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Tuesday, 19 May 1942
Page: 1379


Mr BLACKBURN (Bourke) . - The penalty provided in this clause is inordinately severe. It is easier to prove an offence under Commonwealth legislation than it is under the New South Wales act. For instance, this clause provides that any person who makes a false or misleading statement in support of a claim, either for himself or for any other person, shall be guilty of an offence. In order to obtain a conviction under the New South Wales act it must be proved, not only that the statement was false, but that it was wilfully made. That means that the accused person must have known :it the time he made the statement that it was false. I cannot understand why the Parliamentary Draftsman, having the New South Wales act before him, omitted that provision. The clause also provides that proceedings may be commenced at any time within three years after the commission of the offence, whereas the New South Wales act provides that proceedings may be taken at any time within six months of the facts coming to the notice of the Registrar. That means that all the Commonwealth has to do is produce the document and say, " We say that this is false ; it is for you to prove that it is true, and, if you do not prove to the satisfaction of the magistrate that it is true, you shall be guilty of an offence and shall be sentenced to up to six months imprisonment, or fined up to £50 and also have to repay whatever amount the magistrate says you owe to the Commonwealth ". The burden of proof is not cast upon the accused by the act of New South Wales.


Sir Frederick Stewart - The next clause provides that the Minister must give h's consent in writing to any prosecution.


Mr BLACKBURN - -If the honorable gent lem ?n had had any experience of the way in which Ministers authorize prosecutions, he would not regard that provision as a safeguard. The Minister does not consider whether a person ought to be prosecuted : he acts on the advice of his officers. T move -

That sub-clause (3.) be loft out.

Mr. MORGAN(Reid) rin.46"). - I SUpport the contention of the honorable member for Bourke (Mr. Blackburn) that the onus of proof should not be thrown on the defendant. The corresponding section of the widows' pension legislation of New South Wales provides that before the making of a false statement is rendered punishable the act must have been wilful. Under this legislation, however, all the Crown has to do is to aver that a false statement has been made. The onus of disproof is thrown on the defendant. That is contrary to all the principles of British justice. Unfortunately, however, the tendency in Commonwealth legislation seems to be to throw the onus of proof on the defendant. That is a tendency which ought not to be countenanced especially 'where widows are concerned. It would be quite conceivable that a distracted widow could unwittingly make a false statement and thereby render herself liable to all the penalties of this provision.







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