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Friday, 12 December 1913

Senator RAE (New South Wales) .- The ex-Minister of Defence seems to me to be impregnated with a good deal of the old military Tory spirit, according to which there is nothing like thumping good penalties to secure good behaviour.

Senator McGregor - The honorable senator's Democracy is upside down.

Senator RAE - So is Senator Pearce's at the present time. He accused me of trying to make heroes of these fellows. Only the most lively imagination could construe anything I said in that way. I never said a word that implied that- I had any sympathy with offenders as such, or any desire to elevate to the rank of heroes those who kicked over the traces. Senator Pearce may make up in imagination what he lacks in general logic. He says that because a magistrate might still under my amendment inflict a maximum fine of £2, that is an argument for leaving the maximum at £5. Though a magistrate may do an injustice under the penalty I propose, at the worst he could only inflict an injustice that would be £3 less severe than the injustice which might be inflicted under the existing penalty. I remind honorable senators that offenders who commit grave breaches, involving the destruction of property, or it may be the maiming of any person, can be proceeded against under the common law. I take the instance cited by Senator Pearce of a boy's eyesight! having been injured. No one would have more sympathy than I with the victim of such an injury, but a boy indulging in horse-play, and attacking another from behind, might do so a hundred times without inflicting any injury at all. There is no evidence in the case cited of a malicious attempt to wound. A fine of £5 would do the victim of such an injury no good, and it would not prevent lads indulging In horse-play. The difficulty is that harsh or unfair magistrates may inflict a penalty out of all proportion to the offence, and, as Senator Barker has pointed out, by so doing make the Act itself unpopular by inflaming people's minds with a feeling of resentment. Senator Pearce is great in expounding the benefits which have followed from evolution, but I remind him that there has been evolution in the matter of punishment in the administration of justice, just as there has been in industrial matters, and as punishments have been reduced, offences against the law have decreased. It has been found that harsh punishments, by creating feelings of resentment, are provocative of further crime.

Senator Pearce - Then we have only to do away with all punishment to have no offences.

Senator RAE - Probably; and I hope we are working towards that in the future.

Senator Millen - The danger of that is that if we abolish laws we abolish lawmakers.

Senator RAE - Just so, and I should lose my job. No one knows better than does Senator Pearce that it is possible to reduce any argument, however logical, to an absurdity, and no one would be more ready to quote that if it suited his purpose.

Senator O'Keefe - It- is impossible to make a law that will meet every case.

Senator RAE - I admit that. I am not trying to bring about an ideal condition of things, but to get as near to it as practicable. I do not suggest the reductio ad absurdum of Senators Pearce and Millen that we should abolish all laws, and legislators also, but I do say- that merciful consideration in the punishment of offences has the tendency to improve the behaviour of those who are in fault. I have sons who are being drilled, and not one of them has been subjected to. the slightest reproof for anything he has done, which goes to show that the breed is not too bad after all. I am not speaking with any personal feeling in the matter, but because instances of harsh treatment have come under my notice. Neither Senator Pearce nor Senator Millen has replied to the contention that a reduction in the terms of detention, as proposed, justifies a prorata reduction in the fine. Monetary penalties and detention for the same offences should bear some relation one to the other.

Senator Millen - There is no reduction of the penalty for individual offences; it applies only to the cumulative effect of a series of offences.

SenatorRAE. - A man might commit twenty offences, for each of which he might be fined £5, and my contention is that if, as is proposed, there may be a reduction in the term of detention which may be imposed in respect of a number of offences, there should be a corresponding reduction provided for in the cumulative pecuniary penalty. The Minister has admitted that he is not particularly keen upon any money penalty, and I am, therefore, unable to see why he should object to the reduction of the fine which I propose. If in very few cases it is found necessary to impose the penalty of £5, we may assume that, as the system is continued, it will be found that a maximum fine of £2 will be as effective for the purpose in view as the maximum of £5 has been in the past.

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