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Tuesday, 8 May 1973
Page: 1828


Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - I rise only because members of the Opposition do not understand the Bill. In a very helpful manner I should like to try to put them right on this clause. The way that the clause will work - and let us not get stirred up about it - is that the employee or union official who has been victimised, to use a word that paraphrases the complaints or the offences in the provision, is required to lay a charge, launch a prosecution and prove the facts. Once he is able to prove the facts it becomes, as a consequence of this amendment and not of anything which is already contained in the Act, a defence on the part of the employer to satisfy the court that:

(a)   the act or thing done or proposed to be done by the employee was or would have been unlawful under the civil or criminal law, otherwise than by reason only of its being a breach of contract of the employment; and

(b)   the conduct of the employer that is the subject of the charge was reasonably justified by reason of the unlawful nature of the act or thing referred to in paragraph (a) of the subsection.

Proposed sub-section (2B) states:

In a prosecution for an offence arising under paragraph (c) of sub-section (1A), it is a defence if the employer satisfies the court that -

(a)   the act or thing which the employer intended to dissuade or prevent the employee from doing would have been unlawful under the civil or criminal law, otherwise than by reason only of its being a breach of a contract of employment; and

(b)   the conduct of the employer that is the subject of the charge was reasonably justified by reason of the unlawful nature of the act or thing referred to in paragraph (a) of this subsection.

If employees at a particular factory decided to knock off work to listen to the Minister for Labour and decided to remain off work until they felt tired of listening to what the Minister for Labour was saying, it would mean that they would have the whole day off, in which event the employer would be able to satisfy me court that his conduct that was the subject of the charge was reasonably justified by reason of the nature of the behaviour of the employee concerned.

Much has been said by the honourable member for Moreton (Mr Killen) about this terrible reversal of the onus of proof. He is already smiling because I think that he realises that he has put his foot in it again. The honourable member for Stirling (Mr Viner) does not think it is funny because he has a very sharp, penetrating and agile mind and has already discovered that the subsection, as to which the honourable member for Moreton complained that the onus of proof was being reversed, was put into the Act by his party when it was in government. It is nothing new. That is already in the Act. I will read it to die honourable gentleman. Subsection (4.) of section 5 states:

In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge.


Mr Killen - Not in relation to this clause.


Mr Clyde Cameron (HINDMARSH, SOUTH AUSTRALIA) - Yes. This is an umbrella sub-section which applies to all those that rest within the section. That is not new. That is the section of which the honourable gentleman complained, but that section is not a section we put in the Act. It is not a section that is being injected into the Act by this Bill; it is a section that was there all the time. This section has been unaltered by the

Bill, and I read what it states:

In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved it shall . . .

So it is quite clear that the section as amended by the Bill will still place the onus upon the employee or the union official to prove all the facts and to prove all the circumstances constituting the alleged offence, and when that is done the Bill, not the Act as it now stands, gives the employer for the very first time another defence. The defence is that which is set out in proposed sub-section (2a) and sub-section (2b). I will not read them again. So the honourable gentleman is complaining about something which has been in the Act ever since 1928. It has remained in the Act ever since that time without being altered by the governments that followed its introduction by a former nationalist government, and now the honourable gentleman makes this wonderful discovery. He has now discovered that the Bill is injecting into the Act the reversal of the onus of proof, when it has been there all along. If this is the nature of the Opposition's real objection to the Bill so far, all I can say is that its objection is based upon rather flimsy ground. I know that the honourable member for Stirling, having heard that explanation, can see the point. Even though it has escaped the notice of the honourable member for Moreton I am certain that the honourable member for Stirling can see it, and I would hope that the Deputy Leader of the Opposition (Mr Lynch) can also see it.







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