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Wednesday, 28 October 1914

Debate resumed from 23rd October (vide page 314), on motion by Senator Gardiner -

That this Bill be now read a second time.

Senator Lt.-Colonel Sir ALBERTGOULD (New South Wales) [3.18].- Although I have not had much opportunity to examine this Bill since its second reading was moved, a cursory perusal of it has disclosed that it represents a codification of a great many provisions of the existing law, although those provisions have not been dealt with by Statute law, but by common law. The measure, therefore, will be a convenience to the public, in that it will enable them to ascertain the nature of offences committed against the Commonwealth from time to time, and the punishment which may be inflicted upon conviction of the offenders. The Bill, to my mind, does not err on the side of leniency in the matter of the penalties provided under it. Of course it may be urged that the question of determining whether leniency should be exercised will rest in the hands of the Judges or magistrates who hear the evidence in such cases, and who will thus be enabled to say exactly what punishment will fit the offence that has been committed. We all know that the idea generally entertained by the community is that we should not err on the side of inflicting excessive punishment, but that we should rather lean the other way. It has frequently happened that where excessive punishments have been provided by law, the fear that they would be inflicted has prevented convictions being recorded against accused persons. It would be rather an unfortunate position if such a consideration weighed with a jury in regard to the offences which are dealt with under this Bill. That difficulty in the administration of justice is always liable to occur where the penalties provided for an offence are very severe. Certain changes are proposed by the Bill in the powers given to magistrates in dealing with a great many offences. Under the old Justices Act of England, which has been followed pretty well by each of the States, a limitation is imposed uponthe time within which an offence may be prosecuted, and also upon the punishment which may be meted out for an offence.

I find that in this Bill provision is made to extend the time within which a prosecution may lie for offences. In clause 22 it is provided that - a prosecution in respect of an offence may be commenced -

(a)   where the maximum term of imprisonment in respect of the offence in the case of a first conviction exceeds six months - at any time after the commitment of the offence;

(b)   where the maximum term of imprisonment in respect of an offence in the case of a first conviction does not exceed six months - at any time within - one year after the commission of the offence; and

(c)   where the punishment provided in respect of the offence is a pecuniary penalty, and no term of imprisonment is mentioned - at any time within one year after the commission of the offence.

Under the Justices Acts of the States, in the case of offences punishable by a magistrate upon summary conviction, and in connexion with which a magistrate has no right to send the. offender to his trial by jury, provision is made that the prosecution must be entered upon within six months. Some reason should be given for the proposed extension of the time within which a prosecution may lie for offences. Some of the offences dealt with in the Bill are comparatively trifling, and in such cases it should be ample to provide that a prosecution must take place within six months. If honorable senators will turn to the last clause, they will find that it reads -

Any person who, - without lawful excuse (proof whereof shall lie upon him), suffers or permits any cattle or other live stock in his possession, custody, or control, to trespass or stray upon any land belonging to, or in the occupation of, the Commonwealth, shall be guilty of an offence.

Penalty : Five pounds.

I put it to honorable senators to say whether it is not absurd to provide that the Crown Prosecutor may prosecute a man at any time within twelve months after the commission of an offence of this kind ? I should say that in such a case, if the time within which a prosecution would lie were limited even to a month, it would be found ample to enable justice to be done.


Senator Keating - Certain portions of the Commonwealth should be placed outside the operation of the clause referred to.


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD.- Clause 90 provides that-

Any person who, without lawful excuse (proof whereof shall lie upon him), trespasses or goes upon any land belonging to or in the occupation of the Commonwealth. and used for any naval or military purpose, or any purpose incidental thereto, and as to which any notice is posted thereon prohibiting trespass, shall be guilty of an offence.

Penalty : Ten pounds.


Senator Guthrie - Suppose the offender clears out for twelve months?


Senator Lt Colonel Sir ALBERT GOULD - I remind the honorable senator that, under the Bill, the offence is regarded as trivial, inasmuch as the penalty provided for it is only £10. Do honorable senators think that a man who has committed a trivial offence of this kind should have the possibility of a prosecution held over his head for twelve months ?


Senator Guthrie - Suppose he takes photographs and then clears out?


Senator Lt Colonel Sir ALBERT GOULD - That would be another offence altogether, which is dealt with much more drastically under the Bill. The provisions of the Bill are also to apply to all Statutes that may be passed by any of the State Parliaments, and I have directed attention to the proposal to extend the time during which prosecutions may lie for a number of comparatively trifling offences. Clause 12 provides that -

(3)   A Court of Summary Jurisdiction may not impose a longer period of imprisonment than one year in respect of any one offence against this Act.

The usual term of imprisonment provided for under our existing laws in such cases is six months. Many offences under the measure punishable with a maximum of two years' imprisonment may be dealt with by a justice of the peace. He is able only to impose a penalty of imprisonment for one year, and, if he believes the offence to be deserving of more serious punishment, it is competent for him to send the man for trial by jury. If the offender is then convicted, the maximum term of imprisonment may then be imposed. Another matter which I think calls for attention has reference to the case of persons previously convicted. Honorable senators are aware that, if a man is convicted of an offence before a jury, the Court inquires as to his previous history, and, if any previous convictions are recorded against him, these are taken into account in considering the punishment to be imposed. Clause 17 of this Bill provides that -

(1)   Where a person convicted of an indictable offence against the law of the Commonwealth, has been previously convicted of any offence against the law of the Commonwealth or of a State or of a Territory, and sentenced to a term of imprisonment of one year or longer with hard labour, the maximum term of imprisonment in respect of the offence of which he is convicted shall be double that provided by the section creating the offence.

The maximum penalty provided for some offences may be five years or seven years, and, under this Bill, that term is to be doubled.


Senator Senior - How would the Court deal with a man who had previously been sentenced to imprisonment for life?


Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir ALBERTGOULD. - I must leave the Minister to answer the honorable senator's question. I ask honorable senators whether they think it wise to make a provision of this character ? It seems to me that it would be held to be an intimation to the Court that there was some object in the insertion of this clause in the Bill, and it would appear to be a direction that the Court must take care to give an offender who had previously been convicted a very severe penalty. Would it not be much better that the matter should be left to the discretion of the Judge? He will know the history of the case and of the offender, and will be in a position to determine what would be a reasonable punishment to inflict. Honorable senators are well aware that there are often Judges who are disposed to impose very severe sentences ; and I do think that again is desirable. In clause 18 there is a provision regarding indeterminate sentences, to which I take no exception. If a man's offences have been bad and frequent enough, he can, under that provision, be sentenced for an indeterminate period, the termination of which will depend a great deal on his conduct while in gaol. The principle of indeterminate sentences has been tried in a great many cases, and generally such sentences have been found to be of great value, although certain people contend that it is not desirable to give power to inflict them. It would be very much better to let the power given by clause 18 be placed in the hands of the Judge instead of inserting a pro vision to double the maximum term of imprisonment. While the Bill, as I said, places in statutory form a great many offences that are already dealt with under the common law, I have not had the opportunity of ascertaining whether the term of punishment provided is greater or less than is usually inflicted in regard to many of them. There are certainly a few offences specified in this measure, such as espionage and matters of that kind, that it is very desirable should be provided for by Statute, and which in themselves would justify honorable senators in accepting a Bill of this character. Doubtless, in Committee, the Minister will be prepared to listen to any arguments adduced by honorable senators, but I think we, on this side, shall be very helpless with regard to any amendments submitted in this Chamber, unless they gain the ear of the Minister or the officials advising him. Personally I do not think the Opposition are called upon to deal very much with this matter in Committee. The Government have introduced the Bill, and must accept the responsibility of it, and the Opposition may fairly claim, therefore, that they cannot be held responsible for any provisions which do not altogether commend themselves to the public generally. It is certainly undesirable to make the penalties too severe. Certainty of punishment is much better than severity of punishment. An offender must, of course, be punished both as a deterrent to himself and as an example to the public generally, who might be inclined, to commit a similar offence if the law did not protect the rights of the community. I should like to point out the jealousy with which interference with political liberty is looked at under this measure. Clause 29 provides -

Any person who, by violence or by threats or intimidation of any kind, hinders or interferes with the free exercise or performance by any other person, of any political right or duty, shall be guilty of an offence.

Penalty : Imprisonment for three years.

I commend that to a great many of my honorable friends and their friends, who are very likely to get themselves involved in this particular form of litigation. Another matter of very grave importance to every individual in the community is the right to work, and not to be hindered when he is going to work in consequence of a strike taking place in connexion with any trade or industry. One gentleman occupying a prominent position in the party opposite on one occasion wrote a book and described one method of making a man into a good trade unionist. According to him, an individual who had not joined a union was going to get work where there was a strike, and had occasion to cross a bridge. The picket suggested to him that he could not get along, but he said he was going. On starting to cross the bridge, however, he found himself in the river.


Senator Gardiner - Moral suasion.


Senator Lt Colonel Sir ALBERT GOULD - I understand that that is the term applied. I believe the same thing occurred a second and third time, when the man was converted into a good trade unionist. If our friends had had this law in front of them at that time, instead of converting their opponent into a good trade unionist they would probably have converted themselves into good inmates of prisons. People who are so jealous about protecting political rights ought to be equally jealous in protecting personal and individual rights, one of the most important of which is the right to work at all times and in all circumstances. However, probably the Minister will be prepared to accept from me an amendment in that direction, so that there may be no cause for any complaint of this character in the future. I hope the Minister will be able in Committee to modify certain portions of the Bill in directions in which we think modifications ought to be made.







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