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Tuesday, 22 November 1960

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) .- I do not want to go into this in great detail, but I should like to point out to the committee that there is no departure at all from the general practice of the law in requiring a person to establish lawful authority, or excuse, where the offence is doing something without lawful authority or excuse. This is the regular procedure of law. There is nothing new or different in what is provided in that respect in this sub-section.

Mr Whitlam - But it is not in the old section.

Sir GARFIELD BARWICK - But the old section did not have a provision as to doing it without lawful authority or excuse. This sub-section is constructed quite differently and deals with a different situation. This sub-section intends, by the words, " without lawful authority or excuse ", to enable an officer, for example, to cover the case which the Deputy Leader of the Opposition suggests by his second amendment. It is quite a good excuse to say, "I am quite free from my duty not to disclose because it has been made public ". That is a good excuse, and there is no need to include words to cover a person in such a case. The law is not quite as silly as all that. So, there is no departure from regular standard practice in requiring the defendant to prove lawful authority where the offence is doing it without lawful authority. The commonest case, I suppose, is that in which the law provides that the man may not fish without a licence. The onus is always upon the person concerned to produce his licence. The onus is not put on the Crown to prove the negative - that he has never had one. There is no need for the second amendment proposed by the Deputy Leader of the Opposimon because what is required is fully covered by the word " excuse ".

We have heard a great deal from the Deputy Leader of the Opposition about people being discouraged by this provision from making subsequent disclosures. First of all, people could apply for permission. That is the easiest thing to do. Secondly, nothing in the amendment proposed by the Deputy Leader of the Opposition would make it any easier for such people. The Opposition has not proposed any amendment which is directed in any way to the particular matter which seems to be the main burden of the Deputy Leader's complaint.

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