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Thursday, 17 November 1960


Mr WHITLAM (Werriwa) .- Mr. Chairman,we are here concerned with a Commonwealth law, offences against that law, and the punishment for those offences.

If the Opposition's amendment is carried, this Parliament will not in any way interfere with the administration of justice in the States or with the criminal laws and procedures of the six different States. We shall merely say what will happen to people who are convicted of an indictable offence under the Commonwealth Crimes Act, having already suffered two convictions for indictable offences under other Australian criminal laws - Commonwealth, State or territorial.

As the honorable member for Hindmarsh (Mr. Clyde Cameron) has said, an anomalous situation arises. If a young man of, say, 20 years of age suffers a third conviction for an indictable offence which is committed in New South Wales, his punishment will vary according to whether the third conviction was for an offence under the Commonwealth Crimes Act or under the State law. If the conviction is for a breach of the Commonwealth Crimes Act, the young man can be declared an habitual criminal, but if it is for a breach of the State law, he cannot be declared an habitual criminal - not because his criminality is any less, but because he is not yet 25 years of age. The difference between the various States is bad enough, Sir. In Tasmania, a youth who suffers a third conviction for an indictable offence can be declared an habitual criminal at seventeen, but a youth cannot be so declared in Queensland, Western Australia and South Australia until he is eighteen, or in New South Wales or Victoria until he is 25.

There is surely little enough justification for these variations between the States. But we are now, so we are told, modernizing and reforming the Commonwealth criminal code. Surely we ought to see that the same punishment attends breaches of the Commonwealth law from one end of Australia to the other and we should not be bound by the variations which occur in the different States. There are enough irrational differences already in the administration of the Commonwealth Crimes Act in the different States. The rules of evidence in criminal trials differ from State to State. The rules of evidence which apply to criminal trials for breaches of the Commonwealth Crimes Act vary from State to State. The position of juries in criminal cases varies from State to State. The provisions with respect to the composition of juries and whether women, or young or old men or women, can serve on them, and whether jurors have to have property qualifications for the trial of offences under the Commonwealth Crimes Act, vary from State to State. We ought to take the opportunity of introducing in respect of these matters a model code. We are doing it in some respects. We are providing in this bill something that is provided in no other law in Australia. We are providing that in respect of offences under this code evidence of a person's known character shall be admitted in order to determine whether that person is guilty of one of the essential constituents of serious crimes. Under the Commonwealth Crimes Act as amended by this bill, but under none of the State acts, evidence of a man's political reputation in other respects will be admissible.

If we introduce odious or admirable standards - according to the way one regards them - in any respect under the Commonwealth criminal code as to evidence or juries and so on, we ought also to do it with respect to penalties. What the Australian Labour Party asks is that the standard of punishment should be the most enlightened and the most modern under this most recent criminal code. I shall not say that this is the most admirable or most modern criminal code in Australia, but it is the most recent. In these matters, Sir, we ought to set the most modern and the highest standards instead of accepting the lowest and oldest standards. We ought to see that the punishment for crimes under Commonwealth law is rational and uniform from one end of Australia to the other. The penalty which a man suffers if he is convicted of an offence under the Commonwealth Crimes Act should not depend on the State in which he commits the crime. A person can be declared an habitual criminal in New South Wales or Victoria only if he is 25 years of age. In the other three mainland States, he can be declared an habitual criminal if he is only eighteen, and in Tasmania if he is aged only seventeen. The minimum age set under State laws for two-thirds of the people of Australia is 25.


Mr Haylen - Twenty-five years is a United Nations recommendation.


Mr WHITLAM - It is, but we forget what goes on beyond our shores. We know that two-thirds of the people of Australia cannot be declared habitual criminals unless their third offence is committed after their twenty-fifth birthday. If it happens to be a Commonwealth offence, they can be declared at eighteen years. We think that is an irrational anomaly and that we should take the opportunity in this recent code to follow the standard that already applies to two-thirds of the people.







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