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Thursday, 15 August 1974
Page: 988


Senator MURPHY (New South WalesAttorneyGeneral) - This is a strange debate because most of the things which are being said are correct. Who can doubt Senator Greenwood 's last statement that in the criminal law we should preserve the golden thread? I suppose that is not the first time that has been said. That famous statement from the law reports has been quoted many times and, of course, it is perfectly right.

The question here is whether the civil law offences defined in the trade practices legislation should be converted into criminal law offences. We set out believing that they ought not to be part of the criminal law. It is as simple as that. If one wishes them to be part of the criminal law, obviously there should be a provision of proof beyond reasonable doubt. The Government took the view that these offences ought not to be criminal but that there should be civil offences with civil penalties. I am quite astonished. I think that if there were to be an alteration businessmen after a while would start to complain. They would come to the Government and say: 'Why are you making criminals of us in relation to some of these areas? We can understand that you are trying to stop it and that you will penalise us, but why are you making us criminals in those areas?' If that were to happen, the answer would be: 'That is what the Opposition wished. It wished offenders to be classed as criminals. It was not content with a civil fine and a civil onus of proof. The Opposition wished to convert the offences into part of the criminal law.' It is quite clear from what the Government has done that that area is not part of the criminal law. As to how one approaches such matters, I refer again to the famous words of Mr Justice Dixon in Briginshaw v. Briginshaw. Let us be clear about what this is; it is about proof and not about penalties. Mr Justice Dixon said:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative or an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel, that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

He went on to give illustrations of this but it ought to be quite clear when, in a civil proceeding, a question arises as to whether a crime has been committed- that is the other instance which the honourable senator gave but it is not this - the standard of persuasion is according to the better opinion, the same as in other civil issues, but consistently with this opinion weight is given to the presumption of innocence and exactness of proof is expected.

We have carefully considered and carefully delineated the areas of criminality and noncriminality. What is proposed would be retrograde and would do very little. There may be some instances where what is suggested may have some effect but on the whole it would be a retrograde step to transfer this area into the criminal law. If Senator Greenwood would consult with and explain more to those who were concerned he might find that if there were such a change there would be a great deal of resentment against those who sought to transfer this area into the branch of criminal law when we have been concerned to keep it out of it.







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