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Wednesday, 18 November 1959


Mr WENTWORTH (Mackellar) . - Mr. Chairman, a technical point arises again here. As it stands, the paragraph reads - that, since the marriage, the other party to the marriage has been in prison for a period of not less than three years after conviction for an offence punishable by death or imprisonment for life or for a period of five years or more, and is still in prison at the date of the petition;

On first reading that, I thought, as I believe most honorable members would think, that it meant that the crime for which the person was imprisoned would be a serious crime and, in fact, a crime more serious than one meriting a term of only three years; otherwise, the words " five years or more " would not appear, because they would be nugatory. However, on looking at the Tasmanian criminal law, I found that, under section 389 of the Tasmanian Criminal Code, practically all criminal offences, whether serious or relatively minor, are subject to imprisonment for up to 21 years and therefore, whether they are serious or not, fall within the class of crimes punishable by imprisonment for five years or more. That means that, in respect of Tasmania, this qualification becomes quite nugatory.

When one looks at the Victorian law, Sir, one finds queer anomalies. On looking at sections 215, 216 and 217 of the Victorian Crimes Act 1958, I found that, in Victoria, one can, technically, be punished by imprisonment for five years or more for cutting down a tree. This does not seem reasonable, and I do not think that any judge would sentence somebody for five years for such an act. But the fact remains that, under Victorian law, the cutting down of a tree is an offence punishable - not one that must be punished, because the provision does not use the word " punished " - by imprisonment for a period of five years or more.

Therefore, it seems to me that, if we are to' retain these qualifications in their present form, one should increase the specified period of not less than three years after conviction to not less than five years after conviction, in order to bring these qualifications into conformity with what a normal person would expect to be covered. It seems to me that there is no other way of properly drafting this paragraph, and that it should read - that, since the marriage, the other party to the marriage has been in prison for a period of not less than five years after conviction . . .

I think that that slight change would merely bring the paragraph into conformity with what a normal member of this chamber would think it meant if he had not read the Criminal Codes of Tasmania, Victoria and perhaps the other States. I must confess that I have not looked up the criminal codes of the other States.

I should be interested to hear the AttorneyGeneral's views on this matter.







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