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Wednesday, 2 November 1910


Senator ST LEDGER (Queensland) . - This clause is rather curiously constructed, and it impinges upon the practice affecting the relations existing between solicitor and client. When a jury has gone so far as to determine that an undervaluation equals 25 per cent., in the absence of evidence to the contrary it is provided that a -prima facie case of fraud shall be held to exist. It is probable that many land-owners will make their valuations with the aid of their solicitors, as is frequently done in the case of income tax returns. But under the Income Tax Acts of the States the privilege affecting the relationship of solicitor and client is respected. It is feared in this case, however, that that privilege will be taken away. The subject has exercised tha minds of members of the profession.. I have advised the Vice-President of the Executive Council, through his secretary, and he knows the quarters from which representations have been made to me. I addressed a telegram on the subject ti a solicitor, whose name I shall not mention, though I have supplied it in confidence to the Vice-President of the Executive Council. This gentleman had previously directed my attention to the subject, and I drew his attention to another aspect of it. The gentleman to whom I refer is one of the most eminent lawyers in my own State, and one who, as a constitutional authority, is equal to the very best in Australia. I asked him to consider certain points of view, and the following is the answer which I received from him -

Reyour telegram on the Land Tax Bill I much fear that in any proceedings for forfeiture the privilege of solicitor and client would fail. The evasion or attempted evasion would be a criminal action, and I rather think that - assuming the competence of the Federal Parliament to pass this measure - all communications between solicitor and client leading up to and connected with the offence would be available to the Crown, but not any subsequent communications between solicitor and client with reference to the defence of the person accused of the offence.

It is very difficult not to see the force of

I'-it anticipation. I suggest that communi- cations bond fide and honestly made between solicitor and client as to the valuation of land for the purpose of this measure ought to be protected. At present there is only this protection - that the proceedings have to reach the stage of going to a jury before an intent to commit fraud can be declared. I am inclined, on further consideration of the matter, to agree with my friend, whom I have consulted, that once that point has been reached all privilege is gone. The intent to defraud having been established by the verdict of a jury, the common law rule would prevail that the privilege attaching to communications between solicitor and client had entirely gone. The only hope one might have in such a case is that possibly the Courts might construe the ordinary meaning of the word " fraud " or " conspiracy " as not being the same as the meaning of the term " fraud " used in this clause. But, nevertheless, it may be that solicitors, when they consider this subject, will refuse to advise their clients, because, if they give advice, and their clients, acting on it, submit their valuations to the Land Tax Commissioner, the client, standing on the advice of the solicitor, may find himself, by reason of the land having been held to have been undervalued 25 per cent., brought before a jury, where a case may be found against him. In such a case the plea of privilege would not prevail. I have very eminent authority - one that I respect very much indeed - in support of my view. I am sure that the Vice-President of the Executive Council will also respect the authority to whom I allude. The only safeguards that the profession could have would be that the proceedings must go through various stages before they can reach a jury ; and, secondly, that possibly " fraud," as used in this clause, is not the kind of offence which the Court must construe as identical with " fraud " as ordinarily understood. Some solicitors, however, wish to know how they stand in this matter. Some have gone so far as to say that they will have to consider the position gravely before they will advise in matters arising under this Bill. I hope that their fears are unfounded. The Vice-President of the Executive Council might, at any rate, give some assurance as to what will be the effect of the clause in a case of the kind.







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