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Wednesday, 2 November 1910

Senator PEARCE (Western AustraliaMinister of Defence) . - I think that the Leader of the Opposition has seldom been so vehement in an attempt to convince himself as he has been upon the present occasion, and with such little success. If any honorable senator were convinced by his remarks, certainly it was not Senator Millen. From his very repetitions it was plain that he was trying hard to convince himself that the sophistries to which he was giving utterance were really argument. What is the charge made against the Government in connexion with this clause? It is that we are taking an unparalleled course in laying upon the land-owner the onus of proving that his valuation is not one which was made with intent to defraud. It has been said that this is a new principle in legislation. But both the Leader of the Opposition and Senator Gould know that it is by no means new. Senator Gould, in an endeavour to throw us off the scent, quoted a section from the Australian Industries Preservation Act. But he did not quote the right section. If he will look at section 15A of the Act of 1906-1909, he will find the following : -

In any prosecution for an offence against sections 4, 7,7A,7b, or 9 of this Act, the averments of the prosecutor contained in the information, declaration, or claim, shall be deemed to be proved in the absence of proof to the contrary, but so that -

(a)   The averment in the information of intent shall not be deemed sufficient to prove such intent, and

(4)   In all proceedings for an indictable offence the guilt of the defendant must be established by evidence.

That is one case which proves that the principle which the honorable senator condemns so vehemently is not a new one in legislation. When he says that we cannot point to a similar provision in State legislation he knows perfectly well that the States possess what the Commonwealth does not, namely, a criminal code. Whenever a person is found guilty of an indictable offence against a State Land Act, the State does not need a provision in that Act to enable it to sheet home the offence, because it can have resort to its criminal code. So much for the attempt which has been made to induce the Committee to believe that there is something novel in this principle. Honorable senators also know that a somewhat similar provision to that which we are now discussing is to be found in our Customs Act. Let me come now to the attempt to make it appear that the mere proof of undervaluation of land by a land-owner to the extent of 25 per cent. will convict him of intent to defraud. That was Senator Millen's argument. Anybody who urges that, is either guilty of speaking without having read the clause, or of deliberately refusing to attach to it the only meaning which can attach to it. Sub-clause 2 reads -

Where the value stated in the return is less by 25 per centum or more than the value as found by the jury, the value shall be presumed, in the absence of evidence to the contrary, to have been understated with intent to defraud.

Two things have to be established before the defendant can be convicted of intent to defraud ; not merely one thing, as Senator Millen tried to make out. There is not only the opinion of the jury as to the value of the land, but also the finding of the jury on the evidence before it. The jury will be composed of men who know something about the value of the land. They will have evidence laid before them on which to form an opinion of that value. The prosecutor will have to bring evidence to establish his view of the value, and the defendant will likewise bring his evidence. Moreover, the jury will know when they give their verdict that if their finding is that the value given by the defendant was 25 per cent. below the value established by the prosecutor, then, unless the defendant can bring evidence to establish his innocence of intent to defraud, their finding will be equivalent to a conviction of intent to defraud. I say that any jury knowing that will be careful to come to what they believe to be a just decision as to the value. Furthermore, the Judge has not merely to take the decision of the jury. He will have something more than that before him. He will have on the one side the evidence of the prosecutor, who will endeavour to establish a case of intent to defraud. On the other hand, he will have the evidence of the defendant, who will endeavour to establish his innocence and to Show that his valuation was bond fide.Senator Gould and Senator Millen have been guilty of trying to mislead this Committee and of endeavouring by sophistical arguments to make it appear that this clause has one effect only, and that the mere fact of undervaluation will completely establish the guilt of a man who has had no opportunity of defending himself or of establishing his innocence.

Senator Millen - I did not say that.

Senator ALBERT GOULD (NEW SOUTH WALES) -Colonel Sir AlbertGould. > - That is a misrepresentation.

Senator PEARCE - A simple reading of the clause shows that not only has the defendant an opportunity of establishing the justice of his valuation before a jury of his countrymen, but he also has an opportunity of adducing evidence to prove that his valuation, wrong as it may be, was made bond fide.

Senator Millen - That does not save him.

Senator PEARCE - Yes, it does. Senator Millen well knows that the clear meaning of the clause is that, notwithstanding that the true value was 25 per cent, more than that represented by the defendant, nevertheless, if there is evidence that he made it bond fide he will not be guilty of intent to defraud. If Senator Millen denies that, he is not so intelligent as I have always given him credit for being. One has only to read the clause to see that die meaning is clear. After the inadequacy of the value has been proved, then the evidence of the absence of intent to defraud has to be declared to be inadequate before there can be a conviction ; and I say that if you establish those two things - if you first of all establish before a jury that the value is more than 25 per cent, below the real value ; and, secondly, that the valuation was not a bond fide one - there is no justification for defending men who have been guilty of a valuation so far below what, in the opinion of the jury of the defendant's countrymen, is a just and true one. If to defend men of that character is in accordance with what honorable senators opposite regard as the true mission of an Opposition in Parliament, I can only reply that the Government are prepared not only to stand by this clause, but to justify it on any platform in the country.

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