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Thursday, 15 August 1912


Senator KEATING (Tasmania) . - I said yesterday that I have no quarrel with the penalties recoverable in the Courts for offences against this Bill. I see no reason fo'r the amendment. We have to bear in mind what the maximum penalty of £5°° is provided for. If the clause under consideration be passed as amended,, the section will read -

If any person appearing as a witness before the Commission refuses to be sworn or to make an affirmation, or to answer any question relevant to the inquiry put to him by any of theCommissioners, he shall be guilty of an offence.

Obviously that includes, not merely a bond fi.de refusal on the part of a witness who honestly entertains the conviction that he is not bound to answer 'a question, or that the question is not relevant, but also the other extreme case - a witness conscious of the fact that the question put to him is relevant, realizing that he is bound by law to answer it, and yet perversely, wilfully, and obstinately refusing to answer it. It is quite clear that the penalties in these ;two cases should not be the same. I have sufficient confidence, at any rate, in our. superior Courts to believe that whether a man be rich or poor, supported by a corporation or standing on his own, if he can establish to the satisfaction of the Court that there is in his refusal to answer a question no wilfulness, perverseness, or obstinacy, but a bond fide assertion of a right which he believes he has, the Court will fine him only a small amount. We might have the case, on the other hand, of a man having the support of a large financial institution to whom a fine, unless it were of a very substantial amount, would be of no great consequence. He might wilfully, perversely, and obstinately refuse to answer a relevant question, and it is necessary that in such a case there should be power to impose a very heavy penalty. It is because these offences may embrace all degrees of guilt that it is necessary to have so extreme a range of penalties, from a nominal penalty of 5s., it may be, up to the maximum of £500. I can quite conceive that in certain circumstances a fine of £500 would not be too much for an offence under this clause, and would not be felt by certain institutions. We have to bear in mind that there are such institutions in our midst, and that their interests may possibly be affected by inquiries conducted by Royal Commissions. We must provide for penalties which will be adequate to deter the authorities of such institutions from committing offences against the law. The object of imposing penalties by legislation is to deter people from disobeying the law, or to compel them to conform to it. The prospect of a fine of £5 might act as a deterrent in the case of a poor man, whilst the prospect of a fine of £500 might not have the same deterring effect upon the representatives of a large financial institution. Holding these views, it will be seen that I am not prepared to support the reduction of the penalty from .£500 to ^300. I believe that in no circumstances will anything like the maximum penalty provided for be imposed unless there is a. flagrant defiance of a Commission, and a refusal without any shadow of any justification or excuse to give the evidence asked for. I direct the attention of the Vice-President of the Executive Council to the fact that in clause 10 provision is made for the prosecution of an offence, and an alternative procedure is provided for. In the case of an offence which is not an indictable offence, and the offences we are now considering are not indictable offences, a prosecution may be instituted by action, information, or other appropriate proceeding in the High Court by the AttorneyGeneral in the name of the King, or, alternatively, it may be instituted by information or other appropriate proceeding by any person in a Court of summary jurisdiction. If the Attorney-General takes action, he must do so in the name of the King, and in the High Court, but if any private person chooses to take action, he may prosecute the accused person on information or other appropriate proceeding in a Court of summary jurisdiction. I really think that we ought not to invest any two Justices with the power to impose penalties up to ^500. I hope, therefore, that before we come to clause 10 the Vice-President of the Executive Council will consider the advisableness and practicability of submitting a provision to the effect that Justices, in imposing penalties for offences under this Bill, shall be limited to a certain maximum of, say, £50. If it is desired to impose a penalty of more than £50, the only Court that should entertain the information should be the High Court. Certainly, a Court of summary jurisdiction should not, in respect of these offences, have the same power to impose penalties as the High Court. If the course 1 suggest were adopted, minor offences would naturally be prosecuted before Justices, whilst the graver and more serious offences, in which it was proposed to establish bad faith and wilful, perverse, and obstinate conduct on the part of the defendant, would be taken to the High Court. I think that where there was reason to assume that a person charged with an offence under the Bill was actuated by proper motives, and not by a desire to wilfully flout a Royal Commission, or to disregard the law, the prosecution should take place in an inferior Court, where the costs, in the event of a conviction, would be proportionately small. But, if there is a wilful and flagrant abuse, and a contemptuous attempt on the part of the individual to disobey the law, he might be dealt with in the High Court; any defence he might have could be sifted, analyzed, and determined upon by our highest tribunal, and the penalty imposed upon him, in the event of conviction, such as would be adequate to meet the offence. It would naturally follow, also, that, in such a case, the costs involved would be very much greater than in the case of a minor offender prosecuted in the Courts of lower jurisdiction. 1 hope that the VicePresident of the Executive Council will recognise the anomaly which will exist in the Bill if we pass clause 10 as it stands. If we had some assurance from the Government that Courts- of lower jurisdiction would not be empowered to impose the maximum penalty provided for, there would not be so much need to discuss whether the penalty under this clause should be £500 or a lesser amount..







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