Sessional_Paper_1896 — Page 639

[ii]

If the words "persistent and aggravated" are to be taken as qualify- ing "refusal to labour" as well as "idleness," the Committee are of opinion that repeated refusal to labour could not be visited with flogging under Rule 274, but that, if "refusal to labour" is not qualified by the adjectives persistent and aggravated," the Superintendents were within their powers in ordering floggings for repeated refusal to labour.

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(v) The Committee are further of opinion that, if the Government is advised that the phraseology of Rule 272 excludes repeated refusal to labour from the operation of Rule 274, it is desirable to include this offence amongst those punishable under Rule 274.

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(vi) Though the Committee cannot agree with the proposition that the words "any act of insubordination requiring to be suppressed by extra- ordinary means which occur in Rule 274 embrace "persistent and aggravated idleness" under Rule 272, yet they think that these words may be wide enough to include any repetition of the offences classified in Rule 270, other than those for the repetition of which punishment is already provided under Rules 272 and 274, notwithstanding that the special mention in Rule 274 of special classes of offences set forth in Rule 270 for the repetition of which special punishment is provided in Rule 274, seems to indicate that repetition of offences not so mentioned is excluded from the operation of Rule 274.

(vii) We consider that the words "any offence" near the beginning of Rule 275 are vague and should be replaced by more specific terms. They clearly do not cover the same ground as the words "any offence" in the second branch of the rule; if "any offence" in the second branch includes "any act of insubordination" in Rule 274 and the words "any act of insubordina- tion are to bear the liberal interpretation which has hitherto been placed on them, the Committee fail to understand to what "any offence" in the first branch of Rule 275 relates.

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(viii) The Committee consider that Rule 277 should clearly state whether the corporal punishment, allowed by it, may be inflicted by the Superintendent alone or only by him in conjunction with a Visiting Justice.

Strictly construed this rule seems to be in conflict with Rule 274 defining the Superintendent's powers of flogging and with Rule 275 defining the combined powers of the Superintendent and a Visiting Justice.

Moreover, if confined to cases in which the Superintendent alone may

inflict corporal punishment, it lends no assistance in the interpreta- tion of the words "any act of insubordination" occurring in Rule 274 because these words are repeated in Rule 277.

(ix) We think that the third section of Rule 277 should be divided into two parts, as in the Convict Prison Orders referred to in Mr. LETHBRIDGE'S evidence: otherwise an ambiguity exists as to whether the acts of insub- ordination and gross misconduct referred to are confined to those committed "when under punishment" or not.

(x) Enough has been stated to show that the construction of these rules is not free from doubt; and though we think that the officers responsible for the management of the Gaol would have done well to ask for a declara- tion of the meaning to be placed on certain terms and rules, that the primâ facie uncertainty attending their construction should have led to such action, and that it would have been better under the circumstances to have narrowed than to have widened the scope of certain terms and rules, we do not intend to cast any reflection upon the discretion exercised by such officers in the interpretation of the rules.