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Wednesday, 28 October 1914

Senator KEATING (Tasmania) . - To get back to clause 17, it appears, as I said before, to be taken from the Queensland Criminal Code, because the marginal note is " Cf. Qd. C.C., s. 630." I have looked up section 630 of the Queensland Code, and it has no provision for a double penalty. It deals with only a question of procedure when a man is charged with a second offence. It reads -

The proceedings upon an indictment for committing an offence after a previous conviction, or convictions, are required 'to be as follows, that is to say : -

(1)   The accused person is, in the first instance, to be called upon to plead to so much only of the indictment as charges the subsequent offence :

(2)   If he pleads any plea which raises an issue to be tried by a jury, the jury are to be charged in the first instance to inquire concerning the subsequent offence only :

(3)   If he pleads guilty, or if, upon trial, he is convicted of the subsequent offence, he is then, and not before, to be asked whether he had been previously convicted as alleged in the indictment :

(4)   If he answers that he had been so previously convicted, the Court may proceed to pass sentence upon him accordingly :

(5)   If he denies that he had been so previously convicted, or will not answer directly to the question, the jury are then to be charged to inquire concerning the previous conviction or convictions; and in that case it is not necessary that the jury should be sworn afresh, but the oath already taken by them is deemed to extend to such last-mentioned inquiry.

Provided that, if on the trial of a person charged with a subsequent offence he offers evidence of his good character, the Crown may, in answer thereto, and before any verdict is given, offer evidence of his conviction of the previous offence or offences, and in that case the jury are required to inquire concerning the previous conviction or convictions at the same time that they inquire concerning the subsequent offence..

In the section there is no reference to punishment. The marginal note to clause 17 is entirely misleading. In my secondreading speech I asked the Minister to give us an assurance that the matters raised in another place have been dealt with. Mr. Groom, member for Darling Downs, drew attention to the fact that the marginal note to this clause was misleading. Yet it comes up to the Senate, and any one of us in the hurry and the urgency might imagine that there was a justification, as well as a precedent, for the clause. So far as I now know, there is absolutely none anywhere. As regards providing a double penalty, although this is a maximum penalty, it is an entirely novel proposition - a departure from all existing systems of jurisprudence. In my opinion, the range of punishment which, is open to Judges under penalties is extensive enough to give them every opportunity to make a differentiation in the penalty they impose for a second offence. I sincerely hope that the clause will not pass, as there is no justification or need for it.- It will lead to consequences which will be very anomalous. It will excite in the minds of the people a sense of the disparity of decisions, which can only lead to disregard for the law generally, and that is a tiling which none of us wishes to see cultivated in the community.

Senator Lt.-Colonel Sir ALBERTGOULD (New South Wales) [5.53].- I notice that the Vice-President of the Executive Council alluded to clause 80, which relates to the offence of a person communicating sketches and plans to an enemy, for which the penalty of imprisonment for two years is provided. But I am under the impression that the provision to which Senator Senior referred was clause Si.

Senator Gardiner - He said clause 80, and I turned it up.

Senator Lt Colonel Sir ALBERT GOULD - Clause 84 provides that any person who in the Commonwealth or in any Territory takes any unlawful soundings, or makes any record of any unlawful soundings, shall be guilty of an indictable offence, for which the penalty is imprisonment for two years. Surely the Minister will see that the taking of unlawful soundings may occur most inadvertently. It is provided in sub-clause 2 that for the purposes of the clause all soundings taken in the territorial waters of the Commonwealth or any Territory shall be deemed to be unlawful unless they were taken in certain circumstances. Yet a penalty may be inflicted where the offence is committed inadvertently. There is no comparison between the offence dealt with in clause 80 and the offence dealt with in clause 84. As regards the penalty for the unlawful communication of secret information, which is provided for in clause 80, if the maximum of two years' imprisonment is considered insufficient, by all means increase the term. I am prepared to increase the penalties to a marked degree to meet the cases of traitors or persons who want to do an injury to the Commonwealth. The Minister need not be afraid that honorable senators on this side would object to increasing the punishment for such offences, because our whole existence is dependent upon the honesty and trustworthiness of our public servants.

Senator Gardiner - We will see that when Ave go to vote on this clause.

Senator Lt Colonel Sir ALBERT GOULD - The Minister wants to cajole us into accepting a clause which is foreign to everything that is fair, honest, and just. The conviction of a man for having taken unlawful soundings will carry a liability to the infliction of double the penalty for some other offence. If a man has committed the offence of burglary, forgery, or rape, or any of the more heinous offences, that is to be put on one side, but if he has committed what is a comparatively venial or small offence, that is to be haled up against him, and is to justify the Judge in giving him double the sentence which otherwise he might award. If honorable senators will only exercise their common sense, they will see that it is merely playing with the question to say we will cut out the reference to any conviction under the State laws, but that any conviction for an offence under Federal law will render the man liable to double punishment for a subsequent offence. I do urge honorable senators to have some regard for the credit of the Commonwealth and of Commonwealth legislation. We ought not to allow it to be said that, in regard to the punishment of offences, this is the most vindictive legislative body in Australia. Let us make sure that we can secure the conviction of offenders by declaring that the punishment prescribed under this Bill shall not be inadequate to the offences committed. I shall vote against the amendment, and also against the clause in its entirety. The VicePresident of the Executive Council is smiling. I can just imagine the position which he would have taken up had another Government been in power and had this clause been introduced by Senator Millen. Who would have sounded the paean of battle against it more strongly than would Senator Gardiner?

Senator O'Keefe - Who would have defended it more strenuously than Senator Gould ? o

Senator Lt Colonel Sir ALBERT GOULD - Honorable senators know that I have not given way on matters of this kind. I repeat that no man would have been more strenuous in his opposition to such a proposal than would the VicePresident of the Executive Council. All his training proclaims his anxiety to stand up against the vindictive punishment of any offender. I do hope that honorable senators will regard this question from the stand-point of what is fair and reasonable.

Senator de Largie - What would have been the honorable senator's attitude if he had occupied a seat upon this side of the chamber?

Senator Lt Colonel Sir ALBERT GOULD - I would have suggested to the Government the desirableness of withdrawing the clause.

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