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Friday, 3 November 1911


Senator ST LEDGER (Queensland) . - As I said during the secondreading debate, this provision places the whole of the electors of Australia in the same position as smugglers. Neither the Vice-President of the Executive Council nor the Minister in charge of the Bill has been able to show the slightest analogy between the measure and Acts in which a. similar provision is contained. The Minister or the officials of the Department have drawn up these provisions without any clear knowledge of the varying conditions in the different States, and of the great difficulties under which the electors in some instances labour in connexion with electoral matters. The clause gives any officer of the Department power to proceed against electors for neglecting to enroll. Under the Interpretation section of the principal Act, the word " Officer" includes any person charged with the conduct of an election, from the Chief Electoral Officer down. The doorkeeper of a polling-booth is an officer. Under the clause the doorkeeper of a polling-booth may not only institute a prosecution in a Court of summary jurisdiction, but may delegate the power of prosecuting to somebody else. We hold that offences under the Customs Act and the Australian Industries Preservation Act are so serious that the Crown should be armed with means of securing convictions, and therefore, under those Acts, the onus of proof is thrown on the defendant. But I do not think that there is power, under the Customs Act, or the Australian Industries Preservation Act, for the prosecuting officer to delegate the power of prosecution to somebody else.


Senator Chataway - I call attention to the fact that there is not a quorum present.


Senator ST LEDGER - Why the Minister is so seized with the idea that it is necessary to retain this tyrannical provision in the clause is a mystery to me. There is not the slightest justification for the provision. It seems to me that this Government is getting body, soul, and boots under the control of the departmental officials The Government officers, in their desire to make the enforcement of Acts easy, seem to have lost all instinct for natural justice. The Departments are gradually becoming one wholesale bureaucracy. I could give dozens of instances to show that that is the growing tendency.

Sitting suspended from 1.0 to 2.30 p.m.


Senator ST LEDGER - I have pointed out difficulties that may arise under this proposal, especially in the back-blocks districts of the larger States. Take the case of a drover at Winton, Queensland, who is in charge of sheep or cattle. Because he neglects to comply with regulations which he may never have seen, the policeman will be sent after him. He will then have to consider whether he shall give up his occupation in order to go to Court, or whether he shall let the Minister and the Department go to a very warm place. In the latter event, a conviction will be recorded against him. For what object? Of course, the Vice-President of the Executive Council regards this criticism with derision. Personally, I find it hard to determine whether the proposal is a subject for laughter or for tears. There is no precedent for such a thing in any law with which I am acquainted. For all offences against the person, whether the most trivial or the most severe, whether the personal or moral effects are grievous or slight, and whether the case be heard by a Court of summary jurisdiction or by the High Court itself, the onus lies upon the prosecutor to prove his case. In regard to injury to property the same rule prevails, whether the case be the larceny of a pennyworth of paper or of thousands of pounds. Every prosecutor in every Court has to make out a prima facie case and prove his charge beyond the shadow of a doubt.


Senator Givens - That is not the invariable rule. I can quote a Queensland Act in which it is not the rule - the Aboriginals Protection Act.


Senator ST LEDGER - The honorable senator must} know that that Act deals with quite exceptional cases.


Senator Givens - The honorable senator said there was no exception.


Senator ST LEDGER - The exception simply illustrates the force of a great principle. As has been pointed out by Government supporters, injury will not be done to the community because a person neglects to apply for enrolment. The injury is done to the man himself, if to anybody.


Senator Givens - Does not the honorable senator think that failure to perform the duties of citizenship constitutes an injury to the community?


Senator ST LEDGER - I do not think so. If there were penalties in all cases for neglect to perform citizen duties, whether municipal, 'State or Federal, most of us would be in gaol, especially if the proof required by the law were merely the word of an official, which was to be taken as though it were the ukase of a czar. I am by no means hide-bound to precedent. I do not think that, because a proposal is put before the Legislature for the first time, it must on that account be presumed to be injurious or dangerous. But there is something in precedent, after all. We have had about 100 years of electoral reform, leading up to adult suffrage. In every civilized country the facilities for enrolment and voting have been increased. Yet- there is not a single precedent in any country in the world for such a proposition as this. The proposal is reminiscent of the French Revolution, when the leaders professed themselves to be adherents of the highest principles of justice, order and law. They declared, " We must all be brothers," and those who would not be brothers with them they killed. They affirmed that it was necessary to establish fraternity, and they guillotined those with whom they were not inclined to be fraternal. In this case the Government say that it is necessary that all the citizens of this free country should enroll. Those who neglect to enroll they will punish. Furthermore, they will take from these citizens the natural right of being proved guilty before they are convicted and punished. Ministers never proposed such a thing when they assisted in framing previous Electoral Acts.


Senator Givens - I never before ate the same lunch as I had to-day. Would the honorable senator argue that I ought not to have eaten it because it was not the lunch I ate ten years ago?


Senator ST LEDGER - I cannot follow the analogy. If it is intended to suggest that because this proposal is novel it is good, the argument is an unsound one. It is not good because it is novel, nor is it bad for that reason. But there is neither precedent nor reason for what is proposed. None whatever. Senator Rae gave a sound warning to the Government. If our parliamentary institutions are such that people are indifferent to them, and will not perform what should be regarded as one of their greatest rights, there must be something radically wrong with Parliament and its administration. Evidently the feeling for the exercise of the franchise is weakening. We desire to strengthen it. But the Government propose to do so in a manner which is most repulsive to all Britishers. Ministers would do well either to amend this clause or throw it out of the Bill. There is not a single honorable senator opposite who can afford any justification for it.


Senator W RUSSELL (SOUTH AUSTRALIA) - We think we can.


Senator ST LEDGER - Honorable senators may console themselves with the idea that they have done so.


Senator Henderson - We think that the honorable senator's speech is not argument, but a mere jumbled-up heap of words.


Senator ST LEDGER - The honorable senator is welcome to think what he likes, and, I suppose, to express himself in the courteous fashion which is the usual refuge of so many of his colleagues. Our retort is - what possible injury is done to the community by a person's neglect to enroll ; and what justification is there for endeavouring to effect remedial measures by a penal clause which perverts the whole principle of the administration of justice in British communities, and reverts to the practice of the old French penal code ? It almost calls for an apology that one should have to stand up and insist upon this plain principle of justice. The very insistence upon it makes one more or less of a bore; but, nevertheless, it must be done. Do honorable senators realize the injustice that may be done under this provision through the negligence of officials in the back-blocks, or through their misdirected zeal in administration? A man may be required to give up his work and travel many miles to a Court, where he will be asked to establish his own case, and at every step will be presumed to be guilty. What has happened in the use or neglect of the franchise in Australia that calls for so drastic a provision in an Electoral Bill? We have been invited to believe that the card system, which was to be introduced, will be almost perfect, and I say, let us put it to the test, and if, by prosecutions in the ordinary way, the Department cannot give effect to the compulsory provisions of the Bill, the Government can then come forward with a proposal such as that now before the Committee. Before the card system is given a trial, they anticipate that it will be impossible to secure compulsory enrolment without a provision involving a disgraceful perversion of the principles of justice. Amongst a nomadic population, covering great distances, I have no doubt that this proposal will result in the persecution of many very deserving electors. If the Government do not accept the suggestion to postpone the consideration of the proposed new section, I hope the Committee will recognise the force of the objections to it, and will negative it.







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