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Wednesday, 28 October 1914


Senator KEATING (Tasmania) . - In a sense this Bill is an old friend, as successive Governments have had a measure of the kind under their consideration for years past, and this Bill, in substance, and, to a large extent, in form, has, I think, been upon the stocks for some time. It has long been recognised that it was desirable to have some uniformity as to procedure in the various Courts of the States exercising jurisdiction in relation to offences created by Acts of Parliament of the Commonwealth. In many of our Statutes we provide that in certain circumstances a person shall be guilty of an offence against the Statute, and penalties are obtainable against such persons by appropriate procedure in the Courts of the States. There has grown up a considerable disparity between the decisions that have been given in the various Courts of the States in relation to the same offence, and it has long been recognised that there should be some harmony and uniformity in regard to the penalties and their application by those Courts. It is eminently desirable that the procedure in enforcement of the penalties in order that the Statute law of the Commonwealth shall be maintained shall, as far as possible, also be harmonious and uniform. The Bill even goes beyond this, I take it, and is intended to apply to procedure and to criminal offences under the common law. It has been thought on previous occasions by members of the Senate and men of eminence in the legal profession that it was unnecessary to enact any detail of the common law by Statute, and yet as high a constitutional authority as the late Mr. Justice Inglis Clark, who was one of the Drafting Committee of the original Convention Bill of 1891, held that so far as the Commonwealth was concerned as an entity or as a body politic, no such principle applies as applies in the case of each of its component parts - the States - with regard to the common law. The common law runs throughout the States. It has inherent force and effect all through them, and applies in conjunction with and subject to their Statutes. Where the Statutes derogate from the common law upon any principle, they and the common law have to be taken in conjunction to ascertain what is the law in the State in regard to that principle. It is not so with regard to the Commonwealth. In the view of the late Mr. Justice Inglis Clark, the Commonwealth to a certain extent is an artificial entity, established by the Constitution, which is an Imperial enactment, and when the Commonwealth came into being it had not in it, as the Commonwealth, and running throughout its territory, the common law of the realm.


Senator Senior - Are you pointing out another weakness of the Constitution?


Senator KEATING - No.


Senator Senior - Well, a shortcoming?


Senator KEATING - No. It leaves us absolutely free to adopt the common law in its entirety with regard to any particular provision or subject, or to leave it untouched. This occurred, I remember very well, in connexion with our

Copyright Bill, and from the very place in which I stand now, Sir Josiah Symon contested the advisability of having inserted a provision which made Statute law of the Commonwealth the common law of England with regard to the rights of an author in unpublished manuscripts. On the principle of Mr. Justice Inglis Clark that the common law does not run in the Commonwealth as a Commonwealth, it is necessary for us to have a provision in this Bill such as is indicated in clause 4 -

The principles of the common law with respect to criminal liability shall, subject to this Act, apply in relation to offences against this Act.

The only reason why I mention the matter now is to query whether that provision goes far enough. It applies the common law only in respect to criminal liability. This measure, as a whole, goes, I think, far beyond criminal liability itself; it goes to the consequences of criminal liability, and it may be a question whether we have gone far enough in applying the general principles of common law in clause 4, when we only apply them in so far as they affect the subject of criminal liability.


Senator Grant - Will you be prepared to add something to that?


Senator KEATING - No, it is too important a clause for, I think, any individual senator to take the responsibility of attempting to amend. I do not say that the clause is inadequate, but I do think it is my duty at this juncture to draw attention to the matter. It may be that there are in the Commonwealth persons of judicial or legal eminence who question Mr. Justice Clark's contention that the common law does not run in the Commonwealth. As I have said on one occasion, from this very place in this chamber Sir Josiah Symon questioned whether it did, and I think it was only after my reading at some length the opinion of Mr. Justice Inglis Clark, as set out in a chapter of . his book, Australian Constitutional Law, that he wavered in his opinion, and thought it was desirable, even from his point of view, for the sake of certainty that the clause in the Copyright Bill should stand. I would not undertake, and I do not think that any private senator should undertake, the re sponsibility of drafting a provision of this kind. It is one to which the Government should have their attention directed, and before the Bill is finally passed here, they should see that all that is desired is expressed in the clause. I notice that in another place the AttorneyGeneral invited suggestions with regard to the Bill. He intimated that he would freely welcome them from the honorable member for Angas and other honorable members who took an interest in the measure. I, therefore, apprehend the Minister in charge of the Bill here will not be averse to receiving suggestions which he must know, after all, are not offered in any captious spirit, but only with the object of perfecting the measure, and giving expression in unmistakable form to the intention of this Parliament. I notice that in another place, at the Committee stage, attention was drawn to several clauses, and to references in the marginal notes which were said not to be exactly accurate. The AttorneyGeneral promised the honorable member for Angas that he would give the fullest consideration to every point he raised. Since seeing the Mansard, report of the proceedings elsewhere I have not been able to go in detail through each one of the matters which were raised by the honorable member for Angas, at, I may say, the express invitation of the AttorneyGeneral. He did not submit amendments, nor did he ask that a clause should be amended there and then, but the Attorney-General indicated that each suggestion would receive the fullest consideration before the measure came to this place - or, at any rate, before it became law. I would like to have the assurance of the Government that the suggestions have been considered, and that where errors have occurred, notably in some instances in the marginal references, they have been rectified. There is another matter on which I would like the Minister to give us some enlightenment - ' I do not say now, but before the Bill is dealt with finally - and that is as to the position which the Commonwealth occupies, or has occupied, with regard to offences and offenders once they have been dealt with by the Courts of the States. Clause 21 of the Bill reads -

If the Court thinks fit to do so, it may release any person convicted of an offence against the law of the Commonwealth, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court that he will be of good behaviour for the term of imprisonment passed upon him, and will during that term comply with such conditions as the Court thinks fit to impose, or may order his release on similar terms after he lias served any. portion of his sentence.

That has always, I takĀ© it, been competent to the Court. In the Post and Telegraph Act we have created offences. Take such an offence as that of interfering with a telephone or telegraph line in a spirit of mischief by throwing stones or shooting miniature rifles, or other means of destroying the insulators. Boys have been in the habit of doing this until at last a State constable has taken proceedings against them in one of the State Courts, and they have been fined. Has the penalty gone into the revenue of the Commonwealth or of the State?


Senator Pearce - That of the Commonwealth.


Senator KEATING - Is the Minister certain of that?


Senator Pearce - Yes.


Senator KEATING - Under what item do the penalties appear in our revenue t


Senator Pearce - Under the AttorneyGeneral's Department, and, if it is a defence matter, the Defence Department.


Senator KEATING - I do not know whether it has been a revenue-yielding item or not, but I would like to learn exactly what the position is. I have only mentioned the matter through seeing clause 21 of this Bill. There is another position which has arisen. An offence has been created under a Commonwealth Act, say, the Post and Telegraph Act or the Customs Act, and a person has been prosecuted in a Court of the State - perhaps in the Supreme Court - and awarded a term of imprisonment. Who has had the right, or has exercised the right where it has been exercised, of remitting or reducing the sentence on that person? I have been informed - I know not with what truth - that in one or two instances where persons were prosecuted to conviction in the Supreme Court of a State for an offence against the Commonwealth, say, in connexion with the Post Office, and a sentence was imposed, they did not serve the whole of the term.


Senator Pearce - I know that in a case of offences against the Defence Act the sentence can only be reduced by the Governor-General.


Senator KEATING - I am not pursuing any specific inquiry now, but before we reach, the final stage of this Bill I would like to know what has been the procedure - if it has come within the province of the State authorities to remit or reduce the sentence on a man who has been convicted in a Court of an offence against the Commonwealth. Because, if that has ever occurred in the past, or it has been possible to occur, why should not steps be taken to avert a recurrence ? It does not follow, because a State Court has imposed a sentence, that the State authorities should be able to review the sentence and reduce or remit it. I do nob say that it has been done, but I have been informed that persons have been released. Some years ago I made an inquiry of a member of the Commonwealth Government who should know about the matter, and it came as a surprise packet of information to him that an offender against a Federal law, against whom he had set the law in motion and who had been convicted by a jury and a Judge of a State Supreme Court, was sentenced and soon afterwards released. I hope that we shall guard against a recurrence of anything of that kind in this Bill. For my own information, and, I think, for the knowledge of members of Parliament and of the public, it is desirable that we should know how we have stood in these matters in the past, and that the public should be assured as to how we are to stand in the future. Senator Gould referred to clause 91 of the Bill, which 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.

My honorable friend quoted the provision for the purpose of pointing out how in-' equitable it was that such an offence should be prosecuted, say, twelve months after the alleged occurrence of it ; but in a territory so vast as that of the Commonwealth, there must be in some of the larger States areas of land belonging to the Commonwealth which are in no way fenced, and it is quite possible that without any laches on the part of the owners, the cattle or stock may get on to the land, and the Commonwealth itself may be largely responsible for the stock trespassing on land vested in the Commonwealth.


Senator Shannon - Say in the Northern Territory.


Senator KEATING - Exactly. The Northern Territory would afford, probably, many opportunities of the kind. I do not take exception to the clause, and I think it is very desirable, for instance, where the boundaries of the Commonwealth land are clearly marked and guarded. There might, in that instance, be every justification for making this an offence.


Senator Senior - Take the transcontinental railway.


Senator KEATING - Yes ; we may have a railway line constructed through long stretches of country and unfenced, and stock may naturally gravitate towards some point of that unfenced territory.


Senator Stewart - There will be no stock there.


Senator KEATING - I am very sorry to hear my honorable friend speak so disparagingly of that country. At any rate there are large areas of Commonwealth property which are unfenced, and the cattle and stock might naturally stray there. It would be very hard to hold a person responsible for the trespass. I suggest to the Minister at this stage that it might be possible, by proclamation or other form, to prescribe from time to time certain areas of the Commonwealth or of any State in respect to which clause 91 would not be enforced. Of course, in regard to urban and metropolitan properties, undoubtedly, the clause is absolutely necessary, but with regard to vast tracts in the hinterland which are not fenced-


Senator Gardiner - Do you not think that the absence of a fence would come under " lawful excuse " ?


Senator KEATING - lt is hard to say what lawful excuse would be, but it might be possible, by proclamation, to exempt certain areas. I am only throwing out a suggestion. It is not desirable that an individual should be prosecuted in a case where there was really no practical common-sense liability on his part, however he might be technically responsible. Senator Gould criticised the Bill from the point of view of the penalties provided for. He has affirmed that the penalties provided by the Bill are of a very drastic character. I do not agree with him. The same argument was used in this chamber in regard to previous legislation, notably in regard to the Customs Act. "When that measure was under consideration, it was pointed out that the penalties provided in it were maximum penalties. Some honorable senators declared that if those penalties were retained great hardship would be inflicted upon offenders. The same argument has been advanced by Senator Gould to-day. But our experience of the working of the Customs Act has shown that there has not been any harsh or rigorous administration, and that the penalties imposed have not been disproportionate to the offences committed. It is just as well, therefore, that the maximum penalties provided by this Bill should be of a severe character. The Courts will thus be afforded an excellent opportunity of marking their sense of discrimination between offences of smaller and greater gravity.


Senator Guy - The provision of such penalties may also have a deterrent effect.


Senator KEATING - Exactly.


Senator Senior - Clause 73 provides that if a Commonwealth officer omits to make a certain entry in a book, he may be imprisoned for seven years.


Senator KEATING - In reply to the honorable senator I would point out that the omission by a Commonwealth officer to make an entry may be fraught with the most serious consequences, not only to the Commonwealth, but to other individuals. An officer may wilfully and deliberately omit to make an entry as a part of a scheme of fraud in which he is engaged, and in such cases the Court should have power to inflict a heavy penalty. If, however, it should transpire that the omission is not the result of design, the offender may be imprisoned for only seven days, or until the rising of the Court.


Senator Senior - There is no minor punishment provided, but only the major punishment.


Senator KEATING - The major punishment is always set out. But the penalty actually inflicted may range from the maximum to the vanishing point, according to the nature of the offence.


Senator Senior - If an officer omits to furnish a report he may be imprisoned for seven years.


Senator KEATING - The consequences of such an omission may be very far-reaching. I repeat that the omission may bo part of a scheme of fraud which is being perpetrated on other individuals and on the Commonwealth. When the Bill enacts seven years' imprisonment as themaximum penalty for this offence, it is not an intimation that the Court must impose that penalty, but rather that for the most serious offence of this character a greater punishment cannot be inflicted. In a case of no importance no penalty may be exacted. An omission may be the result of negligence on the part of an officer rather than of criminality, and the Court will deal with him accordingly. I have looked at the clauses which were being referred to by Senator Gould at the time Senator Senior drew his attention to clause 25. If honorable senators will look at clause 17, they will see that it does seem, to use the vernacular, to be "a little over the odds." It says -

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 with hard labour for one year or longer, 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.

Thus if a man charged with an offence under this Bill has been previously convicted of an offence against the law of a State or of the Commonwealth, and has served a sentence of twelve months' imprisonment or upwards, the maximum penalty to which he may be subjected will be doubled. For example, clause 25 provides -

(1)   Any person who, within the Commonwealth or any Territory -

(a)   instigates any foreigner to make an armed invasion of the Commonwealth or any part of the King's Dominions, or

(b)   assists by any means whatever any public enemy, shall be guilty of an indictable offence, and shall be liable to the punishment of death.

It will thus be seen that if he had previously served a sentence of twelve months or upwards for an offence against the law of a State or of the Common wealth, the maximum penalty which could be inflicted would be double death.


Senator Guy - That is easily imposed.


Senator KEATING - Perhaps it means not only that the offender shall be hanged, but that he shall also be drawn and quartered. Clause 26 provides -

(1)   Any person who knowingly attempts -

(a)   to seduce any person serving in the King's Forces from his duty and allegiance ; or

(b)   to incite any person serving in the King's Forces to commit an act of mutiny, or any traitorous or mutinous act; or

(c)   to incite any person serving in the King's Forces to make or endeavour to make a mutinous assembly, shall be guilty of an indictable offence.

Penalty : Imprisonment for life.

Under that provision if a person had previously served twelve months' imprisonment with hard labour for an offence against the law of a State or of the Commonwealth he would be liable to double imprisonment for life. Of course, we have to recollect that these are maximum penalties, and that the Courts are not likely to enforce them. But it is suggested at least that the phraseology of clause 17 might with advantage be modified. In conclusion, I hope that in Committee the Minister will be able to give us an assurance of the friendly attitude of his colleague in another place towards certain suggestions which were made there. Like Senator Gould, I regard this Bill as one which imposes on the Government the duty of drafting its clauses, and of giving the Senate guidance as to whether or not they are appropriate to the matters dealt with in it. We cannot possibly have recourse to the authorities which have been used in the drafting of the measure. I hope that its effect will be to harmonize and to unify our system of procedure in case of offences against the Commonwealth, as well as to harmonize and unify our system of penalties. I trust that as the result of its enactment there will be a greater approximation throughout the Courts of the States to something like a standard in regard to the offences which they will have power to punish under it. When the Bill becomes law I hope that there will be no occasion for us to follow the precedent which has been established of subsequently introducing amending Bills. The measure represents practically a codification of the existing law, and consequently it ought to be practically insusceptible of amendment for some considerable time at least.







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