Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Thursday, 23 November 1911

Senator SAYERS (Queensland) .- The Minister has stated that as a general election usually takes place every three years, it will be after an election that an offence against the Act may be discovered ; but I would point out to him that the discovery may not take place until a week or a month after the expiration of three years from the date of the offence. I do not desire to screen any person who commits an offence against the Act, but I submit that it is not right or proper to hold a man liable for three years to a prosecution for offending against a regulation which may have been abolished or altered in the meantime. Suppose, for instance, that an honorable senator is living a couple of "hundred miles from a large town at the date of an alleged offence. If he is prosecuted at the time, he will be able to show that he should not be punished. But during a period of three years, he may leave South Australia, and go to Queensland, or vice versa. If a charge is brought against him then, how can he be expected to defend himself? When he returns to the district where the offence is alleged to have taken place, he may find that the persons on whose evidence he expected to rely are located in some other part of Australia. In the case of a serious offence, I would not object to a period of three years, or longer; but in the case of offences against the regulations, the prosecutions ought to be launched within six months, because within that period a man would very likely be able to find his witnesses. In my opinion, the Government ought to be compelled to proceed with the prosecution within six, or, at the outside, twelve months for a breach of the regulations. The commission of an indictable offence may not be discovered until a week after the expiration of three years. I do not think that if an action were taken against a man for committing a breach "of an ordinary regulation the Government would find a Bench which would punish him very severely. The only difficulty I see in such a case is that the accused person may not be able to procure his witnesses. Take the case of a man who has come from Tasmania to Charters Towers, or Croydon, or Gympie. At the general election, he does something which is said to be wrong, and afterwards he leaves the district for Tasmania. If, after the expiration of eighteen months, he is arrested in Tasmania, how is he to get his witnesses to prove that he did not commit the offence? It is quite likely that, in the meantime, they may have left the district, where it took place. The liability to be prosecuted for committing a breach of the regulation should not be allowed to hang over a man for more than twelve months. If it is going to take three years to find out whether a man is legally or illegally on the roll, I have not much faith in the card system. I did think at first that it would do a certain amount of good, and I still think that it may operate beneficially, but if the system is going to be workable at all, the Department will have to find out long before the expiration of three years whether men are legally or illegally on the roll. It will not do to wait until after a general election has been held to ascertain that. The Minister has taken credit to the Commonwealth for the great facilities which they give under the new system to electors to record their votes, but he does not say a word about the great facilities which they have taken away. The system which is being repealed was in more demand than the system which is being introduced is likely to be. It is like offering a stone to persons when they ask for bread. The Government have not yet proved that there has been any great demand for the changes which they have introduced in this measure, but I think it has been fairly proved that what they take away was badly wanted-. I believe that if a short period were substituted for the term of three years in this Bill, it would meet the case. I certainly hope the Government will see their way not to allow the possibility of being prosecuted for a trivial crime to hang over a man for three years. If a man were to get information that he is likely to be proceeded against for a breach of the regulations, his life would be a misery for that term. But, thank God, there are benches of magistrates, both honorary and paid, all over the country, who, I believe, would, if the Government attempted to put this provision in force, after the lapse of a long period, inflict a slight fine, if they did not dismiss the case with costs. I hope that, in the case of indictable offences, the Government will leave the offenders liable to prosecution within a period of three years, or more. We do not even yet know the regulations for a breach of which a man may be prosecuted under this provision, and perhaps when we do see them we shall try to repeal them. I hope that wiser counsels will prevail, and that the Government will accept an amendment.

Senator Sir JOSIAHSYMON (South Australia) [3.28]. - I rise to offer a suggestion to Ministers. This clause comes within the category of those provisions which are known as limitations - that is, provisions which are inserted in Acts imposing penalties, and so on, to limit the period within which prosecutions may be instituted' for the offences. Take, for instance, the class of offences which is technically described as offences punishable on summary conviction. There has never been in any legislation with which I am acquainted a limitation of more than .six months. Of course, with regard to serious offences like felonies, and so on - from capital crimes downwards - there is no limitation at all. Where a murder or a felony has been committed, and the man has not been discovered for some time, and there is no material on which to found a prosecution, there is no limitation, and very properly so. Offences of that kind strike at the very foundations of society, and it is proper, with a view to investigation taking place in Courts of justice, that there should be no limitation. But in regard to more or less trivial offences, I know of no instance in which prosecution is permitted after a period of six months, unless in very special circumstances warranting special legislation. The distinction which I have pointed out is embodied in the principal Act Of course, as the Minister has pointed out, we must all admit that there ought to be a fairly rigid and severe application of the penal provisions of this Bill to secure purity of elections. But the line of demarcation is clearly drawn in sections 190 and 191 of the principal Act, showing that the Legislature had clearly in mind the difference between offences punishable summarily and offences of an indictable character.

Senator Findley - We are radically altering the principal Act.

Senator Sir JOSIAH SYMON - We are not radically altering the fundamental principle upon which prosecutions for offences are based, and in respect of which they are to be punished. There are offences against the electoral law of a very grave character, in respect of which no less a limitation than three years would be desirable. But if honorable senators look at the table of electoral offences in section 182, they will find some as to which I really do not think it ought to be open to persons who might be convicted to pounce down on some of their opponents on the eve of a general election on a charge of having done certain things in connexion with the previous election. One of these offences is " Wagering on the result of any election - Penalty, not exceeding fifty pounds." A man bets a new hat on the result of an election. Under this Bill he will be liable, on the eve of the polling in connexion with the next election, three years after, to be prosecuted by somebody in respect of that offence. Is such a thing really contemplated ?

Senator Findley - That is not thinkable.

Senator Sir JOSIAH SYMON - But it is possible under this Bill. I do not think my honorable friend, the Minister, can be too severe in his animadversions against offences which undermine the purity of electoral administration. But can betting on the result of an election be said to come within that category? Many things done at election times are excusable ; some are quite inexcusable. I agree with- my honorable friend that it is not thinkable that a man should be prosecuted three years afterwards for having bet a new hat on an election. But it may be done.

Senator Findley - Hundreds of hats are lost and won over elections, and such bets are offences against the law. But whoever heard of a prosecution?

Senator Sir JOSIAH SYMON - We all ought to be anxious to make this amendment of the law as successful as possible, and we cannot be too critical about a thing like this, especially when there is a clear principle applicable in all other legislation as to various classes of offences. Look at another case. "Distributing any advertisement, hand-bill, or pamphlet published, in contravention of section 180 - Penalty not exceeding ^50, or imprisonment not exceeding one month." Why should that be treated as an indictable offence? It is difficult to regard it seriously. It cannot be intended that a charge of that kind should be hung up for three years, and then be liable to be shot at a man on the eve of another election. "Voting more than once at the same election ' ' is another offence. That is a highly improper thing, and ought to be penalized. But an offender ought not to be liable to be prosecuted three years after.

Senator Findley - Surely the honorable senator does not think that such charges would be purposely held over until the eve of a following election?

Senator Sir JOSIAH SYMON - Oh, no ; not for a moment.

Senator Millen - Not by the Department ; but an individual might hold a charge over.

Senator Sir JOSIAH SYMON - What the Minister says shows the vice of this proposal. He admits that it is " not thinkable " that a charge should be held over for three years. I suppose that, if the officials of the Electoral Office knew that a man had made a bet on the result of an election, they would not take proceedings against him. But everybody knows that great vehemence and heat are generated in connexion with elections. It is perfectly justifiable. The calmest of us are affected. Two men meet in the street. One says, " Look here, I hear that you wagered a new hat over the election three years ago. I am going to show you up, because you are on the other side." It may be partisanship ; it may be vindictiveness ; it may be playfulness of a kind. But we ought not to open the door to that kind of thing.

Senator Findley - Feelings are more likely to be bitter immediately after an election than three years later, when the bitterness will probably have been forgotten.

Senator Sir JOSIAH SYMON - But the bitterness may be revived by another election. If we pass this with our eyes open, no one can say that we were not warned about it. We have enough irritation at elections already, without affording fresh incitement to litigation. I would suggest that we should alter the clause to read - " Prosecutions for offences against this Act or the regulations which are indictable offences shall be commenced within three years - and prosecutions for offences punishable on summary conviction within six months."

Do not let us give an opportunity to disorderlyminded people to bring about litigation when there is no occasion for it. We might say that prosecutions for offences "within the meaning of section 190 " may be commenced at any time within three years after the committal of the offences. We should then draw a distinction between the two classes of offences, and might make prosecutions for offences punishable on summary conviction commenceable within six months.

Suggest corrections