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Thursday, 9 March 1972
Page: 653

Senator WRIGHT (Tasmania) (Minister for Works) - In the absence of anyone rising to speak, I wish not to be silent about this clause. Whatever may be said about the manner in which the debate is proceeded with, I for one will not yield on an occasion like this without there being a full debate such as should be characteristic of the Committee on a matter of such grave significance. Recognising that the general principle of the Bill has been endorsed by the second reading of the Death Penalty Abolition Bill, I want the Committee of the Whole to give consideration to that part of the report that was presented to the Senate that touches upon the second amendment moved by Senator Murphy. If the amendment is accepted by the Committee there will be a wholesale repeal of all the provisions to which I wish the Committee to turn. I refer to page 2 of the letter which was sent to the Standing Committee on Constitutional and Legal Affairs by the Department of Defence on 9th November 1971.

Senator Webster - If the amendment is accepted there will not be a wholesale repeal. The Minister said that there will be a wholesale repeal if the amendment is accepted by the Committee.

Senator WRIGHT - I am not sure that I understand my colleague. What I meant to convey was that there will be a wholesale repeal of those provisions that apply to the offences to which I am about to refer and for which there is the death penalty. I wish I could share the understanding of the honourable senator. Perhaps he will make clear whether he is in agreement or disagreement with me. Page. 2 of the letter to which I have referred will suffice, for a Committee discussion, to indicate the nature of the offences. Paragraph 8 of the letter states:

Under this legislation the offences carrying the death penalty are:

Section 4: Traitorously delivering up to the enemy a garrison, fortress, post or guard or traitorous correspondence with the enemy;

Section 7: Mutiny or failure to suppress mutiny. 1 ask: In what effective manner can the law be enforced in a field in which life or death is the order of the day when one or a minority traitorously delivers up to the enemy a garrison, fortress, post or guard or when one has traitorous correspondence with the enemy? A person may inform the enemy about the dispatch of troops by sea or aircraft in order to enable the enemy to shoot down the aircraft or to sink the ships so that the troops will drown. Paragraph 1 1 of the letter states:

Under sections 4, 6 and 7 of the latter Act-

That is the Air Force Act of the United Kingdom - numerous offences committed in the face of the enemy, or treacherously or involving mutiny or sedition are made the subject of the death penalty.

In my opinion, that is sufficient to call attention to the fact that in regard to offences under military law - whatever may be the merit for repealing the death sentence under civil law - the repeal of the death penalty would cause a subversion of the strength of the armed forces. I would have thought that the repeal of the death penalty would have had a corroding influence on that spirit which is the basis of the strength which armed forces exert when fighting the enemy. It would be a most unfortunate step if the Senate saw its way clear to repeal that part of those provisions which provide the death penalty.

I can understand, in the case of a single murder and in some cases of treason, the modern thinking that the application of the death penalty is inappropriate. It is argued that, in modern days, the death penalty should not apply to the universality of offences to which by the letter of the law it is capable of application. The prerogative of mercy has been exercised in this field with what I would think was fairly general satisfaction to the sense of justice of the whole community. At the second reading stage I submitted a case in support of the proposition that in individual cases the death penalty should be reserved for the ultimate crime. In this instance I am focusing attention upon the actual constitution of the defence forces and upon the enforcement of discipline, firstly from the point of view of physical confrontation with the enemy and secondly from the point of view of traitorous correspondence with the enemy. The man who can leave his unit and, due to an evil influence, put himself in the position of communicating with the enemy and of informing the enemy of the dispatch of aircraft or the departure of troop shipments and thereby enable the enemy to cause death to his comrades who have been fighting the enemy in reliance upon mutual loyalty, to my way of thinking, should be punished.

The Senate has not given sufficient consideration to that situation to warrant a positive acceptance of the clause. In the second place I put to the Committee the proposition that once we consider it, it has to be rejected.

Senator Byrne - Is the honourable senator considering this penalty as a deterrent or as a punitive measure?

Senator WRIGHT - As one of those provisions of the law which make the fabric of the law and ordinary men's understanding of their mutual obligations accepted as a matter of common decency among members of the Armed Forces. Secondly, of course, it is a deterrent. In any unit there are men who are good, bad and indifferent. One has only to see a film depicting a wartime story to see the villain, the trator and the con man, and when the con man comes under the influence of the enemy he becomes the traitor. We have achieved something if one man is deterred by the historic provision that we have had until now, where the penalty is the extreme penalty. I say to honourable senators, not for the first time, but now in about my 22nd or 23rd year in this Parliament, and still persevering - not always in a cause in which 1 know I shall win, but, as heretofore, persevering in a cause in which I believe there is justice - that we cast a great deal of disadvantage and a great deal of injustice on the Armed Forces if we relieve the traitor who commits the offences that I have mentioned form the supreme penalty simply to gratify a sociological generalisation. 1 would say that if we accepted that the man who traitorously, with 4 or 5 others or alone, delivers his own post to the enemy or corresponds with the enemy to enable a ship to be torpoeded within a couple of hours of its departure, at a time when we have sent troops to the battle line and have required our garrisons to face the enemy, should not be subject to such a rigorous provision of the law as the penalty of death, we. should surrender our right to be defended.

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