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Tuesday, 21 May 1957


Mr POLLARD (Lalor) .- I find myself on one hand confronted with the learned opinion of my friend the honorable member for Werriwa (Mr. Whitlam) and on the other with the opinion of the honorable member for Balaclava (Mr. Joske).


Mr Osborne - What is your own opinion?


Mr POLLARD - The Minister for Air (Mr. Osborne) wants to know my opinion. He will be told my opinion in due course. I am one of the great mass of people unacquainted with the law. Let us read, word for word, the clause we are debating and see how much divides us and how the ordinary man will expect his Labour representative to cast his vote. Proposed new section 35a states - (1.) Where a person who has, or has been entrusted with, the possession, custody or control of dutiable goods which are subject to the control of the Customs -

(a)   fails to keep those goods safely; or

(b)   when so requested by a Collector, does not account for those goods to the satisfaction of a Collector, based upon reasonable grounds- " Based upon reasonable grounds " are the words that have been inserted in another place - that person shall, on demand in writing made by a Collector . . . pay to the Commonwealth . . the duty of customs.

Thieves might enter the premises in which dutiable goods are kept and steal those goods. That would be a situation over which the importer of the goods would not have absolute control. It is true that he is responsible for the security of his store, but bars on the windows and bolts and locks on the doors would not necessarily ensure security. We know that from time to time safe-crackers get into the strongest banks in this country and get away with the loot.


Mr Osborne - What has that to do with the section?


Mr POLLARD - The Minister for Air does not want me to put the position in plain words. He wants to dispose of the matter in his way; but he is not going to dispose of it as easily as that. As I have said, despite all reasonable precautions, burglars may break into a store and dutiable goods may disappear overnight. That is one illustration. There are many more I could give. If the words " based upon reasonable grounds " are deleted, an importer who, in spite of his reasonable precautions, has had his goods stolen, will be called upon to pay duty. If the collector is not satisfied, the person who has had the possession, custody or control of dutiable goods must pay the duty. If the amendment is agreed to, the collector need not be satisfied on reasonable grounds. If the words, " based upon reasonable grounds " remain, the collector's decision as to his satisfaction must be so based; if the words " based upon reasonable grounds " are removed, all that is involved is the satisfaction of the collector.


Mr Osborne - No, it is not. The honorable member did not listen.


Mr POLLARD - The Minister need not interject. If I interject when he is speaking he obviously does not like it.


Mr Osborne - The honorable member has interjected on other occasions.


Mr POLLARD - And the Minister obviously has not liked it. He must take what I am saying now. I am putting the point of view of the person who might be involved with this clause. If the collector is not satisfied, the owner of the goods will be in trouble and will be required to pay the duty. If the amendment is accepted, the collector is not to be satisfied on reasonable grounds at all. It is proposed to remove from the responsibility of the collector in making his decision the requirement that his satisfaction shall be " based upon reasonable grounds ". Some people are arbitrary: some public servants are arbitrary. Most of them are good men, but it is the responsibility of the Parliament to protect the public against the type of officer who is described as a bureaucrat. When honorable members on the Government side were in Opposition they were pleased to call all these people bureaucrats.

A collector who says that he is satisfied need not base his decision upon reasonable grounds. If the words " based upon reasonable grounds " are omitted, it is enough that he shall be satisfied. If the collector must be satisfied that the reasons advanced by the owner of goods are based upon reasonable grounds the prospect of justice being done to the citizen is greater. I should imagine that the normal collector would be happier to be required to base his judgment upon reasonable grounds. These men are supposed to be reasonable, and in most cases would be, but there are circumstances in which they could be unreasonable and act arbitrarily, even capriciously, notwithstanding the access to the courts that the Minister mentioned. The passage through the courts of an action to decide whether the owner of goods had kept them safely or accounted for them to the satisfaction of the collector would be much longer than the hearing of any matter that had to be determined by the collector upon reasonable grounds. If these words apply to the decision of the collector, the owner of dutiable goods is more likely to obtain speedy justice.

I suggest that when lawyers fall out and there is disagreement about the meaning of a provision, the benefit of the doubt should be given to the citizen. No honorable member of this chamber, whether lawyer or layman, will argue that a citizen is not more amply protected under this clause of the bill if the words " based upon reasonable grounds " remain intact.


Mr Snedden - The honorable member is wrong.


Mr POLLARD - I am expressing the view of the Opposition that if the words " based upon reasonable grounds " remain in the clause there is a greater measure of justice to the citizen. Nobody wants to see the legislation weakened. The argument put forward by the honorable member for Balaclava (Mr. Joske) that other portions of this legislation and other acts do not include the words "based upon reasonable grounds " when dealing with a situation such as that mentioned in proposed new section 35a is relevant, but it is not of grave or immediate importance. Cases of this sort do not arise every day. Matters for decision under this portion of the Customs Act or similar portions of other acts would not come up for decision frequently.


Mr Osborne - There have been only three in 57 years.


Mr POLLARD - The Minister says there have been three cases of this sort in 57 years.


Mr Osborne - Something like that.


Mr POLLARD - That situation destroys completely the argument of the honorable member for Balaclava and the Minister that, if the Minister's amendment is rejected, other portions of the legislation as well as this clause will be adversely affected.


Mr Osborne - Those three cases have settled the law on the matter.


Mr POLLARD - The decisions in three cases do not end the thing for ever. I am destroying the argument of the honorable member for Balaclava and the Minister, who have both contended that if the committee does not omit these words " based upon reasonable grounds ", effective administration of the legislation will be upset. The argument has been that it will upset not only the Customs Act, in which similar words do not appear, but also many other acts; but almost in the same breath the Minister informs the committee that there have been only three cases in 57 years!


Mr Whitlam - The section has been in the act only since 1952.


Mr Osborne - There were similar provisions in State customs acts.


Mr POLLARD - I am taking the Minister's word for it that there have been three cases in 57 years.







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