The Argus (Melbourne, Vic. : 1848 – 1957)
Wednesday 10 May 1871
On page 6
TUESDAY, MAY 9.
CRIMINAL LAW AND PRACTICE AMENDMENT BILL.
Mr. WRIXON, in moving tho second reading of the Criminal Law and Practice Statute Amendment Bill, said … That portion of the
bill which related to the punishment of offences against women and children would,
no doubt, be most open to discussion. Hon. members would, no doubt, be unanimous in agreeing that some more severe punishment than that at present in force was required.
He had heard an opinion expressed that perhaps the punishment of flogging would be inadequate to meet the case, and that it might
be necessary to adopt a more severe and summary mode of punishment. The Government,
however, thought that it would not do to move too fast, but that they should feel their way by experience. The infliction of the
punishment of flogging was peculiarly adapted to repress these crimes, because men who committed offences of that nature – who were the victims of that kind of insanity – for a species
of insanity it seemed to be – could be more readily deterred by the fear of the bodily pain consequent on a flogging, than by anything
else. Three floggings of 50 lashes each would be found a tolerably severe punishment, and he hoped would be sufficient to cope with the terrible and growing evil to which he had referred. By some means or other, a stop must be put to that class of offences, which no
doubt were gaining head in our community; and if the punishment of flogging were not adequate to do that, it would be necessary to
apply to the Legislature to sanction some more summary and decisive mode of dealing with it. Protection must be afforded to our citizens, and especially to those who were
unable to protect themselves. It would be better, however, in the first instance, to proceed experimentally, and that was the
reason why the Government were at present satisfied to ask for the sanction of the punishment of flogging.
Another portion of the bill related to the punishment of offences by boys. The Government had given the subject every consideration they could, and it was clear to them, as indeed it was to the whole community, that something must be done with those boys.
Their riotous conduct and the misdeeds they committed must be punished somehow. It was, however, necessary to draw a wide distinction between the punishment of flogging for criminals and the punishment of whipping proposed to be inflicted on boys. Not only was it just and right to draw a wide distinction, but unless that were done, the effect would be that a reaction would set in against that form of punishment for boys quite as strong as that now existing in favour of it. To provide an efficient remedy for the
particular offences complained of, he believed it would be necessary to resort to corporal punishment, but it would be seen that the Government fully recognised the importance of making the wide distinction to which he had alluded.
The distinction was important, because one of the greatest objections to corporal punish-
ment in the case of boys was that it would mark them with a criminal stigma. The House would observe that the whipping of boys was to be regulated by regulations to be
made by the Governor in Council, and under those regulations the magistrates would act, while there was a special prohibition in order
to prevent the floggings taking place where floggings for other offences were inflicted, or by the person who usually inflicted those
punishments. He believed that this would meet the objections which might be urged against this kind of punishment for boys.
They would be punished without any of the romance of going to gaol (laughter) ; summarily whipped, in fact, like boys at school.
These were the general principles of the bill.
On another occasion he should ask hon. members to consider the individual instances in which flogging or whipping should be imposed, but at present he need not do more than bring the general principles of the measure before
the House. He begged to move the second reading of the bill.
Sir JAMES McCULLOCH seconded the motion.
Mr. L. L. SMITH protested against the system of flogging boys as proposed in the bill. If boys deserved punishment, he submitted that separate confinement, with a bread and water diet, would be a more
suitable and effectual plan.
Mr. VALE was of opinion that a far more severe punishment than flogging should be inflicted for the serious offences to which the
Solicitor-General had alluded, but as public attention had been called to the matter, it would be perhaps as well to allow this part of the bill to pass. As to the sixth part of
the bill, viz., that which related to the whipping of boys, his views were utterly at variance with those of the Government. He had had
a large experience of the streets of Melbourne and the other principal towns of this country, and he had never been annoyed by the
“‘larrikins” who were so much com-
plained of. He would call attention to the fact that in the various large centres of population in the colony, both the Government and the local bodies had neglected to furnish the proper means of amusement for the young, and yet the Legislature was now asked to pass a law which
would give one man the power to brand with permanent infamy a boy of 10 years for a
M mere juvenile indiscretion, or even for playing in the streets. He protested against clause 32, which prohibited persons from assembling in the streets “to the number of two or more,” being applied to the crowded portions of the city, and to certain portions
of Prahran, Richmond, Emerald-hill, Collingwood, and Fitzroy, where the streets were the only places available for the boys to play in. For
the purposes of amusement, two boys were no company, and until the boys living in the city and in the crowded portions of the suburbs
were furnished with play-grounds of some sort he protested against the passing of a barbarous enactment like this, which would
shut them out of their only place of amusement, the streets. If the Government insisted on this punishment of whipping for
boys he trusted they would accept an amendment, to the effect that the punishment should not be inflicted for a first offence. The
Government, he contended, were proposing to inaugurate a system which would terrify our boys out of all that life and vivacity without
which they would never be worthy citizens or able defenders of the country in which they lived.
Mr. WRIXON, in reply to Mr. Thomas, stated that if a man exposed himself to a child some distance from a public place, and
did not commit a criminal offence upon it, he would be flogged for his conduct under this act.
Mr. RICHARDSON thought the first portions of the bill were an amendment on the present law, but he would not support the sixth part, dealing with whipping larrikins.
He was sorry the first measure introduced into this Parliament should be one of such a severe character, and he thought the House might devise a better system or dealing with youths than flogging them. It would be much
better to impart to them a technological education than to flog them.
Mr. WHITEMAN argued that the word ” larrikin” was only derived from a remark made in the police court by Constable Dalton, who, when asked a question, said some boys who were brought up had been larrikin that was, larking. The hon. member next described the different kinds of offences,
small and great, now brought under the meaning of the term “larrikin,” and then said that means should be taken to rid the streets of
the larrikinesses, for if the latter were kept at home he was sure there would not be so many of the boys playing about. He should
not offer any opposition to the bill, for he believed some degrees of larrikinism would be very effectually prevented by the means proposed ; at the same time, there were many of the boys and girls he had spoken of to whom it would be an indelible disgrace if they were
punished by the lash.
Mr. WALSH was of opinion that some legislation was needed in the way proposed by the act, and therefore he should support
the bill. He understood that the punishment for the lesser kinds of offences committed by youths would not be the lash but
the cane or birch, and he thought that something like 25 strokes of either of those weapons would be very effectual in putting down the
offences committed by youths. If, however, it was intended to inflict on youths the kind of punishment to be applied to older persons
guilty of grave offences, he should oppose it, for he thought that plan would be very degrading to their feelings, and not likely to reform them.
Mr. MACKAY said the bill proposed two classes of whipping, one being the whipping of adults for crimes of a gross character, and the other the whipping of juvenile offenders.
He agreed that a great deal had been made out of the term larrikin, but there was no question that in this colony there was a juvenile class of a very dangerous character, a large, number of the members of which were sent to gaols and reformatories a much larger number than should be
sent there. If the public journals had erred in exaggerating offences committed by the juvenile class, it would not do for that House to fall into the error of underrating them. There was no doubt that the
class he referred to did exist, and it could not be better dealt with than by administering such whippings as common sense showed to
be the best means of dealing with it. Magistrates had often expressed their sorrow at being obliged to deal with juveniles by sending them to prison, and not being able to act
in a summary manner with them. Imprisonment did not strike youths with the same kind of fear as a good sound whipping would
and he failed to understand that kind of feeling which did not object to whipping in the public schools, but which did object to magistrates ordering whippings. The Government did not for one moment propose to inflict such whippings on ordinary youthful
offenders as would brand them for all time to come, but they did propose to deal with juvenile offenders of a certain class in such a way as would suppress gross offences. It could not be said that punishment should not be
given because magistrates might occasionally be too severe, and they could not, because of
isolated cases of that kind, refuse to use the only proper weapon to put down youthful excesses. The bill drew a very clear distinc-
tion as to the punishment to be inflicted, and ordinary juvenile offenders would not be punished in the same manner as men guilty
of grave offences would be. There were, however, youths under 18 years of age who were guilty of gross and vile offences against de-
cency who ought to be visited with the lash in the same manner as adults might be visited with it. No doubt there might be a difference of opinion when they looked at the
details of the bill, as to what offences should be visited with the lash, and it must be remembered that some of the most gross offences, looked at in a certain light, might only be venial offences ; for instance, it might be a monstrous thing to whip a boy for throwing a stone, yet a stone might be thrown with such diabolical effect, and with such serious consequences, as to deserve a whipping, and therefore such a
question must be left to the discretion of the magistrates. It had been found impossible to deal with a large class of the young persons
in this colony otherwise than by whipping them.
Mr. L. L, SMITH.-Not at all. Give them bread and water and solitary confinement.
Mr. MACKAY would much rather see a son of his who was an offender taken from the court at once and whipped, than have him
sent to a common prison. It might be fair and wise to make a difference in the action of the law proposed, but as to the propriety of
applying severe whippings to juvenile offenders of a certain class, he thought there could
be no two opinions on that point. He hoped the House would agree on the principles of the bill, and leave it to the committee to make
such suggestions about the details as might be required.
Mr. STEPHEN, while he sympathised a good deal with the larrikins, for that reason was very glad the part of the bill referring to them had been introduced. The most important side on which to view the alteration of the law proposed was, that it would relieve the larrikins from a great deal of what they had been subjecting themselves to, namely, hard
labour and imprisonment amongst our regular criminals. The general community, also, would derive a great gain by the adoption of a
punishment which would protect them from the larrikins, while the latter would receive a punishment more suitable for them than
the present punishment of fines, which they were not able to pay, or imprisonment, which was not suitable for them or desirable either.
The bill proposed that larrikins should not be whipped by the common hangman, or in the
place where the ordinary prisoners were confined. He should like to see that part of the bill altered, so that the larrikins should not be committed to the gaol at all, but have their floggings at once. The bill, however proposed to leave the details of the flogging to the Executive, which was no doubt the best mode of dealing with it. The age of 18, he thought, was too much of an advanced age to speak of as the one up to which youths should only receive a boyish flogging, and it would be better to speak of that kind of flogging
for boys up to the ages of 14 or 15 only.
Many of the offences committed by youths were of a very grave or gross character offences involving property and malice, and, if he might say so, of pure evil intention and against decency. Some hon. members who had spoken had mostly dwelt on slight offences only, but, as he said, many of the
offences committed by the class they were referring to were of a very grave kind, and in dealing with the question they must make a
careful examination of the various offences.
When they had carefully selected those offences which boys were most likely to commit to annoy grown-up people-breaking windows or lamps, and so on-not through carelessness, but from pure mischief, they should decide that such boys should be flogged in a manner similar to what they
would perhaps be at school, without being sent away to gaol, and they should then be at once set at liberty to go amongst their fellows, and let them see how they
smarted, and how uncomfortable it was for them to walk. The hon. member concluded by stating that it would be necessary to punish youths guilty of grave offences in a
more severe manner than he had stated to be necessary for boys guilty of ordinary offences,
and said he did not think the punishment inflicted on the latter need be one producing such permanent impressions as that which would be administered to the criminal class.
Mr. LONGMORE argued that if the details were left to magistrates they would be ordering such punishment as ought only to be given to heavy criminals. It was very undesirable that respectable boys should be made liable to degrading punishments. There was a great difference between punishment inflicted by a parent and official punishment. No respectable boy could hold up his head again after being punished under the 6th section, and he hoped that clause would be struck
Mr. G. V. SMITH trusted that the Government would considerably modify the 6th clause. The lash was an admirable instrument for the punishment of those brutal and
cowardly natures which were met with in cases of assault on women and children, but the lash was not a reformer, and he should be sorry to see it applied to boys who ought
especially to be treated in a reformatory spirit.
Was larrikinism so great an evil in this city that special means of punishment should be resorted to for its suppression? He did not
believe that it was. The youths of Melbourne were not nearly so bad as the boys in the American cities, some of which were made dangerous to passengers by those lads in 1813.
He had himself been obliged to carry pistols as a protection from those young ruffians in American cities. In America, the punishment
resorted to was solitary confinement, and that was much more terrible than the lash. Many
of the criminals of the class he had referred to would have laughed at a flogging. He was persuaded that the dangers of larrikinism were altogether overrated. Most members of the Assembly, when boys, had been guilty of as grave irregularities as those fairly charge-
able against the larrikins as a rule. He believed that larrikinism was in a great measure attributable to assisted immigration, which
had brought a very bad class of mothers into this country. There was not that danger to human life from larrikins which would justify
the punishment contemplated, and he was very much opposed to it.
The motion for the second reading was then agreed to, and the bill was committed.
Several hon, members asked that the bill should not be proceeded with in committee until the following day, but Mr. Wrixon declined to assent to a postponement.
Mr. VALE suggested that the portions of the Police Offences Statute, referred to in the
second schedule, ought to be printed with the bill, to enable hon. members to understand it.
Mr. WRIXON said this would be unnecessary, as he should point out to the committee the nature of the law in connexion with every
section. If, when the committee got to that part of the bill, hon. members desired to have
before them every section in a printed form, arrangements might perhaps be made to do that.