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Thursday, 13 September 1973
Page: 990


The CHAIRMAN - I do not think that course can be followed. If we debate them together the question will be that the amendments be agreed to. I suggest to the honourable member that he move the amendments separately, even if some latitude is allowed during the debate.


Mr SINCLAIR - My first amendment relates to clause 3 which reads in part: 3. (1) This Act applies within and outside Australia and extends to all the Territories.

(2)   Subject to sub-section (3), this Act applies in relation to, and in relation to offences under, the laws of the Commonwealth and of the Territories, and, to the extent to which the powers of the Parliament permit, in relation to, and in relation to offences under, Imperial Acts.

I move:

In sub-clause 2 omit the words 'and, to the extent to which the powers of the Parliament permit, in relation to, and in relation to offences under, Imperial Acts.'

Briefly, this amendment which seems complex in form is to ensure that those provisions of the Imperial Acts which apply to Australia by reference only will not be provisions in respect of which the main operative language of this Bill will apply. For example, the Defence Act of Australia creates certain offences by way of adapting to the purposes of the Australian Defence Forces the provisions of the Naval Discipline Act of the United Kingdom and the Army Act of the United Kingdom. The Defence Act contains no provisions creating offences for which the penalty is death; these offences are created in the bodies of law which apply separately to the 3 Services. This matter was examined by the Senate Standing Committee on Constitutional and Legal Affairs. In its report of December 1971 it stated:

By virtue of section 34 of the Naval Defence Act, the Naval Discipline Act 1957 of the United Kingdom, subject to adaptations, is applied in the Royal Australian Navy. The offences which, under the latter Act as modified, carry the death penalty are: . . Misconduct in action by persons in command with intent to aid the enemy;

.   . Misconduct in action by other officers and men;

.   . Obstruction of operations;

.   . Corresponding with, supplying or serving with the enemy;

.   . Mutiny;

.   . Failure to suppress mutiny with intent to assist the enemy;

.   . Civil offences (contrary to the law of England) of treason or murder.

Sections 54 and 55 of the Defence Act apply to members of the Military Forces at any time serving overseas, and at all times during war, the provisions of the Army Act (U.K.) as it was at the date of its repeal in 1956 but subject to amendments effected to it by Australian Military Regulations.

Under this legislation the offences carrying the death penalty are: . . Traitorously delivering up to the enemy a garrison, fortress, post or guard or traitorous correspondence with the enemy;

.   . Mutiny or failure to suppress mutiny.

Section 8 of the Air Force Act applies to the Royal Australian Air Forcethe Air Force Act 1939 of the United Kingdom, as adapted.

Under sections 4, 6 and 7 of the latter Act numerous offences committed in the face of the enemy, or treacherously or involving mutiny or sedition are made the subject of the death penalty.

I believe that from the nature of the offences which I have just recited the purpose of the amendment which I have now moved will be apparent. They relate to military offences largely categorised in the specifications that were referred to in the report of the Senate Standing Committee on Constitutional and Legal Affairs.







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