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Thursday, 13 September 1973
Page: 972


Mr SINCLAIR (New England) - Before the adjournment last night I was looking in a broad way at the concept that is advanced in the Bill that is now before us. I think all of us need to recognise that this Bill is comprehensive. It is going to abolish capital punishment in every area where it is now pertinent. I suggested last night that there are a number of concepts of change in our community which we need to take into account if at this stage we are going to destroy the opportunity for future governments to extract the death penalty if it should be felt necessary in- relation to certain crimes.

I am personally opposed to the Bill because I do not believe that in this day and age we are in a position where we can take that final judgment. I explained last night that we are not adjudicating on particular instances, we are here to make a law. We are creating a circumstance within which there can never again be a decision taken by a court of law considering a particular case that a man should be executed. To me, there certainly is a distinction between the law as it exists and the enforcement of that law. Given the present circumstances in Australia I consider that it would be very doubtful whether one would wish to enforce the death penalty. But I believe that, given 3 circumstances of change in our community, it is premature to eliminate the death penalty altogether from all areas of operation in the laws of this country. I see that a number of areas where the penalty is now laid down should be eliminated. Indeed, I think that there are many areas of our penal law which need to be revised, the existing penalties reconsidered and the nature of their enforcement reconsidered.

I have strong personal views about our penal system. There are very real difficulties in the penalties that are extracted and I doubt whether as it is now constituted the penal system throughout Australia does give either reasonable protection to society on the one hand or, on the other hand, give to those who are imprisoned a reasonable opportunity for rehabilitation or to return to normal life in the community. Indeed, it is because of the deficiencies of our penal system that honourable members must be conscious that we need to think quite critically of whether we should accept at this stage this all embracing piece of legislation.

I think it should be considered in 3 areas, the first of which is the nature of crime itself. When I spoke last night I referred generally to the degree to which in recent times there has developed in Australia and around the world a character of crime which is quite antisocial. It is not personal in its antagonism but embraces a heterogeneous group of people many of whom may not even be known to the perpetrator of the criminal act. One needs only to think of some of the instances of aircraft bombing and hijacking, the incident in Munich at the Olympic Games and the behaviour of the deranged Charles Whitman in the tower at the University of Texas when he started a campus shoot-up. All are instances of the way in which crime itself is changing. For that reason I do not think that the pattern of past law enforcement can be regarded as adequate to meet the demands of the criminal element that exists today.

I am as concerned about the capacity of law enforcement as I am about the changing character of crime, but if law enforcement agencies are to be given a reasonable opportunity to undertake the task with which they are charged it is essential that those of us in government and Parliament do not deny them the ultimate weapon to ensure that a criminal can never again commit an offence. In the deterrent area the nature of capital punishment should not be lost sight of. I believe that there is a range of crimes for which, for that reason, capital punishment should be retained. At the Committee stage I shall move a number of amendments which prescribe a suggested number of residual areas where I see it as essential that capital punishment continues. There are other areas to which one needs to give serious consideration. I do not intend to move an amendment to retain capital punishment in those areas. In considering this point we should keep in mind, for example, the disappearance of the 2 girls in Adelaide the other day and the character of sexual offences against children by people who tragically are mentally deranged and are concerned not one iota about the lives of other people.

In our community crimes are committed which are distinctly different from those which traditionally existed. Mechanisation and technical progress have meant that for the criminal as much as for anyone else there are techniques which can be used to destroy not one or two human lives but many. Criminal actions are taking place which to my mind are not adequately being controlled by existing law enforcement procedures. In those circumstances I believe that it is quite premature to think of the complete elimination of capital punishment from out statute books.

The second change has been in the attitudes of society. Society certainly has moved a long way from the rather harsh and Victorian postures that our forebears adopted. One would not want in any sense to see a restoration of the harshness and inhumanity that existed until not so many years ago, but in referring to capital punishment I do not believe it is necessary to regard crimes only in that Victorian way. It is because of the attitudes of our society and a swinging back to apprehension that it is again necessary to have some form of ultimate physical sanction that can be exercised against criminals in our community.

A poll was conducted in California at about the time of the last United States presidential election. It demonstrated the attitude of those citizens of the United States towards capital punishment. Last year we in the Country Party issued a questionnaire to ascertain the attitudes of our membership towards the death penalty. Of all the questions we put to our members the vote on the retention of capital punishment for some crimes was by far the most convincing. The first question was: 'Do you think capital punishment should be abolished for all crimes?' All. States voted overwhelmingly against the abolition of capital punishment.

The next question was: 'If "No", do you believe the death penalty should be retained for (a) crimes against national security, for example, treason; (b) murder by destruction of aircraft; (c) murder of policemen or warders; (d) murder associated with kidnapping?' All States voted convincingly for the retention of the death penalty in all 4 cases. However, in respect of crimes against national security the State percentages in favour of retention averaged only 75 per cent as against 91 per cent average for all other responses. Victoria recorded a slightly lower percentage vote than all other States in respect of murder by destruction of aircraft, this being 89 per cent as against the national average of 92 per cent. In Queensland a somewhat lower percentage was recorded in respect of murder of policemen or warders as 86 per cent voted in favour of the retention of capital punishment for such crimes as against the average of 90 per cent overall. Country Party members in all States strongly favoured retention of capital punishment. They also favoured its retention for the 4 crimes I detailed earlier.

Of course, that does not necessarily reflect the views and attitudes of everybody even in the areas canvassed by the questionnaire, but I think it is true that in our society there is a genuine concern at the degree to which so many criminals seem to be able to divest themselves of responsibility simply because of the lack of an ultimate sanction. It is equally true that in reality there has not been, and I do not believe that there should be, enforcement of the death penalty against a criminal in our community at this time, but I draw a distinction again between the actual determination of the penalty, the execution of the penalty and the prescription of the penalty.

We are here to prescribe the law, not to enforce it. We are not here as a law enforcement agency but we have a responsibility to set parameters for the community which enable it to feel reasonably safe and confident that laws are available to the courts to enable them to minimise the threat of criminal acts against individuals or against the state as a whole. I believe that were this Bill to be passed there would be an erosion of that security and of the capacity of law enforcement agencies to undertake their task. For that reason I do not believe that at this stage we should approve of total abolition of capital punishment.

Our penal system and the character of punishment do need quite critical examination. There are problems in our penal institutions. Fortunately there is a growing number of institutions which have taken into account the rights and opportunities of the individual. But when one considers the prisoner one really needs to consider him in relation to society as a whole. After all, the laws are there not to protect the prisoner but to protect society. If a prisoner or a criminal is not able to conform to society and society suffers as a result, society must take whatever action is necessary in order to protect itself. We as the Parliament of the Commonwealth have that responsibility. I do not believe that at this stage of Australia's development we can fail to take into account the attitudes of those people in the community who are concerned about the safety of lives and livelihoods and of the general trends in crime itself. Nor do I believe that we would be acting responsibly if we were to accept the total abolition of the death penalty. For that reason I am, and most of my colleagues in the Country Party are, opposed to this Bill. We will not be voting as a party. On this side of the House we vote as a matter of conscience. We see this subject as one of those areas of important social and legal reform, just as we saw the subject of the debate just concluded.

Consideration of this particular Bill denies the opportunity to consider some of the many other alternatives for reform in the penal system. This is a comprehensive Bill. It is designed to eliminate completely the availability of capital punishment for any crime henceforth committed under Australian jurisdiction. In my opinion it goes too far. I believe there is a necessity for us to retain capital punishment for a selected number of crimes. Amendments which I will, move in Committee are intended to identify a number of these areas. I believe they are the minimal number necessary to ensure that society itself will be adequately protected. For that reason, whilst the Bill in many ways proposes a worthy social change, I believe it is premature and should be rejected by the House. If the amendments I will move are supported they will retain, in a critical range of areas, the opportunity for society to levy against the criminal that ultimate sanction which the death penalty represents.







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