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Thursday, 9 March 1972
Page: 652


The CHAIRMAN - There being no objection, that course will be adopted.


Senator GREENWOOD - I think it is apparent that what is involved in subclause (2.) raises problems of a different character to the questions which are raised in sub-clauses (3.) and (4.) of the amendments that Senator Murphy has proposed to clause (2.). For my part, I speak against sub-clause (2.) only. I appreciate that, in the acceptance of the principle which the Senate has given by granting the second reading, it has broadly agreed to the principle that the death penalty should be abolished. But, as far as I am concerned, I do not believe that that decision should have the widespread application that is contemplated by the language of sub-clause (2.)

That sub-clause would indicate that the Act: . . applies in relation to, and in relation to offences under the laws of the Commonwealth and the Territories of the Commonwealth, and, to the extent to which the powers of the Parliament permit, in relation to, and in relation to offences under, Imperial Acts.

Insofar as there is an offence of murder for which the penalty is death and an offence of treason for which the penalty is death, being laws of the Commonwealth, this Act will mean that the death penalty will no longer apply. But it extends further. It means that if people cheerfully put a bomb on an aircraft with a view to personal gain or for any other reason and they destroy people who are travelling on that aircraft, they may do so with the acceptance that, whatever loss of life they may cause to others, they do it without peril to their own lives.

But, more importantly, what it does mean is that that which has always been the accepted rule with regard to our defence forces will be set at nought in an area where, distressing as it must be to those who have experienced actual warfare, which I have not but which I must acknowledge with feeling from what I have heard and read, with death everywhere apparent," those who would desert their colleagues and those who would traitorously give away their own side to an enemy, may condemn their colleagues to death but in terms of their own crime they will be subjected merely to life imprisonment.

This to me is quite an incredible attitude. I had thought that we might have had an examination of this matter by the Senate Standing Committee on Constitutional and Legal Affairs following the vogue of Senate committees inquiring into all sorts of matters. Unfortunately - and I can say only that I regret it - the Senate Standing Committee to which this matter was referred with, I would have thought, a quite clear indication from the Senate as to what it was intended to do chose on its own initiative to ignore the Senate's request and to report in the way that it has reported without giving any consideration to these matters. I think it is a pity because it indicates that Senate committees are not quite what they could be. I sense that a great opportunity was offered, but it was ignored.

In the result, we come to this debate without the assistance of a study m depth and an examination of the very real problems that the deterrent principle in punishment involves, without any sense of understanding of whether there might be a death penalty according to appropriate offences, and we must consider this matter in terms of the traditional political arguments which were the vogue 20 or 30 years ago, and must do our best to make a judgment. I do not think that is worthy of the Senate. I do not think it is worthy of the positions that we hold. Still, it is something which we must undertake as best we can.

I do not believe that those of us on this side of the chamber who feel strongly about the matter should willingly, and without some protest, accept a position that in our defence forces people may engage in treason and that they may engage in traitorous conduct in the face of the enemy and, in those circumstances, imperil the lives or worse of their colleagues, and do so knowing that they do not face the death penalty in the face of the enemy but that they will suffer life imprisonment. This is what is involved in sub-clause (2.) because to the extent to which the powers of the Parliament permit, this law is to apply to offences under Imperial Acts. If we look at the report of the Committee we see that, in the one area of activity in which it concerned itself, it did look at - I presume that it looked at - and give consideration to the views of the Department of Defence with regard to the laws which impose the death penalty within the responsibility of the Department of Defence.

It is apparent that the Defence Act creates certain offences by way of adapting to the purposes of Australian defence the provisions of the Naval Discipline Act of the United Kingdom and the Army Act of the United Kingdom. The Naval Discipline Act of the United Kingdom by section 3 defines 'traitorous conduct' as: . . failure to obey, orders when preparing for or in action with intent to assist the enemy.

It does so also by section 4 which states:

.   . the wilful obstruction of any action or service with intent to assist the enemy.

And it does so by section 5 which provides:

.   . communicating with, supplying or serving with the enemy with intent to assist the enemy.

That type of traitorous conduct has previously carried the death penalty. By subclause (2.) of the Bill, such conduct no longer will carry the death penalty. I simply say that I oppose it.

The offence of mutiny is denned in section 9 which provides:

.   . mutiny in connection with operations against the enemy and the failure to use the utmost endeavours to suppress, prevent or report without delay, with intent to assist the enemy.

At one stage a conviction for that offence incurred the death penalty. If the clause is carried it no longer will. Under the Army Act there was traitorous conduct in the abandoning or delivering up of a post or place shamefully and traitorously, by the casting away of arms or ammunition in the presence of the enemy and doing it shame.fully by communication with the enemy treacherously or through cowardice and traitorously by the assistance of the enemy with supplies of arms and knowingly harbouring the enemy and by the serving with or voluntarily aiding the enemy when a prisoner of war and knowingly doing any act when on active service calculated to imperil the success of Her Majesty's forces. That constituted traitorous conduct under the Army Act and conviction for any of those breaches carried the death penalty. It no longer will.

I believe that if we hold the view that the defence of our country is of paramount importance - I know that a majority of the Committee takes that view - the least we should be prepared to do is to maintain our support for those who bear arms and risk their lives. For them to be deserted by persons who can cavalierly do so knowing that, whatever loss they might cause to their colleagues, at worst they may be imprisoned for life is, to me, an incredible proposition. I recognise that the Senate has indicated a view on this subject. I regret that the Senate - philosophically and without, I think, an appreciation of the particular issues - has committed itself to a course which I do not believe redounds to the credit of the Senate. I speak as I do because I feel that this is an area in which we should show some concern for the people who carry arms and risk their lives in the service of this country. I think that they should be supported. To remove the death penalty for the types of offences which I have indicated, to me, is not supporting our defence forces. I oppose the clause.







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