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Friday, 3 November 1911


Senator MILLEN (New South Wales) . - I wish to make an appeal to the Minister for the reconsideration of proposed new section 6ie. I cannot really think that, after consideration, this provision will command the assent of the Committee. The proposed new section provides that the averment of an officer is to be regarded as sufficient proof, in the absence of evidence to the contrary, of the contravention of any of the regulations relating to compulsory enrolment. That is to say, we are asked to make a radical departure from what has been described by Mr. Justice Higgins as the first principle of justice. I urge that there is no justification for making this departure in the present instance. As far as I know, there are only two cases in Commonwealth law where we have adopted the principle of calling upon the defendant to prove his own innocence. They are cases which arise under the Customs Act and under the Australian Industries Preservation Act. With regard to Customs, it was, of course, obvious from the experience of many years and of many countries, that there was sufficient justification for such a wide departure from ordinary judicial procedure. But with regard to the mere matter of compulsory enrolment, to say that when an officer makes the averment that somebody has broken a regulation that in itself should be sufficient proof of an offence, is surely going too far. We do not even know at present what the regulations which may be broken are to be. The chances are that ninety-nine out of every hundred electors will be ignorant of them when they are framed. But if an elector breaks one of these regulations it will be sufficient for an electoral officer, on taking proceedings against him by summons to make an averment, and the very accusation will be regarded as sufficient proof that the offence has been committed. I have no hesitation in saying that the proposed new section had its genesis in the Department, and not in the Ministerial mind. All officials somehow instinctively get the idea that they can be trusted with any power they choose to ask for, and that they are not likely to abuse it. They are doubtless honest in that belief. But it is one thing for officials to have such an idea and quite another thing for the Legislature to intrust them with such sweeping powers.


Senator Henderson - Is not the proposed new section intended to operate when there is no evidence for the defence?


Senator MILLEN - If I make charges against Senator Henderson-


Senator Henderson - The honorable senator has made scores of them !


Senator MILLEN - Unfortunately not before an unbiased jury, or the honorable senator would not be here now 1 If I make charges against Senator Henderson, and the case goes into a Law Court, he has the right to say, " You have made charges against me; prove them." The Court does not say, " Senator Henderson, certain charges have been made against you, and' it is now for you to disprove them." The principle of British law is that a man who makes an accusation must bring forward proof in support of it. The person accused is under no obligation to reply until the charge against him has been proved. Under this proposed new section there would be no need for the prosecution to demonstrate the truth of the charge. The accused would simply be called upon to disprove it. I urge the Committee to strike out proposed new section 6ie.

Senator FINDLEY(Victoria - Honorary Minister) (11. 10]. - I cannot agrpe to the suggestion of Senator Millen to eliminate the proposed new section. I do not think that the Committee need take too seriously the view that he has expressed. First we make provision for compulsory enrolment. We now provide that where a person has neglected to do his or her duty, unless reason can be shown to the contrary by a person whose name is not on the roll, the averment of the officer that enrolment has not taken place shall be sufficient. The person will get an intimation from the Department. Then, in order to save the person from going into the Law Courts , and having publicity given to a matter which, after all, is very small indeed, we provide that the mere statement of the officer shall be sufficient proof. .


Senator Millen - That is to say the person accused may accept a verdict of guilty.


Senator FINDLEY - If a man or woman can show that a regulation has not been contravened no prosecution will be initiated. There is no analogy between the cases cited by the honorable senator and this instance. Serious charges may be made against persons under other Acts, but in this case the charge will not be a serious one at all.


Senator Lynch - The less reason for the severity of the procedure.


Senator FINDLEY - Wherein is the procedure severe? A man or woman has lived in a district for a certain time, and will know that compulsory enrolment is the law of the Commonwealth. If a person neglects to do his or her duty by enrolling, penalties will be incurred. The accused person will have the option of showing that the law has not been broken. If that be shown the Department will not prosecute.


Senator Millen - It is not the Department, but the Court that is dealt with under 6ie.


Senator FINDLEY - Does not the honorable senator think that the Department will take certain steps before a case reaches the Court stage? The Committee may rest assured that the desire of the Department, no matter what Government is in power, will be to have as few cases brought to Court as possible.


Senator Millen - Read the first line of 6ie - " In any prosecution in any Court of summary jurisdiction." The case will have got beyond the departmental stage.


Senator FINDLEY - The honorable senator anticipates a stage. I am dealing with matters before they reach the Court stage. I believe that very few cases will ever get to court. The Department would make itself ridiculous in the eyes of the community if it brought cases to Court and could not prove its charges.


Senator Millen - The Department is not required to prove its charges. That is the whole point.


Senator FINDLEY - The proof is that the person accused ought to have enrolled and has not. It is a very small matter indeed to engage the serious attention of the Committee.


Senator Millen - Let the Department prove its case in Court in the ordinary way.


Senator FINDLEY - We want to prevent the Department having to go to Court and to involve the Government and citizens in inconvenience and unnecessary expenditure. I hope that the Committe will not eliminate the proposed new section.







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