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Thursday, 9 March 1972
Page: 650

Senator MURPHY (New South WalesLeader of the Opposition) - Some amendments to the Bill have been circulated in my name. The first amendment relates to clause 2. I move:

At end of clause, add the following sub-clauses:

(2)   Subject to the next succeeding sub-section, this Act applies in relation to, and in relation to offences under, the laws of the Commonwealth and of the Territories of the Commonwealth, and, to the extent to which the powers of the Parliament permit, in relation to, and in relation to offences under, Imperial Acts.

(3)   This Act does not apply in relation to, or in relation to offences under, the laws in force in the Territory of Papua or the Territory of New Guinea, other than Acts of the Parliament, or Imperial Acts, as extending to either or both of those Territories of their own force.

(4)   This Act applies in relation to offences committed before, on or after the date of commencement of this Act, including offences in respect of which proceedings are pending at that date, and if, on that date, a person is under sentence of death for an offence in relation to which this Act applies, the sentence has effect as if it were a sentence of imprisonment for life.

Proposed sub-clause (2) seeks the enactment to have the widest scope, subject to what appears later. Proposed sub-clause (3) provides in effect that the Territory of Papua New Guinea be allowed to do what it thinks should be done in regard to its own laws. It may wish to take its own course. We know that this matter has been the subject of some consideration in the Territory. The information available to the Standing Committee on Constitutional and Legal Affairs when it considered this matter was that 2 Bills of opposite intention have been introduced in regard to the matter. This provision would leave it entirely to the Territory to decide what it thinks it should do. In relation to proposed subclause (4) I would point out that it is not known when this legislation will come into effect. So, if at the time that it comes into effect, a sentence of death has already been passed, the legislation is to operate in relation to that sentence.

These new sub-clauses are intended to deal with some of the questions raised in the report of the Standing Committee.

That Committee suggested that if the Bill received a second reading consideration should be given in the Committee of the Whole to the following matters: The possible effect of existing Imperial laws; the application of the proposed law to proceedings pending; the question, if the word offence' is used in the proposed law, of the extent to which this would have effect in relation to the defence forces; and the effect of the proposed law on existing and future laws of the various Territories of the Commonwealth. The sub-clauses I have sought to include in the Bill by way of an amendment are intended to deal with those matters.

Perhaps I should expand a little on this matter. The Standing Committee referred to the possible effect of existing Imperial laws. The purpose of the amendments is to make it clear that the Bill extends to any Imperial Acts that impose the death penalty insofar as it is within the power of the Commonwealth to effect those Acts under the Statute of Westminster. The Standing Committee referred to the matter of the application of the proposed law to proceedings pending. The amendments would make it clear that the Bill will apply to offences committed before its commencement, including those in which proceedings are pending, and would also apply in the unlikely - or perhaps not so unlikely - event of a person being under sentence of death at the commencement of the Act. The Standing Committee referred to the question of whether the word 'offence' would have effect in relation to members of the defence forces. The intention of the amendments is that the word 'offences' in the amendments would be of wide import and not in any way intended to be taken narrowly and that it would not be taken narrowly by any court.

Senator Wright - The word 'offence' appears in the Bill as well as in the amendment. How does the word 'offences' in the amendments clarify that issue?

Senator MURPHY - If I may just go on, the word 'offences' insofar as the defence forces are concerned is dealt with in section 96 of the Defence Act, which makes certain provisions in regard to trial by a court martial if the offence charged be punishable by death. So that the word offences', on the information that has been given to me and which 1 accept, would be appropriate to deal with such a matter that is dealt with under military law.

The Committee referred to the effect of the proposed law on existing and future law of various Territories of the Commonwealth and made special reference to Papua New Guinea. As regards Papua New Guinea, the amendments would apply the Act to offences under Commonwealth Acts and Imperial Acts extending to the Territories but not to offences under local laws of the Territories. The amendments however will apply the Act to all laws of the Northern Territory and the Australian Capital Territory. As far as future ordinances of the internal territories are concerned, any ordinances that attempt to impose the death penalty will be invalid as being inconsistent with clause 3 of the Bill, it being a well accepted principle that an ordinance cannot be inconsistent with a Commonwealth Act. There are some other matters dealt with, in the Committee's report, but they will arise in later matters which are dealt with. Therefore, 1 put these proposals to the Committee.

May I say this: An attempt has been made to take away any possible ground of complaint. I do not wish to argue about the merits of the Bil) as it stood. It is my view, and it is not only view, that the Bill as it stood was perfectly all right and would have operated to achieve the desi.-ed effect. Indeed, it passed through the Senate previously without any adverse comment being made on it although there was very great expert opinion available to deal with it. But I have taken the view that this matter should not be open to attack on the basis of any technicalities. So, 1 have endeavoured - I have sought the assistance of those who are expert in these masters, the Parliamentary Counsel - to draft amendments to meet any possible objection on the technicalities of the matter, lt is on that basis that 1 present these amendments to the Committee. I have moved the amendments in relation to clause 2 and I ask the Committee to accept them.

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