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Thursday, 17 November 1960

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - It is true that the honorable member for Hunter (Mr. James) called my attention to this provision of the bill, and also to the recent New South Wales amendments. When section 17 was first passed, I think all the States provided for indeterminate sentences when a person was declared an habitual criminal, and the reference was usually to detention of the person in a reformatory prison. Not all the States have now got reformatory prisons, so it was necessary to take the reference to reformatory prison out of section 17. The States vary among themselves in fixing the minimum age below which a person may not be declared an habitual criminal. New South Wales has departed altogether from the idea of the indeterminate sentence, and has virtually got rid of the idea of an habitual criminal as aforetime. I think that the minimum ages in the various States range down as low as eighteen and as high as 25. Proposed new section 20c reads -

A child or young person who, in a State or Territory, is charged with or convicted of an offence against the law of the Commonwealth may be tried, punished or otherwise dealt with as if the offence were an offence against a law ot the State or Territory.

If the young person is a young person within the meaning of the State law and if 25 is the age below which a young person cannot be declared an habitual criminal so be it. If, on the other hand - and this is a possibility - the State does not regard a person between the age of 21 and 25 as being a young person, but sets 25 as the minimum age below which declaration as an habitual criminal cannot be made, then the Commonwealth law, as the Deputy Leader of the Opposition (Mr. Whitlam) says, would permit a declaration in the case of a person between the ages of 21 and 25. But Commonwealth law has to accommodate itself to the laws of the States, and live up to a fairly general principle in this matter. As far as possible the Commonwealth system is fitted in with the State systems. We use the States' laws as to evidence, very largely. We use a number of the State procedures too. The idea is to allow the Commonwealth legislation to run with the State legislation as nearly as possible.

The Deputy Leader of the Opposition, in making his proposal, overlooks, I think, the fundamental human fact that whereas it may be quite all right in New South Wales to select a particular age as the minimum age below which a person may not be declared an habitual criminal, that does not necessarily fit the community circumstances of other places. It is quite wrong to think of Australia as absolutely uniform in those respects. It may very well be that a State - which, after all, has a very good knowledge of its own conditions and of the threats to its own system - may fix a particular age below which a person may not be declared an habitual criminal. One State may fix the age at eighteen years and another at 25 years.

Sitting suspended from 6 to 8 p.m.

Sir GARFIELD BARWICK - When the sitting was suspended, I was speaking about on amendment moved by the Opposition to limit section 17 of the Crimes Act to provide for the declaration of a person as an habitual criminal if he is over 25 years but not if he is under 25. I had pointed out that the laws of the, States are not uniform in this respect. Some of the States fix the minimum age at which a person can be declared an habitual criminal at less than 25 years; some fix the minimum at 25. New South Wales has given up the idea of an indeterminate sentence so that, strictly speaking, there are no provisions for the declaration of an habitual criminal in that State. As I have said, we have provided in proposed new section 20c -

A child or young person who, in a State or Territory, is charged with or convicted of an offence against a law of the Commonwealth may be tried, punished or otherwise dealt with as if the offence were an offence against a law of the State or Territory.

This, of course, is permissive. It will allow a State court exercising federal jurisdiction and trying young offenders against Commonwealth law, to deal with them in the same manner as the court would deal with young people who had committed an offence against the laws of that State. This might yield different results in different States. In clause 17 of the bill, which amends section 19 of the act, there is also a permissive pro vision. Neither of these provisions is mandatory. There is a permissive clause that a court dealing with an offender against the law of the Commonwealth may impose an indeterminate sentence. 1 believe that these two provisions will work out in this way: The State courts will treat an offender against Commonwealth law in the same manner as they will treat an offender of the same age in respect of an offence against State law. Some States might not regard a person of 25 years as a young person; other States may. If they regard a person as a young person at eighteen years or at 25, whichever is the minimum age under the State code, then the probability is that the courts will not declare him an habitual criminal although they would be entitled to under the amendment made by clause 17. If, on the other hand, the State law treats a person of that age as not a young person, then the courts will treat him as an adult. In that event, more likely than not, they will declare him an habitual criminal if the other elements are proven.

Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - Could you not make it mandatory?

Sir GARFIELD BARWICK - No, you could not do that. It is not desirable to do so. You must leave it to the court to decide whether it will declare in any given case. A man might have committed a series of offences, but the judge might say, " Under the State law, I will not declare this man". So you cannot make it mandatory. With the State systems to cope with, and a fairly well-established Commonwealth practice of endeavouring, so far as possible, to allow the States when exercising federal jurisdiction to follow their own procedures and practices - this is not universal, but so far as possible it is the endeavour - the Government has solved the problem by proposed new section 20c, and by clause 17 which amends section 19 of the principal act.

As there will not be any reformatory prisons in the States, the habitual criminal who is so declared, will be held at the GovernorGeneral's pleasure; but the GovernorGeneral will be advised by the AttorneyGeneral of the day as to what should be done with the prisoner. This, of course, is a procedure that is well known in administration; it is the common task of the Attorney-General. I do it with great frequency and advise the Governor-General what is to happen to a person who either asks to be released earlier or is imprisoned at the Governor-General's pleasure for some offence.

Since the State of New South Wales has given up the idea of an indeterminate sentence, it occurred to me that New South Wales might not be prepared to allow the Attorney-General of the Commonwealth access to the parole board which the State has heretofore kept to advise the Minister of Justice or the Attorney-General in New South Wales as to what should be done with prisoners who were formerly held on indeterminate sentences. I have spoken to the Minister of Justice of New South Wales, and the Government of that State is prepared to allow the parole board to go on advising the Attorney-General of the Commonwealth at his request what is the best thing to do for the person who is under an indeterminate sentence. This arrangement seems to me to be flexible and will make the least inroads on the practices of the State.

For the Commonwealth to fix a minimum age and to apply it over all the States would, in some instances, throw a State into disconformity in this sense: It fixes eighteen years as the age below which it will not declare an habitual criminal in respect of offences against its law, yet in respect of Commonwealth laws it must observe the minimum age of 25 years. It is not a good thing for any State to allow two standards for the people - one in relation to Commonwealth law and one in relation to the State.

Mr Griffiths - Cannot you make it uniform?

Sir GARFIELD BARWICK - I could not make these provisions uniform, because the effect would be to make them ununiform in the broad sense. If one person happens to be charged under a State law and another under a federal law - sometimes these may overlap - =they would be treated differently. The idea is to have them treated uniformly in a State but not necessarily uniformly over the whole Com. mon wealth. This matter is not easy to re solve, but the resolution we have taken on it was reached after a good deal of thought and consultation with the Administration and that is the provision in the bill. What the Deputy Leader of the Opposition (Mr. Whitlam) has suggested would only cause want of uniformity within the States which is undesirable, and we are not prepared to accept the amendment.

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