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Thursday, 9 March 1972
Page: 658


Senator MURPHY (New South WalesLeader of the Opposition) - Let me say this in relation to the main argument that has been advanced-


Senator Cavanagh - Are you replying?


Senator MURPHY - No. This is the Committee stage. I propose to try to confine my remarks to the proposed new sub-clauses we are considering-


Senator Negus - Mr Chairman, I raise a point of order.


The CHAIRMAN (Senator Prowse

Order! What is the point of order?


Senator Negus - I am only an independent. 1 heard what was said just now by Senator James McClelland and I do not think that you, as Chairman, should have accepted it.


The CHAIRMAN - Order! Senator Negus, against whom are you raising a point of order?


Senator Negus - 1 am raising a point of order under standing order 4.18. 1 feel that the remarks passed by Senator James McClelland should be struck from the record and I suggest-


The CHAIRMAN - Order! The honourable senator will resume his seat. A point of order in relation to another senator cannot bc raised against Senator Murphy, who has the call. Therefore, there is no substance in the point of order.


Senator Webster - Well, I will raise a point of order. Although Senator Murphy has the call at the moment, I wish to raise a point of order against a previous speaker, Senator James McClelland, who used offensive words with reference to the Attorney-General (Senator Greenwood). I ask you. Mr Chairman, lo act under stand ing order 41 8. which reads:

No Senator shalluse offensive words against cither House of Parliament or any Member of such House, or of any House of a State Parliafent, or against any Statute, unless for the purpose of moving for its repeal, and all imputations of improper motives and all personal reflections on Members shall be considered highly disorderly. 1 request, Mr Chairman, that you ask for a retraction of the words that Senator James McClelland used*-


The CHAIRMAN - Order! The honourable senator will resume his seat. As the Standing Orders provide that any objection shall be taken at the time when the words are spoken, the honourable senator is quite out of order in raising the matter at this stage.


Senator Hannan - Mr Chairman, speaking on a point of order, I point out that honourable senators on this side of the chamber have been rising continuously so that the objection could be taken as soon as Senator James McClelland finished speaking. By a chain of fortuitous circumstances, they have been precluded from doing so. Therefore, I believe that Senator Webster is in order in raising his objection under standing order 418, and possibly under standing orders 438 and 439, in respect of the words used by Senator James McClelland.


The CHAIRMAN - Order! Senator Greenwood rose in his place and objected, as was his right. No point of order was raised following his speech. Therefore, a point of order on the matter that was before the Committee then cannot be raised at this stage.


Senator Hannan - I wish to pursue the point of order-


Senator Murphy - Mr Chairman, 1 wish to raise a point of order. There is a standing order which says that a senator may not be interrupted while he is on his feet. No point of order has been taken against my speech: so I request that I be allowed to complete my speech. No exception has been taken, by way of a point of order, to anything I have said.


The CHAIRMAN - Order! 1 have ruled 3 times - and I sustain this point of view - that 1 have called Senator Murphy and that no point of order can be raised on another matter.


Senator MURPHY - I return to dealing with the matter the Committee is considering; that is, the matter of the proposed new sub-clauses. The substantial issue that Senator Wright and Senator Greenwood have raised is perhaps as old as the discussion on the abolition of capital punishment; thai is. should certain crimes be excepted when one abolishes capital punishment? This was considered in great depth by the Gowers Commission in Great Britain. This was one of the tasks upon which it entered. The Commission, under the chairmanship of Sir Ernest Gowers, decided, after considering all the foreign experience, that while foreign experience gave support to the case for abolition it did not give support to the case for a grading of murders. The members of the Commission did not reach that conclusion with any relish or without great consideration; but they reached it quite definitely. They wrote:

Our examination of the law and procedure of other countries tends no support to the view that the objections to degrees of murder which we discussed above are only theoretical and academic and may be disproved by the practical experience of those countries where such a system is in force. We began our inquiry with the determination to make every effort to - see whether we could not succeed where so many have failed and discover some method of classifying murders so as to confine the death penalty to the more heinous. We conclude with regret that the object of our quest is chimerical and that it must be abandoned.

If one refers to the book called 'The Homicide Act' by Christopher Hollis - the first thorough examination of how the Homicide Act has been working in practice - ons finds I hat this whole topic has been discussed at great length, lt is impossible to arrive at any logical classification of crimes and say that such and such a crime is so atrocious that it must be accepted and that somehow other crimes can be dealt with by imprisonment only. The author concludes:

Not only is capital punishment not essential for the protection of society,, it has no effect on the murder rate whatsoever. Therefore there can be no question that the solution of all the conundram about responsibility and diminished responsibility, about murders of the first degree and mur.sers of the second degree, is to cut boldly through them by following the greater part of the civilised world into total abolition.

It appears that experience shows that no solution can be found by picking out one crime or the other. If one wants to one can imagine terrible crimes. The purpose of the enactment is not so much to do something for the individual; it is to do something for society. The purpose is that society will set an example by showing that the taking of human life by way of punishment is not to be permitted. Whatever might be done on a battlefield, by way of self-defence or in all these other cases, society is going to show that one shall not punish in this way and thereby help to set the example' to show that human life is so important that people will be deterred by moral suasion from putting bombs on aircraft and from committing acts of an atrocious nature which have been described in this Senate. I ask that the matters be dealt with on the basis of the experience which I have indicated, that is that it is really not possible to distinguish and it is not proper to start to distinguish between crimes. I ask honourable senators to say whether they are in favour of this Bill. This is a matter of punishment. The State has to start to set the example and it should inflict this punishment for no reason whatever.


Senator Webster - Mr Chairman, on 3 occasions you ruled out of order-


The CHAIRMAN (Senator Prowse -

Order! Is the honourable senator rising on a point of order?


Senator Webster - I am rising to a point of order. 1 ask that you give some ruling in relation to the matter which I previously raised. When Senator James McClelland made 2 assertions against the AttorneyGeneral they were quite clear in their area. I believe that standing order 418 deals with the use of offensive words. I did not take objection to the use of the words at the time because I believed that it was your perogative to protect the AttorneyGeneral. Standing order 418 states:

No senator shall use offensive words . . .all personal reflections on members shall be considered highly disorderly.

I believe that in the context of those comments which were made it was not for anybody to rise to a point of order but objection should have been taken by the Chair to the comments which were made by Senator James McClelland. No comments could be considered more disorderly in that context. Mr Chairman, perhaps your reliance was placed on standing order 424 which states:

Every such objection must be taken at the time when such words are used, and will not be afterwards entertained.

I would agree with your suggestion if a senator were to rise and take objection to the words. But the point is that standing order 424 ties up with standing order 423 which states:

When any Senator objects to words used in Debate, and desires them to be taken down, the President shall direct them to be taken down by the Clerk accordingly . . .

Standing order 424 then suggests that the objection must be taken down at that time. Mr Chairman, I suggest that no words which could be used in this Senate could be more highly objectionable than those used by Senator James McClelland. I ask you, Sir, to again review your ruling and under standing order 418 declare that the words used by Senator James McClelland were offensive words and that they personally reflect on a member of this Senate. I ask that you request Senator James McClelland to apologise for his remarks.


The CHAIRMAN - I cannot sustain the point of order. It has been the practice in this Senate for objection to be taken at the time when the words are used. Senator Greenwood, as was his right, chose to rise and object. He did no ask for an apology. I find nothing in the practice of the Senate to sustain any point of order at this time subsequent to the occasion. If Senator james McClelland desires to offer an apology following the objection which has been raised by Senator Greenwood I feel that that action may improve the tenor of this debate. If that request had come from Senator Greenwood the position would have been clear and my action would have been prompt.


Senator Hannan - Mr Chairman, I merely ask whether' your attention has been drawn to standing orders 438 and 439 In which no time limit is mentioned. There is no suggestion that the objection must be taken al the time.


Senator Poke - Are you reflecting on the Chairman's ruling?


Senator Hannan - I am asking the Chairman a question. I am not laying down the law as honourable senators on the other side of the chamber attempt to do. I ask. Mr Chairman, whether your attention has been directed to paragraph (c) of standing order 438.


The CHAIRMAN - 1 find no provision under which you can draw my attention to this mailer. If you are rising to a point of order I hope that you will state it.


Senator Hannan - I state that standing order 438 does not require any objection to objectionable words to be taken at the time they are used. I think it will be generally agreed that the words used were extremely objectionable. I feel that Senator James McClelland probably used them in the heat of debate and that upon a mature consideration if he is asked he will probably withdraw the words. I merely say to you, Mr Chairman, that Senator James McClelland should be given the opportunity of withdrawing the words. If he will not I propose to move that action be taken under standing order 439.

Iiic CHAIRMAN - I cannot sustain (hat point of order.


Senator Cavanagh - Mr Chairman. I have-


Senator Murphy - The Chairman has said that he does not sustain the point of order.


Senator Cavanagh - 1 think that a few words have to be said.


The CHAIRMAN - Senator Cavanagh, are you raising a point of order?


Senator Cavanagh - Yes.


The CHAIRMAN - What is the point of order?


Senator Cavanagh - My point of order is that there has been a deliberate attempt in this chamber to obstruct the business of the Senate. We have just seen this attempt in relation to this matter and it is a breach of standing order 438. Senator Greenwood who took objection to Senator James McClelland's remark made a personal explanation and he was quite satisfied with his personal explanation. Therefore the matter should lie.


The CHAIRMAN - I find no substance in the point of order.







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