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Thursday, 17 November 1960

Mr WHITLAM (Werriwa) (12:30 PM) . - by leave - I move -

In proposed section 24, sub-section (1.). omit "' the punishment of death "', insert " imprisonment for life ".

This is, I think, one of the only two instances in Commonwealth statutes in which the death penalty is provided for, the other being in the Defence Act, where there are qualifications on the application of this penalty. Proposed new section 24 of the principal act will be a re-enactment of the section dealing with treason. It will be an amplification of the law of treason, and apparently anything that is treason in any other English-speaking country is to be dragged into this new section, and we are to impose a blanket penalty of death on conviction for any of these offences which are described as treason.

The consideration of this proposed new section is a proper time for this Parliament io discuss the question of the death penalty. This is a subject which has engaged the attention of several State Parliaments and of the United Kingdom Parliament in recent years. There have been protracted debates in all the chambers of those Parliaments on the question of the death penalty. I hope that on this question at least the Attorney-General will not seek to abridge and truncate the debate. We have already, of course, dealt with another matter - the provisions with respect to habitual criminals - which has engaged the Parliaments of States and of the United Kingdom for many hours at a time. We were given only one hour to consider it. This question of the death penalty has engaged most English-speaking Parliaments for many hours in recent years. We are expected to debate it at the end of the week at 12.30 a.m. I hope that we shall be given adequate time in which to discuss it, although this, of course, is not a proper hour at which to discuss it.

It is difficult to know what is the validity of the death penalty as distinct from the penalty of life imprisonment in respect of treason. If a person commits treason and succeeds, there is never any penalty, of course. As Sir John Harington said -

Treason doth never prosper: what's the reason? For if it prosper, none dare call it treason.

Most of the revolutions in history, including those in British history, have in fact started as treason. If you succeed in your treasonous enterprises, there is no penalty at all. The penalty applies only to those who fail.

Mr Stokes - Like the penalty for suicide!

Mr WHITLAM - Precisely. The penalty is presumably meant to be a deterrent. The death penalty is not the most severe deterrent which has been tried for treason. Previously, the penalty for a person convicted of unsuccessful treason was hanging, drawing and quartering, and I am not sure whether castration was not involved also. This was the law in Australia also, until quite recently. Proceedings for treason have been instituted against only one person in Australia - ex-Major Cousins. He was committed for trial and the State AttorneyGeneral concerned declined to present an indictment. If he had done so and if a jury had convicted ex-Major Cousins, the only penalty which could have been inflicted would have been hanging, drawing and quartering. To that extent, I suppose, we can be thankful for the mercy which is extended here, in that one would be hung outright.

Hanging, or the death penalty, is outmoded in most parts of the world. It has been abolished in most of the Englishspeaking countries. It has been abolished in most of the Scandinavian countries. It has been abolished even in countries such as Portugal which are regarded as being relatively backward, and in most Asian countries. The abolition of the death penalty has never resulted in any increase in the incidence of the crimes for which it was previously imposed. That is, it is not an effective deterrent. If it had been an effective deterrent, we should have noticed, when it was abolished, an increase in the crimes for which it had previously been imposed. No statistics have ever shown an increase in crimes for which there used to be a death penalty and for which there is no longer such a penalty. Furthermore, if the severity or gruesomeness of a penalty deters, we should, of course, go back to the days when we had much more severe penalties for treason and other crimes than we have now.

But there are two other things which ought to impel us to abolish the death penalty now, Sir. The first is that there have been cases in which persons have been convicted of crimes which attracted the death penalty and have suffered that penalty, it later being established, or at least appearing highly probable, that they were not guilty. The sentence, of course, made it impossible to resuscitate or resurrect them, and there is no vindication for them except in the eyes of history. The other reason that ought to prompt us to abolish the death penalty is that capital punishment is just as barbaric and inexcusable in the hands of states as it is in the hands of individuals. As we know, it barbarizes and unsettles the executioners themselves. There have been many instances in which people who have earned their living as executioners - the occupation is a lawful one, of course - have in fact become deranged. Not long ago in Australia's history, executions were carried out in public, and it is to the disgrace of our grandparents that they used to flock to such spectacles. We, of course, are heartily ashamed of the way in which they did so. The Madame Defarge mentality is one of which, happily, we have rid ourselves. The whole community is barbarized by the taking of this short-cut to avenging itself by punishing those who break its codes.

The penalty of life imprisonment is an extraordinarily hard one. Probably, in a sense, it is no mercy for the person who suffers it. Sometimes, it is said that persons who are imprisoned for life would rather have had the death penalty. I doubt it, because I think that everybody hangs to life however miserable he is economically or physically. It is true, of course, that life imprisonment is a much more expensive sentence for the community which imposes it than is the relatively economical penalty of execution. But so long as we execute people, whatever methods we use, we in fact take the short-cut to salving our consciences and to avenging ourselves on individuals.

Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - And we destroy God-given life.

Mr WHITLAM - As I have said, I think it is inhuman and immoral for a state authority, so to speak, itself to take life, just as it is for individuals to do so.

We on this side of the committee believe that the Parliament should expunge from the statute-book the death penalty in one of the two instances in which it occurs in Commonwealth statutes, the other being the Defence Act. That act is not under review now, but the Crimes Act, we are told, is being reviewed and modernized by means of this bill.

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