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Wednesday, 28 October 1914

Senator GARDINER (New South Wales) (Vice-President of the Executive Council) . - I did not intend to speak again on the clause. I take no exception to members of the Opposition having a field day on this Bill, but when the opposition comes from those of our own household, it is indeed hard to bear. Senator McDougall has made a reference to the course which I would have followed if this measure had been before us last session, but he has overlooked the fact that my attack would have been as a member of the Opposition upon the Government of the day, and not as a loyal supporter upon the Government I was returned to support. The honorable senator has referred to clause 17 as a drastic clause for dealing with strikes, but it has nothing whatever to do with strikes.

Senator McDougall - It might have.

Senator GARDINER - Honorable senators have referred to the drastic penalties provided for in the Bill. It would be better for them to read the Bill. They will find that for one offence after another a penalty of only one year's imprisonment is provided. Do honorable senators desire the Bill to provide that the penalty to be imposed upon a second offender shall be no greater than that imposed for a first offence? Do honorable senators desire that a man who deliberately commits a second offence - it may be within a very brief period of his release from imprisonment for his first offence - shall be liable only to the same penalty as a first offender ? Honorable senators speak as though the measure dealt only with penalties for long terms. The penalty for one offence is seven years' imprisonment, for another two years' imprisonment, for a third two years' imprisonment, and so on. And I remind honorable senators that if they reject this easy method of providing in one clause once and for all for second offenders, it will be necessary to introduce a measure in which provision will be made for an increased penalty for every second offence.

Senator Senior - That would be better than to deal with the matter wrongly in the first instance.

Senator GARDINER - It would be better if the Bill made provision for what Senator Senior has contended, and compelled a higher penalty in the case of every second offender. I have to thank Senator Gould for putting the matter clearly before the Committee. The honorable senator went out of his way to assist me in connexion with this Bill by pointing out that honorable senators who insisted that the clause makes the penalty higher were labouring under a mistake. It does not. It simply makes the maximum higher if the maximum penalty is imposed. If the clause is rejected the penalty for a second offence will be left exactly the same as for a first offence. Without this clause a man who, after serving twelve months' imprisonment for an offence, robbed the Commonwealth through the Customs of a considerable amount, could be given no additional punishment as a second offender, and that might be a greater injustice than any that could arise under the clause in the way honorable senators have suggested. I wish honorable senators to understand clearly that where we are dealing with confirmed criminals we must make provision for severe penalties. The Bill is not designed to deal with strikes or strikers, to which Senator McDougall referred, in any way whatever.

Senator McDougall - The clause gives the opportunity. It says, " or of a State."

Senator GARDINER - I have offered to strike out those words, but no one has accepted my offer.

Senator McDougall - Move their omission yourself.

Senator GARDINER - I do not propose to do so, because I am satisfied with the Bill as it stands; but if any other honorable senator does not like these words, I am prepared to meet him. I shall not agree, however, to strike out the whole clause, because that might mean that wherever a penalty is fixed for a first offence, we should have to put in a new clause, providing for an increased penalty for a second offence, if the Committee thinks an increased penalty is necessary.

Senator Lt Colonel Sir Albert Gould - How do the States manage with regard to second offences?

Senator GARDINER - So far as the State Acts are concerned, their 'maximum penalty, in almost every case, is more drastic than ours. If the maximum penalty had to be inflicted in every instance, there would be something in the arguments of Senator Senior and others; but we are proposing extra punishment for the man who offends a second time.

Senator Mullan - Your argument would mean that the maximum is always going to be imposed in the first case.

Senator GARDINER - No doubt, where the penalty is imprisonment for only twelve months, the full term will always be given, because offences involving less than twelve months' imprisonment will be dealt with under summary jurisdiction. The omission of this clause might seriously interfere with the drafting of the whole measure. A man sentenced to twelve months' imprisonment for a first offence would be liable to only twelve months' imprisonment for a second offence. Senator Barker objects bo the clause simply because it is drastic, and justifies himself by referring to clause 18, which is immensely more drastic. If the Committee follow his line of argument, they will also strike out clause 18, and so on, until there is nothing left of the Bill. My view is that a man who offends twice should be liable to a greater penalty than the man who offends only once.

Senator Bakhap - If there is a parity in the offence. The offences may not be of the same character.

Senator GARDINER - We are leaving that to the Judge to decide. We are not laying down any hard-and-fast rule, but are simply setting out the principle that an individual found guilty on two occasions should rightly be subjected to a higher penalty than the individual who is found guilty on one. The question of the difference between the offences we leave, as all matters of that kind must be left, to the common sense of those who administer the laws. It is a serious thing to strike out a clause like this. We should aim at making our laws as readable and easily understandable as possible. If we strike out a clause because we are making a short-cut somewhere else, and have to draft something fresh to take its place when we come to the other clause, we shall not be making much headway.

Senator Turley - That may not be necessary.

Senator GARDINER - If not, we shall have to leave a blank. We must have a distinction between the man who offends the first time and the man who finds it profitable to offend. I am prepared to accept an amendment to strike out the objectionable words, "or of a State," and I hope that, with that amendment, the Committee will accept the clause as it stands.

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