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Wednesday, 28 October 1914

Senator MULLAN (Queensland) . - The Commonwealth has been in existence for fourteen years, and we are now told that this Bill is urgently required because of the war. It is all very fine for the Vice-President of the Executive Council to use the war as a reason for hasty legislation of a very doubtful character. The Bill does not deal with matters relating to the war alone, but with all kinds of offences. For the stealing of a mail bag from the Postmaster-General, or for allowing a cow to trespass-

Senator Gardiner - Surely a penalty of £5 is not too much for that.

Senator Turley - But it may be seven years' imprisonment.

Senator MULLAN - It may be anything. We do not wish to leave it within the power of a Judge to do something that is unreasonable.

Senator Keating - Not merely within his power, but within his duty.

Senator MULLAN - Exactly. Bad as the clause was before it was amended, it is very much worse now, because it discriminates between offences against the Commonwealth and offences against a State. If a man embezzles the funds of a State and is brought before the Commonwealth Court for a second offence, the Court cannot take into consideration the fact that he has been previously convicted. On the other hand, a person who commits a second offence against the Commonwealth is to be visited with double punishment. His second offence is presumed to be of double the gravity of his first offence. It is all very well for the VicePresident of the Executive Council to say that a Judge may impose a lighter sentence on the second occasion than upon the first. The fact remains that under this clause we practically direct the Judge to inflict double the penalty that is prescribed for the first offence. I think that the clause goes beyond all reason, and I take strong exception to the Bill misleading the Committee.

Senator Gardiner - If the honorable senator will read the marginal note he will see that it does not mislead. The word used in the marginal note is " compare."

Senator MULLAN - When we compare the clause with the Queensland Code we find that there is a substantial difference between the two. Under the Queensland Code cognisance is taken of the fact that a man has been previously convicted of a similar offence; but under this clause we practically direct the Judge to inflict double the penalty that would be in flicted for the first offence. The VicePresident of the Executive Council has affirmed that, in some cases, the maximum punishment is so low that where a man committed a second offence a difficulty would be experienced. But that difficulty can be overcome by increasing the maximum penalty in those cases in which it is declared to be one year's imprisonment. By enacting this clause we shall be defeating the ends of justice. If a man is liable to five years' imprisonment for a first offence and to double that term for a second offence, a jury will probably hesitate to convict him a second time. This is not a party measure. While the Vice-President of the Executive Council is justified in defending his adopted child he is not warranted in taking up a party attitude.

Senator Gardiner - I have offered to accept any reasonable amendment.

Senator MULLAN - All the arguments advanced have been in favour of wiping out the clause altogether.

Senator Gardiner - The Bill will have to be redrafted then.

Senator MULLAN - No. The chief reason urged in opposition to excising the clause is that in some instances a Judge would not be able to increase the penalty in the case of a second offence. But, as I have already pointed out, that difficulty can easily be overcome by increasing the maximum penalty in cases in which one year's imprisonment is prescribed.

Senator Gardiner - And in cases in which two years' imprisonment is prescribed. There is page after page of such cases.

Senator MULLAN - Apparently the Vice-President of the Executive Council assumes that the Judge will impose a maximum penalty in every case.

Senator Gardiner - I do not assume that he will do so in any except a very bad case.

Senator MULLAN - The honorable senator appears to assume that he will. As a matter of fact, it is only in rare cases that the Judge will inflict the maximum penalty. I hope that the Committee will deal with the Bill upon its merits and not allow this clause to be whipped through at the behest of the Government when we recognise that it embodies a wrong principle.

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