, and leave the matter in the discretion of the Judge, than to pass this provision.
– It is mandatory; it says the maximum shall be doubled.
– Of course the penalty mentioned is only a maximum, but the Judge before passing sentence asks the police what the man’s history or record is. That does not come before the jury in the first instance. The jury are supposed to find upon the evidence, and not upon the fact that a man has been previously convicted ; but the Judge, in determining the sentence, naturally asks for the man’s record, and takes it into consideration in awarding punishment. That is quite sufficient where drastic punishments are provided to vindicate the law and protect the interests of the public and the Commonwealth. There is also a power in the Bill to impose indeterminate sentences on habitual criminals, the length of the sentence depending on the prisoner’s condue; while in custody. That provision protects the public against habitual criminals. A man who persistently com mits burglaries should not be let loose to prey upon society at any time. Take, again, the case of a man who commits aft offence against a child, and the offence is repeated and repeated. Is it not right that the offender should be punished? Of course the public, as well as children, should be protected. The provision leaves the Judge free, by means of an indeterminate sentence, to say whether an offender of that type should be allowed to go free once more. Once we give to the Judge the power of declaring a man to be a habitual criminal, we have given all the power which is necessary and desirable for the protection of the public interests generally. If it is proposed to double the punishment for an offence which a man may commit afterwards, and which in itself may be comparatively conventional, why should it not be provided that if a man has been convicted before, the maximum punishment for the second offence should be three times the punishment for the first offence, and so build up a code of punishment under which no man would have an opportunity to reform himself? The object of the Legislature has always been to give a man punishment severe enough to vindicate the public - to punish the man and, at the same time, if possible, to secure his reform. Under a system of indeterminate sentences a Judge will have all the power that is necessary if a man has been convicted three times. 1 urge the Minister to allow the clause to be eliminated, because, without its enactment, plenty of protection and power is given.
– A good deal of what Senator Gould has said would be quite applicable if the clause provided that the maximum term shall be doubled. It must be borne in mind that what we are dealing with is the maximum term, and not the term of imprisonment which is actually to be meted out. It has been admitted by Senators Gould, Keating, and Senior that the question at issue is what the maximum term shall be. I think it is generally acknowledged that in every case wo have to leave a discretion to the Judge.
– But this clause leaves nothing to his discretion.
– It does, because a maximum term is prescribed. It does not seem to me that there is much necessity for the clause, but I take it that it has not been included in the Bill just for the fun of the thing.
– It was taken out of the Queensland Criminal Code.
– It was not put in that code for the mere fun of putting it in. Probably the Queensland official who drafted the provision had what appeared to him to be good reasons, and, no doubt, the Commonwealth officer had what he deemed good reasons for lifting the provision out of the Queensland Act.
– Into which it was possibly lifted from another Act.
– At a later stage, perhaps, we may hear further reasons from the Minister for retaining the provision. If he will consent to the omission of the words “ or of a State,” I think it will remove the chief objection of Senator Senior to the clause, namely, that it creates a grave anomaly. It seems to me an anomaly to give an advantage to the States, so to speak. That is to say, the clause gives our Court the power to double the penalty for an offence of which a man has been convicted twice in a State. We cannot say to the States that they shall have the same power as the Commonwealth in this regard. The Minister has indicated that he is willing to consider the advisability of striking out the words “ or of a State.” If the words are omitted, and the Minister desires to retain the clause I will support it. The clause seems to me like a chip in porridge. It does not matter very much whether it is in the Bill or not.
– You are not a prisoner.
– I may be some day, but in every case the prisoner has to depend upon his own record and the fair-mindedness of the Judge.
– Do not run away with the idea that clause 23 protects us.
– Senators Keating and Senior base their objections to the clause mainly on the ground that there is an anomaly in allowing the State to be brought into the case at all. If that anomaly is removed, what serious objections can be offered to the provision ?
Senator GARDINER (New South Wales - Vice-President of the Executive
Council) [4.48]. - There has been a real reason given for striking out the words “ or of a State,” and I am prepared to assent to their deletion. As soon as I intimated my willingness to omit the words there was a demand made upon me to drop the clause. If it is the view of honorable senators generally that there should be no extra punishment provided for second offences they can have their way, but I hope that they will take no step of the kind. In this Bill we are not fixing any specific penalty. We are providing a system under which a Judge may impose a penalty. He may sentence a second offender to a term less than the maximum. If honorable senators generally think it is right that a second offender shall not be liable to a greater penalty than a first offender, the decision rests with them. Personally, I think that the clause is a necessary and very wise provision.
– Would a Judge have any option but to inflict a double penalty on a second offender?
– Certainly he would have an option, because the clause simply provides what the maximum penalty shall be.
– Suppose that a Judge sentenced a man to twelve months’ imprisonment, and that the man is brought before him for trial at the end of two years, what then?
– For a fraud against the Customs Act an offender may be sentenced to two years’ imprisonment. If it is contended that the provision for a maximum penalty will influence a Judge, a man may make sufficient money out of a case of fraud against the Customs to be able to run the risk of being imprisoned again. I am prepared to accept an amendment to omit the words “ or of a State,” so as to make the clause applicable to the Commonwealth and its Territories. That will do away with the first objection of Senators Keating and Senior. We are very anxious to get the Bill passed ; in fact, its passage was wanted last week. I do not wish to strike out a clause by way of an experiment, as it might lead to a sitting of the Senate on Wednesday next. Probably I ought not to have put forward that suggestion. Unless some better reason is advanced for a change I do not see my way clear to consent to the clause being struck out; but, of course, the matter is in the hands of the Committee.
– Why does the Minister propose to except States when he does not consider it right to except the Territories 1
– I was prepared to except the States to meet the desire of Senators Senior and Keating, so that that anomaly should not be retained in the Bill. I do not know whether we have any convictions in Territories, but I would remind the honorable senator that the Territories are part of the Commonwealth.
– Hot according to this Bill.
-The Territories are under the control of the Commonwealth Government. I suggest that if we legislate to meet exceptional cases, we shall be going out of our way. If honorable senators really wish to improve the clause in the direction they have pointed out, they can move for the omission of the words I quoted, but I hope that the clause will be allowed to remain as it is.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [4.52].- I ask the Vice-President of the Executive Council to keep in mind the fact that according to the particular offence a maximum penalty is provided for. For instance, for forgery there is one maximum, while for larceny or burglary there is another maximum. Whatever crime it may be, a maximum punishment is laid down. In fixing the penalty to be awarded, the Legislature Has always regarded the gravity of the offence. It is perfectly true that a Judge need not inflict the minimum, but what does that mean? It is tantamount to saying, “ Here is a code making the maximum punishment for every offence imprisonment for life, and the Judge shall determine whether the penalty shall be imprisonment for a week, or for five years, or for life.” It limits the power of the Judge, who, whatever his own opinion may be, will say that the Legislature did not regard one offence as being as heinous as another offence, and that, therefore, that fact must be taken into consideration. It has been urged that a Judge will have the power to double the sentence. A Judge may have that power, but at the same time he may say, “ The offence was of so venial a character that I shall give a light punishment.” I would point out to honorable senators that if a man who has been previously convicted is put on trial for a particular offence, the circumstances may show that the offence was comparatively venial or slight, and the Judge has the right to exercise a discretion as to the period of punishment. There are some Judges who, though most estimable men in themselves, have an extreme horror of certain crimes, and are prepared to inflict very severe punishment.
– They ought to be removed from the Bench.
– Every man has a weakness in his character. One Judge has a great detestation of one offence; another Judge has a horror of some other offence, and he may be quite above suspicion as regards honesty, integrity, and ability. If we strike out the word “ State,” we shall proclaim to the world that this Parliament is desirous of inflicting vindictive punishment upon persons who commit certain offences. Surely it is very much better that we should be satisfied to visit offenders with reasonable punishment.
– As a general rule, does the honorable senator attach more importance to a second than to a first offence 1
– I do.
– That is why this clause has been inserted.
– The Judge will be acquainted with all the circumstances of any case, and, in the light of that knowledge, will determine the punishment which is to be inflicted. As a result, one man may be sentenced to twelve months’ imprisonment for a first offence, whilst another man may receive two years’ imprisonment for a second offence. If we carry our thoughts back a century, we shall recollect that then the law was full of vindictive punishments. The death penalty was inflicted for numerous offences. Transportation was the punishment for many offences which to-day would be amply punished by a fortnight’s imprisonment. We do not desire the sympathies of juries to prevent them from convicting criminals. It is well that we should bear this aspect of the matter in mind. We know that many a man was sent out to Australia for a very venial offence - that the brand was put upon him for a breach of the law which to-day would be fully punished by fourteen days’ imprisonment. Let us seek to provide for adequate, but not for vindictive, punishment which may influence juries in the direction of refusing to con.vict accused persons.
.- As a practical illustration of Senator Gould’s contention that a maximum penalty is regarded by a Judge as indicative of the punishment which the Legislature thinks should be inflicted for a prescribed offence, I may be pardoned for mentioning a case with, which I was connected in Tasmania. Senator O’Keefe will probably remember it, although he was in no way a party to it. A few years ago, I was engaged with another member of the legal profession as counsel in the defence of three young men who were charged with having stolen, and with having received knowing it to have been stolen, a certain quantity of mineral, the product of a mine. The case engaged a lot of attention, and lasted for three days. Counsel for the accused addressed the jury, and the Crown Prosecutor also addressed them at some length. The jury retired, and for some time were in doubt as to their verdict. The Court was therefore adjourned, and after the adjournment the jury intimated that they had arrived at a decision. When they were brought into Court, the place was crowded, quite a number of persons present having come from the locality where the offence was alleged to have been committed. When the jury were asked whether they found the prisoners at the Bar guilty or not guilty, the foreman, after some hesitation, replied, “ Not guilty “ and cheers at once burst forth - cheers which, after some difficulty were suppressed. A number of persons present accepted the verdict as one pf not guilty, and this result was accordingly telegraphed to the wives and relatives of the accused. But, immediately the applause had been quelled, the foreman continued, “ Not guilty of stealing the tin, but guilty of receiving it knowing it to have been stolen.” When these words were uttered there was a tremendous sensation. The Judge hesitated, and then asked if there was anything against the character of the accused. He was told that there was not, and he then proceeded, in tense silence, to pass sentence. He said : “Prisoners at the bar, the jury have found you guilty of receiving - they have found you guilty upon the second count in this information. You were charged with stealing, and also with receiving this property knowing it to have been stolen. Had the jury found you guilty of stealing property, the product of a mine, the maximum penalty which, under the Statute, I could have imposed would have been seven years, and, accordingly, I would have sentenced each of you to two years’ imprisonment But the maximum penalty for receiving property, knowing it to have been stolen, is fourteen years’ imprisonment, and, as the jury have found you guilty of this - the greater - offence, I feel that I ‘ must mark my sense of their verdict and of the distinction which has been drawn by the Legislature between these two offences. In the circumstances, I sentence each of you to five years’ imprisonment.” In that case the jury believed that they were letting the prisoners down lightly. Apparently they had compromised and found the accused guilty of receiving, being quite unaware of the fact that they had found them guilty of an offence for which the Legislature had prescribed a higher maximum penalty.
– Not knowing that there was a silly law in existence.
– It is a wellknown maxim that the receiver is worse than the thief. If there were no receivers there would be no thieves. This case was tried in Launceston by the late Mr. Justice Inglis Clark. If we provide that the maximum penalty prescribed in certain circumstances shall be double that set out in the Statute, it will be a clear indication to the Court that there shall be a corresponding distinction drawn between the punishments meted out to the different offenders. I note that the Minister has recognised the anomaly which will arise if this provision is to apply to previous offenders against the law of a State. I repeat that ample scope is given for a Judge to mark his sense of discrimination between offences of various degrees of gravity. The Courts will take into consideration whether an accused person is a first offender, a second offender, or a habitual offender, and will treat him accordingly.
.- It seems to me an anomaly that a clause of this character should find a place in this Bill. I recognise that heavy penalties are provided for every crime. Clause 29, for example, affirms -
Any person who, by violence or by threats, or intimidation of any kind, hinders or interferes with the free exercise or performance by any other person of any political right or duty, shall be guilty of an offence.
Penalty : Imprisonment for three years.
Under the clause which we are now considering, a Judge would have the power of inflicting vindictive punishment. To clothe him with such a power is, I think, undesirable. We ought not to authorize him to duplicate punishment in the case of a man who happens to have served a sentence of one year’s imprisonment for a previous offence against the law of the Commonwealth or of a State. Take the case of the forgery of a Commonwealth document for which a penalty of ten years’ imprisonment may be inflicted. We know that a Judge would not impose the maximum penalty for a first offence. But if a man had been twice convicted of a similar offence, the Judge might, under the clause relating to the indeterminate sentences, imprison him for life. In view of that clause I submit there is no need for the provision which we are now discussing. It cannot be urged that a man who has committed only two offences is a habitual criminal. I am opposed to this clause, which I think is quite unnecessary. It is all very well to say, as some honorable senators have said, that Judges will not exercise the power given them under this clause; but, if that be so, of what use is it to insert such a clause in the Bill ? We know what Judges have done in the matter of inflicting punishment even for trivial offences. Many years ago a case occurred in which a man who stole property of the value of £2 was sentenced to seven years’ imprisonment; whilst, at the same Court session, a man who committed a forgery involving a loss of hundreds of pounds was sentenced to only twelve months’ imprisonment.
– There is a case on record of a man getting two years’ imprisonment for stealing eight pennyworth of baking powder.
– The clause gives a Judge the power to double the maximum penalty attached to an offence if the offender appears before the Court for a second time. It is quite unnecessary, especially in view of the fact that in the very next clause provision is made to enable the Court to treat an offender as a habitual criminal.
– On conviction for a third offence.
– That is so; but there is nothing like that in the State laws. We should be the last to clothe Judges with undue powers to impose severe penalties. The penalties already provided for in the various clauses of the Bill are quite severe enough, and, in my opinion, it is quite unnecessary by this clause to enable a Judge to double the penalty attaching to an offence. Justice is not procured by the imposition of unduly drastic penalties. We know that juries very often fail to convict an offender because of the severity of the penalty attaching to the offence with which he is charged.
– I shall vote against this clause and in support of any amendment that may be moved upon it. I regard it as an outrage in a Bill of this description. Some of my friends have been so unfortunate as to have been sentenced to imprisonment for a year or longer for instigating a strike. Let me tell honorable senators that they would not hesitate in similar circumstances to repeat their offence under Commonwealth law, and, under this clause, power would be given to the Judge trying them to double the penalty attaching to their offence. I am ashamed to be associated with a party that would insert such a clause in a Bill. I feel confident that if this proposal had come up for consideration last session there would have been no more bitter and strenuous fighter against it than the VicePresident of the Executive Council. The honorable senator would have been with the rest of us in striving against it, and would have held up the measure for hours before he would allow such an outrage to be perpetrated.
– I should like to ask of what use clause 17 is when, under clause 18, a Judge is given full power, in the case of a third offence, to treat the offender as a habitual criminal ? Does the Minister think for a moment that a Judge dealing with an offender appearing before a Court for the second time would not impose upon him a higher penalty than he would impose upon a first offender? Undoubtedly he would, and why should we make provision that he must double the sentence that was in his mind ? The clause means that, for the second offence, the Judge must impose a heavier penalty than he would otherwise impose, or it means nothing at all.
– It means that if the Judge imposes the maximum penalty it shall be a heavier penalty than for the first offence.
– Will the honorable senator answer the objection that if the maximum penalty is given for the first offence it would, without this clause, be impossible to impose a more severe penalty for the second offence?
– The penalties provided are amply sufficient for any crime dealt with under the measure. The Government do not, I suppose, desire that a man should be decapitated the first time he sneezes, but the policy of the Bill seems to be that there shall be nothing left of an offender when a Judge has done with him. I refer honorable senators to clause 84, under which it is provided that a man may be imprisoned for two years if he takes any unlawful soundings, and under sub-section 4 of the clause it is provided -
Any figure or word or sign representing a figure (other than the printed figures appearing on any official or recognised map or chart) appearing on any map or sketch, of any portion of the const or territorial waters of Australia, or of a Territory, shall, in the absence of satisfactory proof to the contrary, be deemed to be a record of an unlawful sounding.
A fisherman living in a seaport may know that the soundings taken seven years ago are no longer correct. He may be a foreigner, and, having no more in his mind than a desire to secure the safety of his little craft, may mark an official map with figures. If he does that, there will be ground immediately for the institution of a prosecution against him for having made unlawful soundings, because he will be in possession of an official chart marked with figures that are not official figures. He would be liable to a penalty of two years’ imprisonment under clause 84. That might be shown to be his second offence; he might previously have been convicted of drunkenness or some other trivial offence, and he would then for the offence of making unlawful soundings be liable under the clause now before the
Committee to imprisonment for four years. There is no real need for clause 17, and I am satisfied that the common sense of the Committee will reject it, especially in view of the fact that the penalties provided by the Bill are stringent enough without it.
– I did not intend to speak again on the clause. I take no exception to members of the Opposition having a field day on this Bill, but when the opposition comes from those of our own household, it is indeed hard to bear. Senator McDougall has made a reference to the course which I would have followed if this measure had been before us last session, but he has overlooked the fact that my attack would have been as a member of the Opposition upon the Government of the day, and not as a loyal supporter upon the Government I was returned to support. The honorable senator has referred to clause 17 as a drastic clause for dealing with strikes, but it has nothing whatever to do with strikes.
– It might have.
– Honorable senators have referred to the drastic penalties provided for in the Bill. It would be better for them to read the Bill. They will find that for one offence after another a penalty of only one year’s imprisonment is provided. Do honorable senators desire the Bill to provide that the penalty to be imposed upon a second offender shall be no greater than that imposed for a first offence? Do honorable senators desire that a man who deliberately commits a second offence - it may be within a very brief period of his release from imprisonment for his first offence - shall be liable only to the same penalty as a first offender ? Honorable senators speak as though the measure dealt only with penalties for long terms. The penalty for one offence is seven years’ imprisonment, for another two years’ imprisonment, for a third two years’ imprisonment, and so on. And I remind honorable senators that if they reject this easy method of providing in one clause once and for all for second offenders, it will be necessary to introduce a measure in which provision will be made for an increased penalty for every second offence.
– That would be better than to deal with the matter wrongly in the first instance.
– It would be better if the Bill made provision for what Senator Senior has contended, and compelled a higher penalty in the case of every second offender. I have to thank Senator Gould for putting the matter clearly before the Committee. The honorable senator went out of his way to assist me in connexion with this Bill by pointing out that honorable senators who insisted that the clause makes the penalty higher were labouring under a mistake. It does not. It simply makes the maximum higher if the maximum penalty is imposed. If the clause is rejected the penalty for a second offence will be left exactly the same as for a first offence. Without this clause a man who, after serving twelve months’ imprisonment for an offence, robbed the Commonwealth through the Customs of a considerable amount, could be given no additional punishment as a second offender, and that might be a greater injustice than any that could arise under the clause in the way honorable senators have suggested. I wish honorable senators to understand clearly that where we are dealing with confirmed criminals we must make provision for severe penalties. The Bill is not designed to deal with strikes or strikers, to which Senator McDougall referred, in any way whatever.
– The clause gives the opportunity. It says, “ or of a State.”
– I have offered to strike out those words, but no one has accepted my offer.
– Move their omission yourself.
– I do not propose to do so, because I am satisfied with the Bill as it stands; but if any other honorable senator does not like these words, I am prepared to meet him. I shall not agree, however, to strike out the whole clause, because that might mean that wherever a penalty is fixed for a first offence, we should have to put in a new clause, providing for an increased penalty for a second offence, if the Committee thinks an increased penalty is necessary.
– How do the States manage with regard to second offences?
– So far as the State Acts are concerned, their ‘maximum penalty, in almost every case, is more drastic than ours. If the maximum penalty had to be inflicted in every instance, there would be something in the arguments of Senator Senior and others; but we are proposing extra punishment for the man who offends a second time.
– Your argument would mean that the maximum is always going to be imposed in the first case.
– No doubt, where the penalty is imprisonment for only twelve months, the full term will always be given, because offences involving less than twelve months’ imprisonment will be dealt with under summary jurisdiction. The omission of this clause might seriously interfere with the drafting of the whole measure. A man sentenced to twelve months’ imprisonment for a first offence would be liable to only twelve months’ imprisonment for a second offence. Senator Barker objects bo the clause simply because it is drastic, and justifies himself by referring to clause 18, which is immensely more drastic. If the Committee follow his line of argument, they will also strike out clause 18, and so on, until there is nothing left of the Bill. My view is that a man who offends twice should be liable to a greater penalty than the man who offends only once.
– If there is a parity in the offence. The offences may not be of the same character.
– We are leaving that to the Judge to decide. We are not laying down any hard-and-fast rule, but are simply setting out the principle that an individual found guilty on two occasions should rightly be subjected to a higher penalty than the individual who is found guilty on one. The question of the difference between the offences we leave, as all matters of that kind must be left, to the common sense of those who administer the laws. It is a serious thing to strike out a clause like this. We should aim at making our laws as readable and easily understandable as possible. If we strike out a clause because we are making a short-cut somewhere else, and have to draft something fresh to take its place when we come to the other clause, we shall not be making much headway.
– That may not be necessary.
– If not, we shall have to leave a blank. We must have a distinction between the man who offends the first time and the man who finds it profitable to offend. I am prepared to accept an amendment to strike out the objectionable words, “or of a State,” and I hope that, with that amendment, the Committee will accept the clause as it stands.
.- I move-
That the words “ or of a State “ be left out.
The punishment proposed to be meted out to an offender seems somewhat vague, but it does not convey to me the idea, that, when convicted a second time, he will get double the maximum penalty. A man who offends a second or third time should certainly be punished more severely than the man who offends only once. Some persons are more properly described as human hyenas, who should be locked up all the time. They have no sense of the rights or property of other people, and the proposal to deal with them more drastically than with first offenders is quite right. Later clauses dealing with that phase of the question will have my support.
– When I spoke earlier I thought, judging from Senator Senior’s objections to the clause, that he himself would move the omission of the words “ or of a State,” and, as the argument has developed, he has found additional objections. In fact, anybody who dares to say a word in favour of the retention of the clause seems likely to be put on a level with what is known as a “hanging Judge.” I have no more desire than any other honorable senator to be unduly severe towards unfortunates who come before the Courts, but there must have been some good reason for putting the clause in the Bill, although I am going to vote for the omission of the words “ or of a State,” because of the anomaly involved.
– You will be creating a worse anomaly.
– I know the honorable senator is strongly opposed to the clause altogether; but suppose the case of a Customs official acting in collusion with an importer, and making a fair amount of money out of the Com monwealth by committing an offence. He is brought before the Court, and sentenced to the maximum penalty, because of the gravity of his offence. The man has put a fair amount of money away before being found out, and serves the maximum penalty. Later on we may suppose that he is again in a position in the Commonwealth Service where he has an opportunity of committing a similar offence. If the clause is struck out altogether, it will not be possible for the Judge to inflict any greater punishment than for the first offence, and it will pay him to run the risk of undergoing a second term. The penalty may be only twelve months’ imprisonment, as indicated by Senator Gardiner.
– Your argument is that every penalty will be the maximum.
– My argument is that these things have always to be left to the discretion of the Judge. The very term “ maximum “ shows that. It does not follow that the maximum set out in the Bill will always be imposed, but I am supposing a case where the maximum penalty is very small. If the clause is left as it stands, it is not mandatory on the Judge to impose double the maximum penalty in the case of a second offence, but is left to his discretion. The discretionary powers of the Judges are practically unlimited. We shall be going too far if we strike the clause out altogether. It will be made quite safe and reasonable if we carry Senator Grant’s amendment. If those words are struck out, I shall vote for the retention of the clause as amended.
– The whole force of Senator O’Keefe’s argument is that, on hearing a case against a prisoner for the first time, a Judge may inflict the maximum penalty.
– Only because in that particular case it appears that he should do so.
– This clause will enact a general condition applicable to every case occurring throughout the Commonwealth. Under clause 41 a person who is convicted of the offence of preventing a witness from attending a Court is liable to imprisonment for one year. If a man is convicted of any offence for which he is liable to imprisonment for ten years, the Judge will have no option but to increase the sentence, seeing that he will have the power to double the punishment. Under clause 42, for the offence of conspiracy to bring a false accusation, a Judge can award imprisonment for twenty years, instead of for ten years.
– He would not require to make the punishment more than two years unless he liked.
– Clause 17, it seems to me, gives a mandatory direction to the Judge to double the sentence which otherwise he would award. Am I correct?
– That is right.
– There can be no force in the argument which has been set up, seeing that the Judge is not to take this term as the maximum which he may inflict, but he can award a smaller penalty for the first offence. There is a margin to go and come upon in regard to the second offence,and when a third conviction occurs, there will be a still heavier sentence. The argument has been set up by Senator Gardiner that under clause 18, because a man is liable to an indeterminate sentence, therefore, the punishment is more severe. The honorable senator knows that the duration of a sentence is at the will of the GovernorGeneral. If the Government of the day believe that the sentence should be determined, that will be done. The sentence can come up for review at any time. Apparently, the spirit of the Bill is to punish the offender, and to give him the heaviest possible penalty for a very trivial offence.
– Mention a case.
– The penalty provided for the offence of taking soundings and putting figures on an official chart is altogether beyond reason. Clause 17 is a covering clause, which is applicable to the whole Bill. There is no need for the provision at all. If it is deleted, it will not weaken the Bill, but will strengthen it. It will give to the Judge all the ground he needs to go and come upon. The penalties provided for are exceedingly stiff. I am sure that if the penalties are compared with the State penalties for similar offences, they will be found to be very much heavier.
Senator GARDINER (New South Wales - Vice-President of the Executive tention of Senator Senior to the clause in which he said the penalty is too trivial. Clause 80 is intended to deal with our enemies. At the present moment there may be a man guilty of preparing a chart to enable the vessels of our enemy to enter our harbors, yet the honorable senator asserts that the penalty in clause 80 is too great. We need a drastic penalty to meet an offence of that kind. . I have no sympathy with, or time for, honorable senators who want to make it easy for our enemies to get charts of our harbors and coasts. When they attack a provision of this kind, we can readily understand what a hash they would like to make of the Bill. I hope that honorable senators will realize what they are doing when they attempt to make it easy for a man to prepare a chart for Germany, and tell us that we ought not to impose a very drastic penalty for an offence of that kind. I thought it well to let Senator Senior know what clause 80 refers to.
– To get back to clause 17, it appears, as I said before, to be taken from the Queensland Criminal Code, because the marginal note is “ Cf. Qd. C.C., s. 630.” I have looked up section 630 of the Queensland Code, and it has no provision for a double penalty. It deals with only a question of procedure when a man is charged with a second offence. It reads -
The proceedings upon an indictment for committing an offence after a previous conviction, or convictions, are required ‘to be as follows, that is to say : -
The accused person is, in the first instance, to be called upon to plead to so much only of the indictment as charges the subsequent offence :
If he pleads any plea which raises an issue to be tried by a jury, the jury are to be charged in the first instance to inquire concerning the subsequent offence only :
If he pleads guilty, or if, upon trial, he is convicted of the subsequent offence, he is then, and not before, to be asked whether he had been previously convicted as alleged in the indictment :
If he answers that he had been so previously convicted, the Court may proceed to pass sentence upon him accordingly :
If he denies that he had been so previously convicted, or will not answer directly to the question, the jury are then to be charged to inquire concerning the previous conviction or convictions; and in that case it is not necessary that the jury should be sworn afresh, but the oath already taken by them is deemed to extend to such last-mentioned inquiry.
Provided that, if on the trial of a person charged with a subsequent offence he offers evidence of his good character, the Crown may, in answer thereto, and before any verdict is given, offer evidence of his conviction of the previous offence or offences, and in that case the jury are required to inquire concerning the previous conviction or convictions at the same time that they inquire concerning the subsequent offence..
In the section there is no reference to punishment. The marginal note to clause 17 is entirely misleading. In my secondreading speech I asked the Minister to give us an assurance that the matters raised in another place have been dealt with. Mr. Groom, member for Darling Downs, drew attention to the fact that the marginal note to this clause was misleading. Yet it comes up to the Senate, and any one of us in the hurry and the urgency might imagine that there was a justification, as well as a precedent, for the clause. So far as I now know, there is absolutely none anywhere. As regards providing a double penalty, although this is a maximum penalty, it is an entirely novel proposition - a departure from all existing systems of jurisprudence. In my opinion, the range of punishment which, is open to Judges under penalties is extensive enough to give them every opportunity to make a differentiation in the penalty they impose for a second offence. I sincerely hope that the clause will not pass, as there is no justification or need for it.- It will lead to consequences which will be very anomalous. It will excite in the minds of the people a sense of the disparity of decisions, which can only lead to disregard for the law generally, and that is a tiling which none of us wishes to see cultivated in the community.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [5.53].- I notice that the Vice-President of the Executive Council alluded to clause 80, which relates to the offence of a person communicating sketches and plans to an enemy, for which the penalty of imprisonment for two years is provided. But I am under the impression that the provision to which Senator Senior referred was clause Si.
– He said clause 80, and I turned it up.
– Clause 84 provides that any person who in the Commonwealth or in any Territory takes any unlawful soundings, or makes any record of any unlawful soundings, shall be guilty of an indictable offence, for which the penalty is imprisonment for two years. Surely the Minister will see that the taking of unlawful soundings may occur most inadvertently. It is provided in sub-clause 2 that for the purposes of the clause all soundings taken in the territorial waters of the Commonwealth or any Territory shall be deemed to be unlawful unless they were taken in certain circumstances. Yet a penalty may be inflicted where the offence is committed inadvertently. There is no comparison between the offence dealt with in clause 80 and the offence dealt with in clause 84. As regards the penalty for the unlawful communication of secret information, which is provided for in clause 80, if the maximum of two years’ imprisonment is considered insufficient, by all means increase the term. I am prepared to increase the penalties to a marked degree to meet the cases of traitors or persons who want to do an injury to the Commonwealth. The Minister need not be afraid that honorable senators on this side would object to increasing the punishment for such offences, because our whole existence is dependent upon the honesty and trustworthiness of our public servants.
– We will see that when Ave go to vote on this clause.
– The Minister wants to cajole us into accepting a clause which is foreign to everything that is fair, honest, and just. The conviction of a man for having taken unlawful soundings will carry a liability to the infliction of double the penalty for some other offence. If a man has committed the offence of burglary, forgery, or rape, or any of the more heinous offences, that is to be put on one side, but if he has committed what is a comparatively venial or small offence, that is to be haled up against him, and is to justify the Judge in giving him double the sentence which otherwise he might award. If honorable senators will only exercise their common sense, they will see that it is merely playing with the question to say we will cut out the reference to any conviction under the State laws, but that any conviction for an offence under Federal law will render the man liable to double punishment for a subsequent offence. I do urge honorable senators to have some regard for the credit of the Commonwealth and of Commonwealth legislation. We ought not to allow it to be said that, in regard to the punishment of offences, this is the most vindictive legislative body in Australia. Let us make sure that we can secure the conviction of offenders by declaring that the punishment prescribed under this Bill shall not be inadequate to the offences committed. I shall vote against the amendment, and also against the clause in its entirety. The VicePresident of the Executive Council is smiling. I can just imagine the position which he would have taken up had another Government been in power and had this clause been introduced by Senator Millen. Who would have sounded the paean of battle against it more strongly than would Senator Gardiner?
– Who would have defended it more strenuously than Senator Gould ? o
– Honorable senators know that I have not given way on matters of this kind. I repeat that no man would have been more strenuous in his opposition to such a proposal than would the VicePresident of the Executive Council. All his training proclaims his anxiety to stand up against the vindictive punishment of any offender. I do hope that honorable senators will regard this question from the stand-point of what is fair and reasonable.
– What would have been the honorable senator’s attitude if he had occupied a seat upon this side of the chamber?
– I would have suggested to the Government the desirableness of withdrawing the clause.
.- If Senator Gould will do me the justice of scanning the division list, he will see that, whilst I was in Opposition, I voted more frequently with his party than he has voted with my party.
If the penalties provided in this Bill are harsh, honorable senators are quite at liberty to strike them out, or, indeed, to knock out the Bill altogether. But the measure has been introduced because it is of an urgent character, and it was only out of consideration to honorable senators opposite that we did not pass it through all its stages last Friday. Let me instance clause 82 of the Bill, which provides that any person who harbors any individual whom he knows, or has reasonable ground for supposing, to be a spy shall be liable to imprisonment for one year.
– That is not sufficient.
– I know that.
– Does the clause relate only to the harboring of spies?
– If this clause be eliminated, something will have to take its place. I wish to draw attention to the fact that our desire is to impose a heavier penalty for a second offence than for a first offence.
– Can an offender be convicted under State law of any offence of the nature of spying?
– He can. As regards previous convictions under State law, I intimated that I was willing to meet Senator Keating by consenting to have that portion of the clause struck out. There are a number of provisions in this Bill in regard to which honorable senators say that the penalties’ are too light. The measure provides, not that a person convicted of an offence a second time shall be subjected to a double penalty, but that he may be. I desire honorable senators to understand their responsibilities to the Government at the present juncture. The Bill should have been passed through all its stages last Friday. The other branch of the Legislature realized its need - recognised that it was of so’ urgent a character that, notwithstanding that there are a number of lawyers there, it was allowed to pass without amendment. Seeing that it is a measure which has been rendered necessary by the present war, I do ask for the consideration of honorable senators.
– And you will get it, too.
– Believing that, I will resume my seat.
– The Commonwealth has been in existence for fourteen years, and we are now told that this Bill is urgently required because of the war. It is all very fine for the Vice-President of the Executive Council to use the war as a reason for hasty legislation of a very doubtful character. The Bill does not deal with matters relating to the war alone, but with all kinds of offences. For the stealing of a mail bag from the Postmaster-General, or for allowing a cow to trespass-
– Surely a penalty of £5 is not too much for that.
– But it may be seven years’ imprisonment.
– It may be anything. We do not wish to leave it within the power of a Judge to do something that is unreasonable.
– Not merely within his power, but within his duty.
– Exactly. Bad as the clause was before it was amended, it is very much worse now, because it discriminates between offences against the Commonwealth and offences against a State. If a man embezzles the funds of a State and is brought before the Commonwealth Court for a second offence, the Court cannot take into consideration the fact that he has been previously convicted. On the other hand, a person who commits a second offence against the Commonwealth is to be visited with double punishment. His second offence is presumed to be of double the gravity of his first offence. It is all very well for the VicePresident of the Executive Council to say that a Judge may impose a lighter sentence on the second occasion than upon the first. The fact remains that under this clause we practically direct the Judge to inflict double the penalty that is prescribed for the first offence. I think that the clause goes beyond all reason, and I take strong exception to the Bill misleading the Committee.
– If the honorable senator will read the marginal note he will see that it does not mislead. The word used in the marginal note is “ compare.”
– When we compare the clause with the Queensland Code we find that there is a substantial difference between the two. Under the Queensland Code cognisance is taken of the fact that a man has been previously convicted of a similar offence; but under this clause we practically direct the Judge to inflict double the penalty that would be in flicted for the first offence. The VicePresident of the Executive Council has affirmed that, in some cases, the maximum punishment is so low that where a man committed a second offence a difficulty would be experienced. But that difficulty can be overcome by increasing the maximum penalty in those cases in which it is declared to be one year’s imprisonment. By enacting this clause we shall be defeating the ends of justice. If a man is liable to five years’ imprisonment for a first offence and to double that term for a second offence, a jury will probably hesitate to convict him a second time. This is not a party measure. While the Vice-President of the Executive Council is justified in defending his adopted child he is not warranted in taking up a party attitude.
– I have offered to accept any reasonable amendment.
– All the arguments advanced have been in favour of wiping out the clause altogether.
– The Bill will have to be redrafted then.
– No. The chief reason urged in opposition to excising the clause is that in some instances a Judge would not be able to increase the penalty in the case of a second offence. But, as I have already pointed out, that difficulty can easily be overcome by increasing the maximum penalty in cases in which one year’s imprisonment is prescribed.
– And in cases in which two years’ imprisonment is prescribed. There is page after page of such cases.
– Apparently the Vice-President of the Executive Council assumes that the Judge will impose a maximum penalty in every case.
– I do not assume that he will do so in any except a very bad case.
– The honorable senator appears to assume that he will. As a matter of fact, it is only in rare cases that the Judge will inflict the maximum penalty. I hope that the Committee will deal with the Bill upon its merits and not allow this clause to be whipped through at the behest of the Government when we recognise that it embodies a wrong principle.
– I do not intend to discuss the clause at length. It has already been dealt with almost ad nauseam. I wish to say that I very strongly object to the attitude and tone adopted by the Minister in suggesting that the vote on the clause may be regarded as an index of what might be called the patriotic opinions of honorable senators.
– I take that attitude.
– Then I very strongly object. I say, without hesitation, that it is a very wrong attitude for the Minister to adopt.
– “Actions speak louder than words.”
– That is worse than ever. That will not do.
– The Minister would appear to suggest that clause 17 has relation only to the traitorous offences to which he has alluded, and would provide for doubling the maximum term of imprisonment attaching to such offences in the cases of persons previously convicted of an offence. I have no hesitation in saying that I regard the penalties proposed for what are clearly traitorous offences as exceedingly light. There is, for instance, the offence of taking soundings for the use of an enemy. .
– The clause to which I referred says nothing about taking soundings for the benefit of an enemy.
– I assume that the taking of unlawful soundings would be a venial offence, unless behind it there was the intention to communicate the information to an enemy. In that case, the offence would clearly be a traitorous offence, and I should be prepared to support a proposal to increase by 600 per cent, the severity of the penalties attaching to such offences. The Minister- has adopted the attitude of the “artful dodger” in saying that the vote on this clause may be regarded as an index of our patriotic opinions.
– Is that statement in order?
– If the honorable senator takes exception to the statement, I have no doubt that it will be withdrawn.
– I withdraw the term “ artful dodger,” and say that the honorable senator has adopted a decidedly underhand and unfair attitude. There might be no similarity between the offences for which a man was convicted under a
State law and under a Commonwealth law. I consider that Senator McDougall’s argument was legitimate, and was not farfetched. The honorable senator instanced a case of a man convicted under a State law for inciting to a strike, or something of that sort. Though that might be regarded as a serious offence against the body politic, it has no relation to such an offence as the taking of soundings to be communicated to an enemy. Yet, under this clause, a man convicted for such an offence may be liable, upon conviction for an offence under this Bill, to double the maximum term of imprisonment provided for such an offence.
– Senator McDougall admitted that his interjection could be met by an amendment.
– I understood Senator McDougall to say that it was his intention to vote against the clause altogether. There are many offences under the Bill to which clause 17 would be applicable, and for the Minister to say that honorable senators, in voting against the clause, do not desire that severe penalties should be imposed for the serious offences which he indicated, is absolutely unfair. After what has occurred, I shall have no hesitation in voting against the clause as proposed to be amended, or as it now appears in the Bill.
– I do not wish to be misunderstood in connexion with what I have said as the result of my anxiety to get this Bill through this evening. I want the Bill to pass. I agree that honorable senators are entitled to debate it in a reasonable way, and to consider whether we should retain this clause providing for maximum penalties in the case of second offenders, or strike it out altogether, I say that the urgency of the measure is due to the fact that we desire the power to deal with the enemies of the Commonwealth. If in anger I said in this connexion that actions speak louder than words, I ask honorable senators to let me withdraw that expression.
– Hear, hear! There is no ill feeling.
– I am aware of that, although it might be open to doubt when one hears such phrases as “ artful dodger “ and “ underhand attitude.”
– I say that the honorable senator’s argument was an unfair one.
– We may just as well assume that the opinions of our enemies will be given in the most plausible way, in order to delay a measure intended to assist the Commonwealth Government in dealing with them. I do not expect our enemies to frankly admit that they are our enemies. We might expect them to profess loyalty which will only be lip-loyalty.
– Make the penalty ten years’ imprisonment.
– One-half of the members of the Senate are clamouring for less drastic provision, whilst the other half are clamouring for more severe penalties. It may be assumed, in the circumstances, that the Bill has struck the happy medium. Whether the Committee decide to retain the clause as it stands, or to amend it, will make but little difference, because, after all, discretion in the matter will rest with the Judge.
– Why not drop the clause, if its rejection will make no difference ?
– The clause provides for additional penalties for a second offence in connexion with every offence under the Bill. If it were rejected, the Bill would have to be set aside until fresh clauses were provided to deal with that matter. I believe that a second offender should be liable to a more severe penalty than a first offender. I have appealed to honorable senators on the ground of the urgency of this measure. I am aware that the Committee will act upon its own responsibility, and will not be influenced by what occurred in another place; but I remind honorable senators that the measure, because of its urgency, occupied fewer minutes in passing in another place than we have already spent hours in discussing it. If this clause must go, because it is considered too drastic, the next clause must also be rejected, because it is still more drastic.
– No; the honorable senator should be fair.
– If honorable senators will contend that a clause under which a man who has been convicted three times may be regarded as a habitual criminal, and imprisoned for his natural life, is not more drastic than this, then I do not understand the King’s English. I ask for a division on this clause, and I remind honorable senators that if it is negatived, it will be necessary to redraft the Bill and introduce it again.
– Not at all.
– I am telling the Committee what will be the effect of rejecting the clause. It covers every penalty clause of the Bill, and if it is negatived, some provision must be included to take its place. If honorable senators consider the objection to the clause sufficient to warrant its rejection, they will be within their right in negativing it; but I ask them to think twice before they do so.
– I wish to answer the statement of the Minister suggesting that in referring to clause 84 and objecting to the application of clause 17 to the offence of taking unlawful soundings. I spoke as a friend of the enemy. In saying so the honorable senator said what was not true.
– I understood the honorable senator to refer to clause 80.
– If honorable senators will read clause 84 they will find that it makes no reference to the communication of information to the enemy. It refers merely to the measure of the depth of water and making notes upon an official chart.
– Let the honorable senator read paragraph c of clause 84.-
– I say that where soundings are changing, fishermen very often find it necessary, to guide them in their work, to mark oflicial charts of their own. To say that, because I directed attention to that as a comparatively trifling offence, I am an enemy of the Commonwealth, is to say something that is very far-fetched and which has no foundation in fact. The Minister has contended all through that without this clause a Judge would have no power to use discretion in increasing the penalty inflicted for a second offence. If the clause means anything, it means that the penalty imposed for a second offence must be the maximum penalty provided for in this clause. As to the argument with respect to the urgency of the measure, I may point out that it deals chiefly with offences that have existed ever since the Commonwealth has been in existence. I suppose that not less than 5 per cent. of the provisions of this Bill refer to offences that arise owing to the exigencies of the war.
– It is that 5 per cent, that is important.
– I am prepared to admit the urgency of dealing with such offences, and to give the Government all the power necessary to deal with them. To suggest that because honorable senators object to the application of clause 17 to other kinds of offences dealt with in the Bill they are, therefore, against the Government, is to treat the Bill as a party measure. I shall vote for the rejection of the clause entirely. To amend it as has been proposed would be to differentiate between a crime against the State and a crime against the Commonwealth. That would be worse than ever. A crime is a crime whether it be committed against the Commonwealth or a State. I cannot see why, if the second offence be an offence against the Commonwealth, the offender should be liable to double the maximum term of imprisonment attaching to the offence, when, if the second offence is against a State, such a provision would not apply. Let us pass a clause which will reflect credit upon our intelligence, and not one that will have to be amended almost as soon as it is passed.
– There might be something in the plea of urgency as applied to certain clauses of the Bill, but, taking the measure as a whole, it does not seem to me that that plea can hold good. The Government would have been well advised if they had introduced a special measure to deal with the matters which are considered of an urgent character. If we pass this Bill as it stands, it will be one of the most drastic measures dealing with offences against the law that I have ever come in contact with. Honorable senators should bear in mind that the whole trend of modern thought is opposed to long terms of imprisonment. The provisions which have been made for penalizing crime have not had the effect of curing one per cent. of our criminals. We seem to have gone upon wrong lines altogether. Instead of taking a new departure in a better direction, the Government propose, in this Bill, that we shall go further into the thicket in which we at present find” ourselves. I intend to vote against the clause. I consider it altogether too drastic. It provides for doubling the maximum term of imprisonment for any offence under the Bill in the case of an offender who previously served a term of imprisonment for one year or longer for an offence against a law of the Commonwealth or of a State or of a Territory. That seems altogether out of reason and out of harmony with modern thought on the subject of the punishment of crime. The circumstances in connexion with every case ought to be taken into account, but the Judge has no option. He must double the sentence. The Government would have been well advised to take the advice of those who have studied this aspect of our social system, and instead of going in the direction of greater severity, which, in the past, has produced no good effect, tried something in a more humane direction. A little more than 100 years ago men were hanged for petty thefts. I read of one case where a woman whose husband had been dragged away by the press gang went into a shop with a famished infant and stole a loaf worth 2d. She was brought before a Court, and hanged for that wretched, paltry offence. The same spirit is embodied in this Bill. What we want is reformation, not vengeance. The more lenient sentences which have been passed in recent times have not only not increased crime, as many of the bloodthirsty people who lived 100 years ago prophesied, but have gone a long way towards its abolition. Let us take a step further in this direction, and not be led away by the idea that the only way to deal with those who offend against the law is to exhaust our severity upon them. I shall vote against the clause.
Sitting suspended from 6.30 to 8p.m.
Progress reported.
page 341
Bill received from the House of Repre sentatives, and (on motion by Senator Pearce) read a first time.
Motion (by Senator Pearce) agreed to-
That so much of the Standing and Sessional Orders be suspended as would prevent the Bill being passed through all its stages without delay.
– In moving
That this Bill be now read a second time,
I have to thank the Senate for suspending the Standing Orders to enable me to do so. This is a very important and urgent measure, and the Government would not have taken this action if there were no immediate necessity for it. The Bill will remain in operation during the continuance of the present state of war, and no longer. It is designed entirely to meet conditions inseparable from the war, to provide for effective measures being adopted for the safety of Australia, and for taking due steps to see that no assistance of any kind can be rendered to the enemies of the Empire. When the late Government were raced with the war, they had to do many things for which they had no statutory authority. Many executive orders and minutes had to be made, and decisions come to, and they or their successors had to look to Parliament for statutory authority for what had been done. In clause 3, we ask Parliament to give retrospective power for the essentially necessary regulations and proclamations issued, and to give legal authority for the acts done. Perhaps one of the most debatable clauses, although, in fact, one of the least important, is clause 4. I am not inviting the Senate to engage in a long debate on it, because it is desirable that this Bill, and another, should go through to-night, but I draw attention to it so that honorable senators may see what they are passing. It provides -
The regulations may authorize the trial by courts martial and punishment of persons contravening any of the provisions of such regulations designed -
to secure the safety of any means of communication, or of any railways, clocks, harbors, or public works; or
Section 5 of the Army Act reads; -
Every person, subject to military law, who, on active service, commits any of the following offences, that is to say : -
There are several sub-sections there which it is not necessary to bring under this Bill. In so far as they are covered by the Defence Act - and many of them are - they will be dealt with in that way, but there are several other sub-sections which can easily be contravened by persons who are civilians and not soldiers, such as communicating with the enemy, making signals,’ or giving information that will be of service to the enemy. Such actions might render very valuable assistance to the enemy, and do considerable damage to ourselves, and for the purposes of this clause they are read as if they were offences against section 5 of the Army Act. As regards the court martial powers of the Commonwealth, the Bill is to be read as part of the Defence Act, section 99 of which sets out the powers of court martial as follows! -
I want to make a statement on behalf of the Government which has already been made by the Attorney-General in another place. In issuing a proclamation or any draft regulations under the general power given to Us in this clause, it is intended to fully set out that the Attorney-General shall have the right, not only to have these sentences for the purposes of record, but to review any sentence given under a court martial. The Government do not intend, under the clause, to give to the courts martial general powers, but in every case where they are given powers, limited as they are by the three sub-sections, we shall limit them in the regulations to specific actions, and will not grant a general power.
– Specific penalties?
– I would not go so far as to say that.
– Will the courts martial have power to inflict capital punishment?
– The courts martial which are referred to in section 69 are courts martial under the Defence Act.
– Only penal servitude.
– Under our law no court martial has power to award death. It will be seen that, while we ask for power to be given to courts martial, it is in a very limited class of cases, and the sentence is always to be subject to review by the Attorney-General, and that the power to be conferred on these courts martial will be given by regulations which will be made by the Government and subject to review, alteration, or revocation by them at any time.
– Are these regulations to be laid on the table of either House ?
– The regulations, of course, will have to be presented to each House. I want to stress this point: that with the exception of clause 4 all other offences committed under the measure will be tried as offences against the Defence Act, and, therefore, will come before the ordinary Courts of the Commonwealth. That, I think, will make it perfectly clear to the Senate what is proposed. In clauses 6 and 7 are set out the penalties for offences against the Act. It will be seen that the penalties for some classes of cases would not be sufficiently heavy, but I would remind the Senate that it is now engaged in considering the Crimes Bill, and that the Trading with the Enemy Bill is now law. The Attorney-General will have a choice as to which of the Acts he will proceed under, and, of course, he would take into account the enormity of the offence committed in deciding under which Act he would proceed, provided that it contained sections which fitted the offence. With this explanation, I can assure honorable senators that after consultation with the Attorney-General I have drawn their attention to all the salient points of the Bill. I ask honorable senators to give a speedy passage to the Bill, because I can say, on behalf of the Government, that it is required now. Action of an important character has had to be taken practically in advance of statutory authority. We are sufficiently seized of the fact that the time has arrived when we should have the drastic powers that are conferred upon us by this Bill. I ask honorable senators to remember that we shall be sending from the Commonwealth troops in transports, and that they are the easiest possible subject of attack. No matter how strong the convoy may be, the troops are subject to attack, and really the only safety we can guarantee for them is absolute secrecy as regards their movements. Unfortunately, I have to say that there is a curiosity on the part of the public; perhaps a very natural one - an anxiety on the part of friends; quite a natural one - and a desire on the part of a section of the public for business purposes, to use the commercial means of exploiting their anxiety and their curiosity, so that we need to possess very drastic powers. We should have to use these powers in a very drastic way in order to absolutely secure the safety of those citizens of Australia who are going across the seas to fight for the country. We want them, if they have to lay down their lives, to do so on the battle-field, and not to be swept out of existence on the ocean without the chance of firing a shot in return. The powers we seek in this measure, drastic as they are, are absolutely needed at the present time, and, therefore, I trust that the Bill will have a speedy passage.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [8.15].- In dealing with a measure of this kind, we all belong to one party. Whatever proposal may be brought forward by the Government, if it is commended to us as being necessary in the interests of the Commonwealth and for the safeguarding of the Empire, it will receive fair and just treatment at the hands of every individual senator. This Bill, I recognise, contains very many drastic provisions, but after the explanation given by the Minister of Defence I feel that there can be no difficulty in acceding to his request to give it a speedy passage. It is recognised generally that the war in which our nation is engaged is the greatest war, not. of the century, but, I suppose, of the world’s history, and that upon the result of the war will depend the prosperity of the contending nations. Nothing more deplorable could be imagined than that there should be reverses which would interfere with the future of the British Empire. I welcome this Bill. I realize that in the absence of parliamentary sanction the late Government had to take upon themselves the responsibility of doing all that was necessary to protect the interests of this great Commonwealth, relying, of course, upon the patriotism, the good sense, and the justice of the members in both Houses, no matter to which side they belong in politics, to indemnify them to the fullestextent for every action taken and done in connexion with the war. It may be that the present Government will be compelled at some time or other to take action which will not be entirely within the authority of the law. I believe that the members of both Houses will be prepared to support them in anything they may do in that regard. I commend the Bill most heartily to honorable senators.
. I agree that the Minister of Defence has Li no degree exaggerated the importance, the urgency, or the value of this measure. There is only one clause on which I desire to comment. It will be observed that clause 4 invests the Executive, as it were, with legislative powers. That is quite right. In a state of war, we have to meet emergent conditions; circumstances arise which call for action on the part of theGovernment - action of a very speedy and decisive character - and it would be absurd if they had to wait for Parliament to pass the necessary legislation through both Houses to enable them to act. I am inclined to think that the regulations to be made under clause 4 will not stand on the same plane as the regulations made under an ordinary Act. Where we in a measure give the Governor-General power to make regulations for carrying the Acb into effect- regulations rather in the nature of rules subsidiary to the Act - under the Rules Publication Act the regulations have to be tabled in Parliament within a specified period after their gazettal, and thus an opportunity is given to either House to annul the rules. I do not know that that law will apply to the regulations made under clause 4 of this Bill. This is a measure which directly says that, instead of the Parliament legislating, the Governor-General may make regulations.
– The provision in the Acts Interpretation Act or the Rules Publication Act applies to the regulations made under any Commonwealth Act, and it is the intention of the Government to lay the regulations made under clause 4 of this Bill on the table of either House of the Parliament.
– I understand that, but will it be competent for either House to annul the regulations?
– Certainly.
– I was not aware that the regulations made under this Bill would come within the category of the regulations referred to in a section of the Rules Publication Act. I have not looked at the latter provision, but my impression was that the regulations referred to in that Act were such as are really in the nature of rules, and supplemental to an Act; but clause 4 of this Bill endows “the Governor-General,” which means “ the Executive,” with power to legislate within the confines of paragraphs a, b, and c, irrespective of anything which is specially mentioned in the Bill.
– This Bill is incorporated with and is to be read as part of the Defence Act.
– The regulations are really Statutes, or Ordinances, distinct and separate, deriving their authority from the Act, and, to some extent, they are independent ‘ of the Act. They are not part and parcel of the Act. They are not rules under the Act. They are not subsidiary or supplemental to the Act, although they derive their validity, force, and effect from the legislation contained in clause 4. I am not particularly asking that Parliament should be allowed to intervene in these matters. I am not quite certain that it will be obligatory, but, at any rate, it is the intention of the Government to follow the spirit of the Rules Publication Act with regard to the regulations made under this measure.
– Yes.
– The Minister has pointed out the urgency of the measure, and it is not my intention to delay the Senate. With the Minister, I entirely agree as to the urgency of the measure, and I earnestly hope that here it will receive the speediest possible passage commensurate with its importance.
Question resolved in the affirmative.
Bill read a second time.
In Committee:
Clauses 1 to 3 agreed to.
Clause 4 (Regulations).
– In making regulations under clause 4, the Executive, I take it, will have the power to impose such duties as they may deem expedient for the defence of the Commonwealth upon the Naval and Military Forces.
– Or any other person.
– Yes. In exercising that power, will the Government go so far as to compel its Military Forces to serve outside the Commonwealth? This is a very important . point. It appears to me that, under clause 4, the Government would have the power to take this course if they .thought proper. At the same time, it would be opposed to the whole spirit of the Defence Act.
– I am in a position to answer that question immediately. I would direct the honorable senator’s attention to the fact that clause 1 of the Bill provides that this Act shall be incorporated and read with the Defence Act 1903-12. Now that Act specifically lays it down that our Military Forces cannot be compelled to serve outside Australia without their consent. Of course our Naval Forces can be sent anywhere. This clause, therefore, does not allow us to do anything in contravention of the Defence Act 1903-12.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [8.26].- The question which has been raised by Senator Mullan is one of very great importance. But we have to recognise that all the Forces we might mass in Australia would be utterly useless to affect the final result of the war which is now in progress.
– At the same time, this Bill will not give us any more power than we have under the Defence Act.
– Exactly. We have no power to send our Military Forces outside the confines of Australia. But I wish honorable senators to realize the absolute necessity which exists for sending men to the theatre of war, in order that they may effectively assist in the protection of the shores of the Commonwealth.
– We shall never experience any difficulty in getting men.
– At the present moment they can do more for the defence of Australia in Europe than they can accomplish here.
– I desire to ask the Minister of Defence whether there is any regulation in force dealing with defence matters which permits any Court in the Commonwealth to inflict capital punishment? I think that there should be. Under this Bill, the Courts have power to inflict only very nominal penalties for very grave offences.
– The Crimes Bill, with which we were dealing before the adjournment for dinner, authorizes the imposition of the death penalty in some cases.
– But is there any regulation in existence which permits of the death penalty being exacted for offences of a traitorous character, such, for example, as the disclosure of the departure overseas of our Expeditionary Force?
.- The Defence Act gives power to inflict the death penalty when troops are on active service, but that is subject to review by the Crown.
– But this Bill only goes as far as section 5 of the Army Act.
– Exactly. It merely gives us power to inflict penalties up to those laid down in clause 6. The Attorney-General has stated, on behalf of the Government, that if more serious offences are committed he will have the alternative of taking action under the Crimes Act. If action involving the death penalty be taken, it will be taken under the Crimes Act.
Clause agreed to.
Clause 5 -
The Governor-General may, by order published in the Gazette, make provision for any matters which appear necessary or expedient, with a view to the public safety and the defence of the Commonwealth, and in particular - (/) for applying to naturalized persons, with or without modifications, all or any provisions of any order relating to aliens;
for preventing money or goods being sent out of Australia, except under conditions approved by the Minister.
– I do not think anybody can find fault with this clause, except with paragraph /, which applies to naturalized aliens.
– It is a very necessary provision.
– Persons may get naturalized under false pretences.
– All that is quite true. But we ought to assume that persons who have become British subjects are not going to do anything which will injure the Commonwealth, and, unless there is very strong ground for suspicion, these persons ought to be treated exactly as the rest of the community are treated.
– I can give the honorable senator good reasons for the provision in question, if he will permit me to do so.
– Very well.
– I am rather glad that the honorable senator has raised this question, because it affords me an opportunity of clearing away a misconception which exists in the minds of many people regarding naturalized British subjects. We must recollect that, whilst we have power to make a law specifying the conditions under which we will confer the privilege of naturalization upon an alien, the country to which that alien belongs does not necessarily recognise our right to denationalize its subjects. That remark applies particularly to Germany
– And Austria.
– Exactly ; and to Austria. We may make what naturalization laws we like, but Austria and Germany say that, in spite of all our naturalization laws, their subjects still remain Austrian and German subjects. If German troops were to land in Australia, and a naturalized German came within their ambit and refused to obey their orders, the penalty would be death. The German law would not recognise him as a British subject.
– As a matter of fact, Germany does not recognise any naturalization unless it is obtained with the consent of the German authorities.
– That is so. Whilst up to the outbreak of the war we conferred upon Austrian and German subjects the privilege of naturalization, in the eyes of the Austrian and German law those people are still Austrian and German subjects. Therefore, it may be necessary for us to take precautions to prevent these people leaving the Commonwealth; to see that they are placed under surveillance; and that they are not permitted to move freely from place to place.
– I desire to ask the Minister whether paragraph h of this clause will empower the Government to control the export of wheat which, though it may be passing to a neutral power, may yet become a portion of the food supply of the enemy. Will the Commonwealth have a control over it, superior to that of the States themselves? Quite recently, two vessels in South Australia were loaded with wheat. I do not know what is their destination. But I would point out that to allow that wheat to leave our shores at the present time may be an injury to Australia. Will the paragraph in question enable the Government to restrict the export of wheat?
– There is no doubt that the provision to which my attention has been drawn will give the Government that power, and, in anticipation of it, I may mention that proclamations have already been issued prohibiting the export of wool, coal, sugar, &c, except under conditions laid down by the Minister. The prohibition imposed upon the export of sugar has already meant a great deal to the citizens of Australia. It is anticipated that this year the sugar crop will be 30,000 tons below the requirements of the Commonwealth, and, had it not been for the prohibition in question there is not the slightest doubt that the price of this commodity here would have risen to the price it commands in the outside world. In other words, we should have been obliged to pay about £7 per ton more for our sugar than we are paying. This power has already been exercised in the direction indicated by the honorable senator, and will continue to be so exercised.
– I have been informed that the Minister of Trade and Customs had no power to prevent the two vessels to which I have alluded from leaving the State of South Australia.
– Not without the issue of a proclamation.
– It is for that reason I desired to know whether paragraph h of this clause conferred the necessary power on the Government. If it did not, I would have been prepared to vote for the granting of such a power, with a view to preventing food supplies from reaching the enemy.
Clause agreed to.
Clause 6 -
Any person who contravenes, or fails to comply with any provision of any regulation or order made in pursuance of this Act, shall bo guilty of an offence under this Act.
Penalty : One hundred pounds, or six months’ imprisonment, or both.
– Is the Minister of Defence satisfied with this penalty? It seems ridiculous, when it is contrasted with some of the offences which are enumerated in the Bill.
– We think it is quite sufficient. It applies only to offences under this Bill, and those offences are not so important as are the offences which are dealt with by the Crimes Bill.
– There is the offence of communicating with the enemy. If a person does that, he is a traitor, and should be subject to a very drastic penalty.
Clause agreed to.
Clauses 7 to 11 agreed to.
Title agreed to.
Bill reported without amendment; report adopted.
Bill read a third time.
page 347
In Committee (Consideration resumed from this day, vide page 341) :
Clause 17 -
Where a person convicted of an indictable offence against the law of the Commonwealth has been previously convicted of any offence against the law of the Commonwealth, or of a State or of a Territory, and sentenced to a term of imprisonment with hard labour for one year or longer, the maximum term of imprisonment in respect to the offence of which he is convicted, shall be doubled, as provided by the section creating the offence….. “Upon which Senator Grant had moved by way of amendment: -
That the words “ or of a State “ be left out.
Question - That the words proposed to be left out be left out- put. The Committee divided.
AYES: 13
NOES: 16
Majority … … 3
AYES
NOES
Question so -resolved in the negative.
Amendment negatived.
– I accepted the amendment which has just been rejected at the request of opponents of the clause. I have no complaint to make, but I rise to say that during the dinner-hour I had an opportunity of discussing the clause, and I now earnestly appeal to the Committee to pass it as it stands, and if they are not disposed to do so, to, at any rate, permit us to get the Bill through quickly.
– Knock the clause out at once.
– Honorable senators will do that if they follow Senator Gould’s lead. Personally, it will make no difference to me. Honorable senators have expressed great interest in the clause, and have displayed considerable ability in arguing in such a way that the two extremes can meet. I shall say no more now than that the Government want the Bill passed, and desire that this clause should be retained. I ask for no favour in the matter, but have explained the attitude which the Government adopt.
– I can quite understand that the VicePresident of the Executive Council desires that the Bill should be passed forthwith, because there is considerable urgency as regards certain parts of the measure. But the Minister cannot contend that there is any urgency regarding this clause 17, which is the bone of contention and not the Bill as a whole. Honorable senators are prepared to assist the Government in getting the Bill through promptly, but many of them desire that it should pass without this clause. It cannot be said that this provision is urgent, since it would apply only to persons brought before the Court on a second offence. If the Bill is permitted to pass withoutthis clause the Government will have ample opportunity later to introduce an amending measure providing the power asked for here should it in practice be found necessary in connexion with this legislation. The Vice-President of the Executive Council stated that if this clause were not passed the Bill would need to be entirely recast. That is not so. It has been pointed out that there are only two or three clauses in connexion with which a term of imprisonment not exceeding twelve months is provided as the maximum penalty for certain offences, and it has been shown that it is competent for the Committee, should honorable senators so desire, to increase the maximum term of imprisonment for such offences. The Ministry should be satisfied with getting the Bill through without this clause, in view of the fact that, should it afterwards be found necessary to enact such a provision, ample opportunity will be afforded to do so.
Question - That the clause stand as printed - put. The Committee divided.
AYES: 13
NOES: 16
Majority … … 3
AYES
NOES
Question so resolved in the negative.
Clause negatived.
Clause 18 (Indeterminate sentences).
.- The Government have promised another place to consent to an adjournment of probably a week, and possibly a fortnight. Unless this Bill goes through to-night, we shall not be able to get it upon the statutebook until the other House meets again, owing to the fact that an amendment has been made. I am not complaining of this, but the amendment will have to be considered by another place. In the circumstances, the Government ask the Senate to pass this Bill through all its stages to-night.
Clause agreed to.
Clauses 19 to 21 agreed to.
Clause 22 -
A prosecution in respect of an offence against this or any other Act, or any regulation under any Act, may be commenced as follows : -
Where the maximum term of imprisonment in respect of the offence in the case of a first conviction does not exceed six months - at any time within one year after the commission of the offence : and
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [8.58].- I call attention to paragraph 6. It would be reasonable to make the period six months instead of twelve. That is the English and the State practice with regard to all minor offences which may come before a Court of summary jurisdiction. The paragraph does not apply to any serious or major offences.
– The period is not too great seeing that the law will be in operation over the whole of the Commonwealth. If the time for instituting the prosecution is reduced there may not be sufficient opportunity for the report of an offence to reach the proper authorities. It will not be any great hardship if a man has to wait six months before he feels free from the penalties of the law. It may do more harm than good to reduce the period, because if instructions to proceed with a prosecution have to be sought and obtained by wire, prosecutions may be instituted in cases where, if more detailed particulars and instructions came by mail, none would be ordered at all. The area of the Commonwealth is large, and it takes a long while for communications to come from the more distant parts. Twelve months might be too long in the case of a State. Sufficient time must be allowed to make full inquiries, and, if necessary, to get the AttorneyGeneral’s opinion after the committal of an offence.
– The Minister has just enunciated the strange doctrine that there is no principle involved in this matter, but there is a most serious principle involved. The whole forces of the Commonwealth will be set to work to establish a case against an unfortunate individual, and the longer the time between the commission of the alleged offence and the trial the less likely it is that he will be in a proper position to defend himself. The Government should have no advantage over the accused. If any party is to have an advantage it ought to be the accused, because he has no one to help him, and his witnesses may disappear, as the population of Australia is in a continual state of flux. I have known cases where individuals were put to serious inconvenience, and their liberties actually endangered, by the trial of a case against them being unduly delayed. There ought not to be the delay of a single moment more than is necessary. If I had my way, I would make the time one month, but, at the most, it ought to be six months. I would suggest to Senator Gould that he should move to make it three months, which is quite long enough.
-Colonel Sir Albert Gould. - This refers to paltry offences. A goat might trespass on Commonwealth land at Port Darwin, and the authorities there might want to send down to the Government to know whether they should prosecute or not.
– They could do it by telegraph. We ought to carry out the idea which originated hundreds of years ago, that the course of justice shall not be delayed.
– In the States and in Great Britain the period is usually six months in cases dealt with by a Court of summary jurisdiction. Curiously enough, the only exception is where a member of the community takes proceedings against an officer of the State, or against a constable, or against a sheriff, or servant of the sheriff, for wrongful seizure or excessive distress. In those instances the time allowed is only one month, and there has always been a feeling that the Government have taken an unfair advantage of the private individual. Undoubtedly, as Senator Gardiner said, the Commonwealth has a large area, but it has its posts and telegraphs, and it will not always be necessary to consult the central authority at the Seat of Government as to whether prosecutions shall be instituted in cases covered by paragraphs b and c. A man living in a remote part of the Commonwealth may have done certain things which are regarded as an offence against Commonwealth law, and may not contemplate the possibility of being prosecuted. Yet eight or nine months afterwards he may be prosecuted when he has forgotten all about it, and possibly in ninety-nine cases out of a hundred has not the necessary means or evidence to provide his defence. There should be a reasonable limit in the case of prosecutions of individuals. The witnesses who could prove a man’s innocence may be dead, or have left the country. The defendant will know nothing, whereas the prosecutor - the Government - will be working all the time, and suddenly launch a process against him. The utmost limit to which we should go is six months. Surely the Commonwealth does not require longer to get’ a case ready, with all the skilled assistance at its command, and all its means of obtaining information.
– This is from the occurrence of the offence.
– Exactly.
– If a man can cover up his tracks long enough, he can go free?
– Not necessarily. According to this provision, if a man can cover up his tracks for thirteen months he can go free.
– Not for serious offences. For them there is no limitation.
– That is so; and I think it is very wrong. Certainly, with regard to the offences covered by paragraphs b and c there ought to be a limitation of six months at the outside. With regard to paragraph a, it may be parallel with the cases which at present apply in the jurisprudence of the States of the Commonwealth and other parts of the Empire, in which for certain offences there is no time limitation to a prosecution. For example, in the case of major offences, such as burglary, murder, and bigamy, there is no limitation, and” the offenders may be prosecuted at any time. With regard to offences which will be dealt with by Courts of summary jurisdiction, and which will be comparatively minor offences, surely a limitation of six months is enough 1 It will press very hardly upon an individual if he is called upon after the expiry of that time to meet a prosecution, because very possibly all his means of defence and his witnesses may then be out of reach. I think that we can very fairly take the established procedure of the States of the Commonwealth and of Great Britain in this regard.
– I would point out to Senator Keating that there may arise a case under the Land Tax Act. An offence may be committed, say, to-day, but not a word may be known of the offence until six months later. The alteration suggested from the other side would be almost an inducement to a man who wanted to do so to try to evade certain payments or to commit a fraud. A fraud may be committed under the Maternity Allowance Act, and a period of six months may pass before anything is known about it. To make the period a little longer can injure no one but the guilty.
– No one but the suspects.
– The suspects are not very likely to be discovered after a period of six months. It will be early after the commission of an offence that they will be discovered, if they are discovered at all. Let meput a case which may occur if the provision is altered. Some person may be suspected, and the evidence may look black against him. The time for trial arrives, and the evidence is brought out that somebody else is guilty; but as a period of six months has elapsed, the guilty person cannot be brought up for trial.
– The Government could institute proceedings within six months.
– After the comission of the offence?
– Yes.
– In a vast territory like that of the Commonwealth, with sparsely populated districts, which will be dealt with through central offices, a longer limitation than a period of six months is necessary. Take a case of the forgery of a Commonwealth document.
– That would not be dealt with under paragraphs 6 and c.
– No, under paragraph a.
– That may be classified as one of the more serious offences, but there may be other cases of a similar character.
– These paragraphs deal with minor offences.
– I see nothing to be gained by taking six months off the period. It is not likely that any one will be worried very much under the provision. My honorable friend is really endeavouring to legislate for an exceptional case.
– I want to bring before the Committee a case which has arisen under the Defence Act. When the Defence Bill was going through the Senate, it contained a clause allowing the Department a period of twelve months in which to take action, but the Committee, in its wisdom, reduced the period to six months. When the annual audit took place, deficiencies in chaff were discovered in Queensland. A search was made, and finally the responsibility was found to rest upon a certain officer. But when we came to take proceedings against him we found that more than six months had passed - as a matter of fact, nine mouths had elapsed - and the consequence was that he was allowed to go scot free.
– -What was the offence, and what was the punishment?
– The offence was taking chaff the property of the Commonwealth, selling it, and pocketing the proceeds.
– You could prosecute him now.
– It was found that we could not prosecute the offender because the Defence Act contained a specific condition dealing with the misappropriation of property of the Department.
– That was a serious offence, but we are dealing now with minor offences.
– Again, take cases arising under the Maternity Allowance Act. Cases of misappropriation have occurred, and wrongful claims have been made. In some cases the discovery of the offence was made at a time when it was too late to lodge a prosecution. I only mention these cases to show that a longer period than six months has elapsed before offences have been discovered. If the Committee, with that knowledge in their possession, like to shorten the term in this clause, they are welcome to do so. There have been found cases of fraud, but we have not been able to take action because the period for lodging a prosecution had passed.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [9.20].- The very cases which the Minister of Defence has cited are cases which would not be affected by the proposed alteration of this clause. Both the cases involved fraud, and, therefore, are not applicable to the contention raised from this side. If we had proposed to make an alteration of paragraph a, the Minister’s objection would hold good, but it certainly would not hold good in regard to paragraphs b and c.
– Why have a limitation of six months if it is bad to have any period of limitation ?
– A limitation of six months gives a reasonable time in which to lodge a prosecution. It follows the practice of Great Britain and of every State in the Commonwealth. In the case of an indictable offence, no limitation is proposed or sought to be proposed. To bring this discussion to a head, I move -
That the words “ one year,” line 13, be left out, with a view to insert in lieu thereof the words “ six months.”
Question - That the words proposed to be left out be left out - put. The Committee divided.
AYES: 8
NOES: 21
Majority … … 13
AYES
NOES
Question so resolved in the negative.
Amendment negatived.
Clause agreed to.
Clauses 23 to 28 agreed to.
Clause 29-
Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance by any other person of any political right or duty, shall be guilty of an offence.
Penalty : Imprisonment for three years.
– It seems peculiar that a clause of this character should find a place in the Bill. I should like to know the reason for its insertion.
– It is only fair that the Vice-President of the Executive Council should explain to us exactly the meaning of this clause. It is one which might very properly find a place in an Electoral Bill. The Minister should tell us whom he wishes to hit.
– There is no desire to hit anybody. The Bill provides for all offences which may be committed against the Commonwealth. A most serious offence may be committed if we permit intimidation and violence with a view to the prevention of the free exercise of political rights. I was inclined to treat Senator Barker’s objection to it as a joke.
– Why the penalty of three years’ imprisonment?
– That is the maximum penalty, and I would point out that it may be necessary to deal with a most serious offence.
– I would point out that the penalty provided for an offence under this clause is imprisonment for three years. The provision says nothing about it being the maximum penalty. I have no objection to the clause appearing in the Bill, but I want it to be made clear that it is not the intention of the Government that a penalty of three years’ imprisonment shall be imposed for every breach of this provision.
– The position is explained in the Acts Interpretation Act. Wherever the penalty appears, it is the maximum penalty.
– Then I am perfectly satisfied.
– Does the Vice-President of the Executive Council regard interruption at a political meeting as coming within the scope of this clause?
– That offence is already dealt with in the Electoral Act.
– But will this clause render a person who interrupts at a political meeting liable to imprisonment for three years?
– No.
– I am asking the Vice-President of the Executive Council. If it will have that effect, it is a very serious matter.
– I would point out to the honorable senator that, where offences are provided for in the Electoral Act, proceedings in connexion with such offences will be taken under that Act. But suppose that some persons prevented honorable senators from coming here to attend to their political duties. The Electoral Act contains no provision for any such offence, though it might be a most serious and brutal offence. The Bill deals with quite a number of crimes which otherwise have not been provided for. I hope that honorable senators will agree to the clause.
– I waited for the Vice-President of the Executive Council to explain the meaning of the clause, which he has not done. It seems to me that the Bill is regarded as a sewer, into which all objectionable matters may run. We are now dealing with political offences, and we are treating them as if they were of no account. Yet there is a penalty of three years’ imprisonment attaching to them.
– Look at clause 11.
– The Vice-President of the Executive Council should tell us to what particular offence this penalty is intended to apply. There is a beautiful indefiniteness about it. The offence may consist of a threat or a hindrance to the exercise of a political right. But the Bill contains no definition of “ political right.” The clause, I imagine, will prove a harvest to the legal profession. It is full of barbed-wire entanglements, which are intended to catch all and sundry. The Government may feel secure in the conviction that under it no prosecutions will bo launched which will be harmful to the rival political party. But by-and-by the position may be reversed. This is not intended to be a law for the year of grace 1914 only. Either the term “ political right “ should be defined, or the VicePresident of the Executive Council should tell us clearly what is the meaning of the clause.
.- The Vice-President of the Executive Council has pointed out that offences against the Electoral Act will be dealt with under that Act. But clause 11 provides -
– Exactly.
– That is just the opposite of what the honorable senator himself said a while ago.
– Where the offences are described in the Electoral Act, surely that is the Act under which prosecutions ‘ will be initiated,
– But it will be competent to try offenders under either Act, and we may be sure that they will be tried under the Act which will be most effective. Thus, if I commit an offence under the Electoral Act, I shall render myself liable to the extraordinary penalty of three years’ imprisonment. I do not say that systematic interruption should be tolerated at public meetings, but it is very difficult to define interruption. If I hooted the Vice-President of the Executive Council, his friends might regard my action as interruption. But the right to express approval also implies the right to express disapproval. If we assent to this clause in its present form, we shall be simply making a whip with which to scourge ourselves later on. The matter is too serious to be allowed to pass on the plea of urgency. Even if the clause were dropped out of the Bill, it would never be missed.
– I cannot understand the opposition to this clause. Many times we have heard of men being blacklisted and boycotted, so that they were unable to gain a livelihood because they had the temerity to express their political opinions. Surely the time has arrived when we should deal with people who inflict such hardship on the citizens of Australia. Three years’ imprisonment is a light enough penalty to impose upon men who victimize others because they have the courage to express their political convictions. We must remember that this is the maximum penalty which can be inflicted. In dealing with minor offences, the Court will exercise common sense. I cannot magine that any Judge or justice of the peace will, for a minor offence, inflict the maximum penalty.
– It may be like a boomerang.
– It might come back like a boomerang, but I have sufficient faith in the Government to believe that they have given serious consideration to the Bill. There is, in my opinion, ample justification for the inclusion of a provision of this kind. It is frivolous for honorable senators to raise the bogy that, under this clause, a man might be sentenced to three years’ imprisonment for a trivial offence. This clause will enable citizens in different parts of Australia to secure greater freedom in regard to their political rights than they have enjoyed in times gone by.
– I can hardly say how I stand in respect of this clause, because I frankly confess that I do not understand it The Government have vouchsafed no information as to the kind of offences to be created under it. In my opinion, the Courts will have a very difficult task in determining what is meant by “a political right.”
– We know what violence and threats are.
– It is not enough to know that. We should, under this clause, know what is a political right.
– Will the clause apply to interference with industrial rights ?
– It might include the right of a person to anonymously comment on proceedings at an election. The marginal note indicates that the clause is taken from the Queensland Criminal Code ; but there is a deviation from the provision in the Queensland Criminal Code, and the period of imprisonment is increased by twelve months. Section 78 of the Queensland Criminal Code reads -
Any person who, by violence or by threats, or intimidation of any kind, hinders or interferes with the free exercise of any political right by another person, is guilty of a misdemeanour, and is liable to imprisonment, with hard Labour, for two years.
What is made an offence under this Bill is made a misdemeanour under the Queensland Criminal Code. But the Queensland section does not stop there. There is a further paragraph, which reads -
If the offender is a public officer, and commits the offence in abuse of his authority as such officer, he is liable to imprisonment, with hard labour, for three years.
There is no such provision included in this BUI. Under the Queensland Code a public official guilty of this offence is regarded as more blameworthy than a private person, and a more severe penalty is provided in his case.
– The three years’ imprisonment under the clause would apply in such a case.
– The three years’ term of imprisonment would apply in both cases under this clause. The clause is very vague, and should be expressed less vaguely, in order that the Courts and the community generally may be able to determine where an offence under it has been committed. Different persons may regard various things as interference with their political rights.
– There must be violence or threats or intimidation.
– Of course, in many cases the offence would be obvious ; but in many more it would be very doubtful. And I venture to say that a clause like this would lead to a great variety of interpretations in different States and by different Courts.
– Would picketing come under this clause?
– Some Courts might consider it an offence, and others might not.
– How has the provision worked in Queensland?
– I should like to know, and perhaps some, honorable senator from Queensland may be able to tell us. It is possible that proceedings might be taken in a spirit of vindictiveness, asserting that an offence had been committed, when, in reality, there was no offence at all. On the other hand, persons guilty of interference with the performance of a political right by other persons might escape punishment, because people would hesitate to take proceedings under so vague a section.
– We have heard a lot to-night about the penalties provided in this Bill being the maximum penalty in each case, and we have also been told that the maximum penalty would seldom be. imposed. Under the Electoral Act a maximum penalty of £50 is provided for a certain offence, and when recently in New South Wales the law was broken in that respect, the offender was fined £50 straight away. He could be given three years’ imprisonment under this Bill, if the offence were repeated. These offences can be dealt with under the Electoral Act, and, in my opinion, this clause is unnecessary.
– If the clause is to be passed, it should deal with interference with industrial, as well as with political, rights. As Ministers desire that the Bill shall be passed to-night, I shall, without debating the matter, move -
That after the word “ political “ the words “ or industrial “ be inserted.
– I ask the Committee to reject the amendment; the Government cannot accept it.
– Senator Bakhap’s amendment, if agreed to, would reduce the provision to an absurdity. We have been asked to pass the Bill with as little delay as possible, because of urgency, arising from the fact that Australia is in a state of war. Senator Bakhap’s amendment has nothing to do with the fact that Australia is in a state of war.
– What has interference with political rights to do with it ?
– Personally, I do not believe that the clause is necessary. Offences which may be held to be an interference with political rights can be better dealt with under our electoral law. If it is defective in this respect at present, it should be amended. I am inclined to vote against the clause.
Senator Lt.-Colonel Sir ALBERT GOULD (New South Wales) [9.50].- The Vice-President of the Executive Council should have given the Committee some reason why he objects to the amendment. Of course, I can quite understand honorable senators on the other side regarding such an amendment as absurd.
– Can Senator Gould give any reason why the amendment should not be objected to ?
– My honorable friends opposite may regard as ridiculous a provision intended to punish a man for endeavouring to prevent another enjoying his right to work. It is, of course, important that men should be fully protected in the exercise of their political rights and privileges; but these rights are no more sacred or important to the individual than is the right of a man to do his work without let or hindrance by any section of the community that may see fit to abrogate to itself the right to say how, or when, or upon what conditions he shall work.
– Good old freedom of contract !
– If honoroble senators believe it to be necessary to protect a man in his right to vote, they should be prepared to protect him in his right to work.
– Should that apply to the Employers Federation ?
– It should apply to every one.
– Would the honorable senator concede to all workers the right to work?
.- Yes.
– The honorable senator has, so far, never done so.
– I concede to all workers the right to work, and I would prohibit any one from hindering a man from taking employment that was offered to him.
– Not Germans, surely ?
– I am speaking now of the industrial rights of British subjects.
– We shall be considering an amendment of the Conciliation and Arbitration Act by-and-by, and the honorable senator can deal with the matter then.
– I shall say no more now, if the Minister will promise to support the insertion of such a provision in the Conciliation and Arbitration Bill. I am aware that honorable senators opposite have the numbers, and will not allow any one to insert a provision in this Bill protecting men in the full enjoyment of their right to work; but I trust that the Committee will not regard this as a matter which can be lightly set aside. Before many years have passed, honorable senators opposite may discover that this is a question with which they will have to deal very carefully.
Amendment negatived.
Question - That the clause stand as printed - put. The Committee divided.
AYES: 18
NOES: 9
Majority … … 9
AYES
NOES
Question so resolved in the affirmative.
Clause agreed to
Clause 30 agreed to.
Clause 31 -
Any person who, without lawful authority, takes any goods or property out of the possession, custody, or control of the Commonwealth or out of the possession, custody, or control of any officer of the Commonwealth who has the possession, custody, or control thereof by virtue of his office, shall be guilty of an offence.
Penalty: Imprisonment for one year.
– Which is the greater crime, destroying or damaging Commonwealth property under clause 30, or seizing goods in Commonwealth custody under clause 31? In the first case the offender is liable to two years’ imprisonment, and in the second to one year’s imprisonment.
– The first may be the case of a boy destroying an insulator by throwing a stone, and the second Mr. Carruthers’ case.
– I do not know whether the officials had in their minds the case of the Premier of New South Wales, who defied the Government and seized a lot of goods from the custody of the Commonwealth. Certainly the offences under this clause are just as bad as those under clause 30. Is the Minister satisfied that the punishment should be less ?
– There is a difference, but I do not think it is worth disagreeing about. Whether the maximum penalty is two years or one year, the difference is not very great. I do not know whether we should try to make all these penalties exact. One man may regard one offence in one light and another offence as infinitely more serious. As there seems to be an inclination on the part of the Committee to lessen penalties I am quite prepared to retain the smaller penalty in this case.
– A boy breaking an insulator is liable, under clause 30, to imprisonment for two years. The offence under this clause is much more serious, and as we have taken away the power to double the penalty for a second offence the penalty under this clause should be made at least equal to the penalty for interfering with the exercise or performance of a political duty. In the circumstances, I move -
That “one year” be left out, with a view to insert in lieu thereof “ three years.”
Surely this offence is equal to the offence of interfering with a political right? If a magistrate who refuses to sign a voting paper, and thus prevents a person exercising his political right, is to be liable to three years’ imprisonment, surely a person who seizes goods in Commonwealth custody should have at least equal punishment? The New South Wales wirenetting case is an illustration.
Senator Lt.-Colonel O’LOGHLIN (South Australia) [10.0].- There is a difference in the two clauses, and the offence of breaking or damaging Government property is more heinous than simply removing it. If any one removed Senator Senior, or put him to one side, the offence would not be very great ; but if he broke his head it would be a serious matter.
Amendment negatived.
Clause agreed to.
Clauses 32 to 72 agreed to.
Clause 73 -
Any person who, being a Commonwealth officer, fraudulently and in breach of his duty -
makes any false entry in any bookor record; or
omits to make any entry in any book or record; or
by act or omission falsifies any book or record; or
destroys or damages any book or record; or
furnishes any false return of any property; or (/) omits to furnish any return of any property, shall be guilty of an indictable offence. Penalty : Imprisonment for seven years.
– The maximum penalty provided for the offences enumerated in paragraphs a to f seems to me to be a very heavy one. Under clause 71, a person who is found guilty of disclosing official secrets - in my opinion, a very serious offence against the Commonwealth - will be liable to the maximum penalty of two years’ imprisonment; while, under clause 72, for stealing, a public officer will be liable to a penalty of seven years’ imprisonment. With regard to clause 73, a person may omit to do certain things, but it may he a very minor offence.
– Then it will only carry a small penalty.
– It does not follow, of course, that a person convicted of an offence under any one of these paragraphs will get a sentence of seven years, but the Judge will have power to inflict that punishment.
– But the prosecution would have to prove guilt, though.
– There does not seem to be any balance in these penalties.
SenatorFINDLEY. - I am not going to make any comment on provisions to which we have agreed, other than to draw attention to what I call seemingly glaring disparities respecting the terms of imprisonment which, to me, seem almost alike. There is very little difference between the offences provided for in clauses 71 and 72 and those provided for in clause 73.
– Some of the other maximums are too low.
– For the offences covered by this clause the maximum is too heavy, or the others are too low.
– Are you going to submit an amendment to cut down the period?
– I would like the Minister to give some reason why this extreme penalty is provided for.
– The provision has been taken out of the Queensland Criminal Code wholesale, and put in here.
– It does not follow that it is a good provision to be in this measure. The Queensland Criminal Code was passed at a time when there was no Labour Government in power, and it is not always good to follow the examples of Governments who sat in opposition to Labour. I ask the Minister if he can give the Committee any substantial reasons why the extreme penalty of seven years should be imposed for the offences enumerated in this clause.
.- The penalty for the offences covered by this clause may seem extreme, but the fraudulent commission of any one of the offences may involve the loss of enormous sums to the people of the Commonwealth. It is necessary to have a penalty commensurate with the enormity of the offence. An officer may cover up a crime by even failing to register, or he may commit a series of crimes by failing to make a note. As regards the disparity between the offences covered by this clause and the smaller offences, the period of punishment will always be left to the discretion of the Judge. I believe it is possible to draft a Bill to provide for every offence which might be committed against the Commonwealth, and to prescribe the penalty for each offence. But it would be a Bill of enormous proportions, and would entail a lot of work on the Committee. Under this clause, if the offences committed are not of a serious kind, I take it that heavy penalties will not be imposed. Surely, if an offence is found to constitute a fraud on the Commonwealth so great that the maximum penalty is called for, there will be ample grounds for awarding it. I do not think honorable senators need trouble themselves about the penalty.
– Under clause 75, which deals with false returns or certificates by officers in high positions, the punishment for the offence is imprisonment for two years. The offence covered by that clause is a much more serious offence than the one with which the Committee is dealing. Here, if a mere youth fails to do certain bookkeeping work, he will be liable to imprisonment for seven years. In the other case, an officer in a responsible position who fails to do his duty will be liable to be imprisoned for only two years. I think that the Minister would be well advised to reverse the penalties, and so make the punishment commensurate with the offence in each case.
– I wish to point out to Senator Senior that clause 75 deals with an offence which may be committed accidentally, whereas clause 73 provides for an offence which is committed fraudulently, and that, of course, makes all the difference.
Clause agreed to.
Clause 74 agreed to.
Clause 75 -
Any person who, being a Commonwealth officer, and employed in a capacity in which he is required or enabled to furnish returns or statements touching -
any remuneration payable or claimed to bo payable to himself or to any other person, or
any other matter required by law to be certified for the purpose of any payment of money or delivery of goods to be made to any person, makes a return or statement touching any such matter which is, to his knowledge, false in any material particular, shall be guilty of an offence.
Penalty : Imprisonment for two years.
Amendment (by Senator Senior) proposed -
That the word “two,” line 16, be left out, with a view to insert in lieu thereof the word “ seven.”
– I am anxious to expedite the passage of this measure, but I think that Senator Senior is on the right track. To be consistent, if an offence under clause 73 is to carry a penalty of seven years, an offender under clause 75 should also be liable to imprisonment for that period. I am prepared to trust a Judge, who listens to the evidence, on every occasion. He is the man who will have to decide whether a person who has been found fraudulently guilty of an offence should be sentenced to imprisonment for seven years or for seven months. I support the attempt of Senator Senior to make this clause consistent with clause 73.
Amendment negatived.
Clause agreed to.
Clause 76-
Any person who-
personates any Commonwealth officer on an occasion when the latter is required to do any act or attend in any place by virtue of his office or employment; or
falsely represents himself to be a Commonwealth officer, and assumes to do any act or attend in any place for the purpose of doing any act by virtue of his pretended office or employment, shall be guilty of an offence.
Penalty : Imprisonment for two years.
– I shall try once more to make the punishment fit the offence.
– Under this clause, a person may personate the GovernorGeneral, and get two years’ imprisonment.
– Yes ; but for making a false entry in a book or doing damage to a book a sentence of seven years may be inflicted on the offender. I move -
That the word “two,” line 14, be left out, with a view to insert the word “ seven “ in lieu thereof.
Amendment negatived.
Clause agreed to.
Clauses 77 to 79 agreed to.
Clause 80-
If any person having in his possession or control any sketch, plan, model, article, note, document, or information which relates to or is used in a prohibited place……
communicates the sketch, plan, model, article, note, document, or information to any person other than a person to whom he is authorized to communicate it, or a person to whom it is, in the interest of the Commonwealth or of some part of the King’s Dominions, his duty to communicate it; or
retains the sketch, plan, model, article, note, or document in his possession or control when he has no right to retain it, or when it is contrary to his duty to retain it, he shall be guilty of an offence.
Penalty : Imprisonment for two years.
If any person receives any sketch, plan, model, article, note, document, or information, knowing, or having reasonable ground to believe, at the time when he receives it, that the sketch, plan, model, article, note, document, or information is communicated to him in contravention of this Part of this Act, he shall be guilty of an offence unless he proves that the communication to him of the sketch, plan, model, article, note, document, or information was contrary to his desire.
Penalty : Imprisonment for two years.
– Surely the Government are not going to allow this clause to pass in its present form. Are we going to declare that any person who communicates any sketch or plan to the enemy shall be imprisoned for a term of only two years, whilst a person who makes a fraudulent entry in a book shall be liable to imprisonment for seven years ?
– What does the honorable senator propose ?
– That the term of imprisonment be ten years.
– I would suggest that the honorable senator should make it five years.
– A spy is liable to imprisonment for seven years.
– He is a lucky man if he is not shot.
– Yes. At the same time, he may not have communicated any information at all.
– Why not make the term seven years?
– Very well. I move -
That in the penalties the word “ two,” twice occurring, be left out, with a view to insert the word “ seven “ in lieu thereof .
Amendments agreed to.
Clause, as amended, agreed to.
Clause 81 agreed to.
Clause 82 -
Any person who -
knowingly harbors any person whom he knows or has reasonable ground for supposing to be a spy …. shall be guilty of an offence.
Penalty : Imprisonment for one year.
– It seems to me that the penalty provided in this clause, when contrasted with the penalties imposed under clauses 79 and 80 is a ludicrous one. I move -
That the words “ one year “ be left out, with a view to insert the words “seven years “ in lieu thereof.
– I am prepared to accept the amendment, although I think that seven years’ imprisonment would be a harsh punishment, in my own case, if a friend of mine happened to be the offender, and I sheltered him. It is only the manly people who will suffer under this provision.
– The honorable senator would be a traitor to his country.
– Yes, but one has sometimes to choose between his country and his friends. I am quite prepared to accept the amendment, as I am anxious to get the Bill through.
. I would like to know, for future guidance, who is the individual responsible for ladling out the penalties to be inflicted for breaches of the law under the Bill.
– Give notice for tomorrow.
– The Bill will be passed to-night, I hope. At the same time, I would like to know how these penalties are arrived at.
– We are making the penalties uniform, so what has the honorable senator to complain of ?
– We are endeavouring to make them uniform, but we have not altogether succeeded.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 83 agreed to.
Clause 84 (Unlawful soundings).
– The word “effect” in line 6 of sub-clause 4 should be “affect.”
– That is a printer’s error, which will be remedied by the Clerk.
– This clause provides, among other things, that any person in the Commonwealth who communicates to any person outside the Commonwealth any record, or any information concerning unlawful soundings, or who communicates to any other person such information with intent that it may be communicated to any person outside the Commonwealth, shall be guilty of an indictable offence; but I see nothing in the Bill which prohibits any person from taking soundings, nor any definition of unlawful soundings.
– The definition is in sub-clause 2.
– The taking of soundings should not be regarded as unlawful. The offence should be communicating them,. Persons may take soundings with no unlawful intent. Channels are constantly changing, and, for mercantile purposes, and even for fishing purposes, soundings have frequently to be taken.
– It is provided in subclause 2 that soundings taken in territorial waters are deemed to be unlawful unless made under the authority of the King, the Commonwealth Government, or a State Government; or, unless they are reasonably necessary for the navigation of a vessel engaged in a purpose which is not unlawful. It is necessary for the Government to have control. Permission to take soundings can be obtained from the Commonwealth. Ample power is given in the clause to take soundings for mercantile purposes.
Clause agreed to.
Clause 85 agreed to.
Clause 86 (Institution of prosecution).
– This clause provides that no prosecution can be instituted without the consent of the Attorney-General ; but subclause 2 provides that nothing in the section shall prevent the discharging of the accused if proceedings are not continued within a reasonable time. Who is to give that decision ? If the decision is to rest with a magistrate, I would point out that proceedings may not have been commenced before a magistrate, or, perhaps, they may not be continued.
– After the proceedings have been taken by the AttorneyGeneral, the Court will determine the matter.
– A previous clause provides that an accused person may be remanded from time to time. Though I do not think it is provided, as it is provided in similar measures in the States, that a remand shall not exceed eight days, if the Crown ask for and secure a remand for a certain period, and, if at the end of that period they ask for a further remand, the Court will consider whether, in all the circumstances, a reasonable time for the prosecution to go on has elapsed. If the Court decides that a reasonable time has elapsed, it will be open for it to discharge the accused.
Clause agreed to.
Clause 87 (Conspiracy).
.- To be consistent, it is my intention to move that the penalty be increased from three years to seven years.
– But this is dealing with another matter. This does not arise out of the war.
– This clause provides that any person who conspires with another person to commit an offence against the law of the Commonwealth, shall be guilty of an indictable offence.
– The honorable senator proposes to give three years for the actual offence, and seven years for conspiring to commit the offence.
– I seek to have something like consistency in the Bill. I move -
That in the penalty the word “three” be left out, with a view to insert in lieu thereof the word “ seven.”
Amendment negatived.
Clause agreed to.
Clauses 88 to 90 agreed to.
Clause 91 -
Any person who without lawful excuse . . . permits any cattle or other live stock … to trespass or stray upon any land … in the occupation of the Commonwealth, shall be guilty of an offence.
Penalty : Five pounds.
– The penalty under this clause is altogether too heavy. Such a fine, imposed for allowing a goat to wander on a railway, for instance, would be more than the goat was worth.
– But the straying of a goat on a railway line might endanger the lives of many travellers.
– The punishment is altogether out of proportion to the offence. A penalty of £2 would he ample. I move -
That the word “five” be left out, with a view to insert in lieu thereof the word “ two.”
In an ordinary case of trespass the offending animal would be sent to the nearest pound, and the owner would have to pay only a few shillings to secure its release.
– I hope that the Committee will not fall into the trap set by Senator Senior, who, in support of his amendment to reduce the proposed penalty, has spoken of a goat trespassing on a railway, but has carefully refrained from mentioning what might happen if a bullock or camel did so. My railway experience would lead me to suggest that the penalty, if altered at all, should be increased from £5 to £10, ‘ or £20. I know what have been the consequences to life of the straying of animals on a railway line. I know, too, the inconvenience that has arisen from the carelessness of persons who, seeing a bit of good feed along a railway line, have allowed their animals to depasture thereon. Straying animals add tremendously to the risk of railway travelling. I have known a cowcatcher to mount over two or three sheep lying at night on a railway line, with the result that the engine has been derailed. Railway accidents occur very often from simple causes, and the consequences are sometimes very disastrous.
.- I think, Mr. Chairman-
– What ! two speeches about a goat at this time of night?
– I can afford to ignore an interjection of that kind. The point I wish to emphasize is that this clause applies to the case of animals straying, not only on railway property, but on the Capital Site, which is 100 square miles in extent. It applies to the total stretch of the east-west railway and to the line from Port Augusta to Oodnadatta. If it is thought desirable to have a heavy penalty in the case of trespassing on a railway line, let us say so, but do not let us agree to a sweeping clause of this character.
Amendment negatived.
Clause agreed to.
Title agreed to.
Motion (by Senator Gardiner) proposed -
That the Bill be reported to the Senate with amendments.
– I move as an amendment -
That clause 47 be reconsidered.
This is one of a number of clauses which were hurriedly put, and its provisions must have escaped notice. Under it any outside person who aids a prisoner to escape is liable to five years’ imprisonment, whereas, under clause 49, the penalty provided in the case of a prison official who wilfully permits a prisoner to escape is only two years’ imprisonment. I desire that the clause shall be reconsidered so that the penalty may be reduced to two years. I think that the five years’ penalty must be a mistake.
– I agree to the reconsideration of the clause.
Senator Lt.-Colonel O’LOGHLIN (South Australia) [10.54]. - In support of what Senator O’Keefe has said, I would point out that under clause 48 a prisoner who escapes from lawful custody is only liable to imprisonment for two years, whereas a person who aids a prisoner to escape may be imprisoned, under clause 47, for five years. The penalties under many of these clauses seem to have been arrived at in a most haphazard way, and they should be put right.
Motion for reconsideration agreed to.
Clause 47 -
Any person who-
aids a person in escaping, or at tempting to escape from lawful custody …. shall be guilty of an indictable offence.
Penalty : Imprisonment for five years.
Amendment . (by Senator O’Keefe) agreed to -
That the word “five” be left out, with a view to insert in lieu thereof the word “two.”
– This clause provides a penalty for a person who aids another person in lawful custody to escape or attempt to escape, but there is no provision for a penalty on the person escaping or attempting to escape. If a person has been convicted and escapes, or attempts to escape, he may be punished, but not when he is merely in lawful custody, as when waiting trial after committal.
– My point is that imprisonment for five years is altogether too much in the case of an outside person who aids another to escape, while an officer of the gaol who similarly offends is liable to only two years’ imprisonment.
– From the clause it would appear that the person in lawful custody who escapes or attempts to escape may be doing something lawful, while a person who aids him is punishable.
Amendment agreed to.
Clause, as amended, agreed to.
Bill reported with amendments.
Standing Orders suspended, and Bill passed through its remaining stages.
page 361
Motion (by Senator Pearce) agreed to.
That the Senate, at its rising, adjourn until 11th November.
Sitting suspended from 11 to 11.20 p.m.
page 361
The PRESIDENT announced the re ceipt of a message from the House of Representatives intimating that it had agreed to the Senate’s amendments in this Bill.
Senate adjourned at 11.22 p.m.
Cite as: Australia, Senate, Debates, 28 October 1914, viewed 22 October 2017, <http://historichansard.net/senate/1914/19141028_senate_6_75/>.