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Wednesday, 28 October 1914

Senator O'KEEFE (Tasmania) . - When I spoke earlier I thought, judging from Senator Senior's objections to the clause, that he himself would move the omission of the words " or of a State," and, as the argument has developed, he has found additional objections. In fact, anybody who dares to say a word in favour of the retention of the clause seems likely to be put on a level with what is known as a "hanging Judge." I have no more desire than any other honorable senator to be unduly severe towards unfortunates who come before the Courts, but there must have been some good reason for putting the clause in the Bill, although I am going to vote for the omission of the words " or of a State," because of the anomaly involved.

Senator Mullan - You will be creating a worse anomaly.

Senator O'KEEFE - I know the honorable senator is strongly opposed to the clause altogether; but suppose the case of a Customs official acting in collusion with an importer, and making a fair amount of money out of the Com monwealth by committing an offence. He is brought before the Court, and sentenced to the maximum penalty, because of the gravity of his offence. The man has put a fair amount of money away before being found out, and serves the maximum penalty. Later on we may suppose that he is again in a position in the Commonwealth Service where he has an opportunity of committing a similar offence. If the clause is struck out altogether, it will not be possible for the Judge to inflict any greater punishment than for the first offence, and it will pay him to run the risk of undergoing a second term. The penalty may be only twelve months' imprisonment, as indicated by Senator Gardiner.

Senator Senior - Your argument is that every penalty will be the maximum.

Senator O'KEEFE - My argument is that these things have always to be left to the discretion of the Judge. The very term " maximum " shows that. It does not follow that the maximum set out in the Bill will always be imposed, but I am supposing a case where the maximum penalty is very small. If the clause is left as it stands, it is not mandatory on the Judge to impose double the maximum penalty in the case of a second offence, but is left to his discretion. The discretionary powers of the Judges are practically unlimited. We shall be going too far if we strike the clause out altogether. It will be made quite safe and reasonable if we carry Senator Grant's amendment. If those words are struck out, I shall vote for the retention of the clause as amended.

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