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Wednesday, 27 November 1935

Senator DUNCAN-HUGHES (SOUTH AUSTRALIA) - H - HUGHES. -I shall deal with that point later. It is useless for honorable senators opposite to become excited about something which does not call for excitement. The clause provides that an individual who is supposed to know something about an unlawful association may receive a notice from the Attorney-General calling on him to answer certain questions, or to furnish some information, or to produce for inspection certain documents relating generally to property and deeds with which an unlawful association is concerned. There is nothing very drastic or harmful in that. In the days of Hammurabi, about 2,000 b.c., and even long afterwards, the penalty for conspiring with the enemy would have been, briefly, death. By degrees the law has become more full and more technical, with the result that the minds of men become confused as to what it really does mean.

Senator Collings - Let us put in the death penalty, and make a job of it.

Senator DUNCAN-HUGHES - I am sure that that would not be in conformity with the wishes of the Senate, or with present day sentiment. The Opposition also objects to the onus of proof being placed on the accused person.

Senator Brown - Does the honorable senator object to that provision?

Senator DUNCAN-HUGHES - No. Sub-section 2 of the proposed new sec-' tion 30ab, provides that any person who, without just cause, proof whereof shall lie upon him, refuses or fails to answer truly and fully any questions put to him, or to furnish information or to allow documents to be inspected, or gives false information, shall be guilty of an offence. It is the person himself who causes the offence. All that he is asked to do is to furnish any information which he has in his possession relating to an unlawful association. So long as he gives the particulars and answers the questions put to him, he has nothing to fear. That is the general purport of this sub-section. I cannot see that it can adversely affect any one who has no unlawful intent, and is not bound up with an unlawful association.

Senator Brown - The police may assert that a person is connected with an unlawful association when he is not. He must prove his innocence.

Senator DUNCAN-HUGHES - There is nothing particularly drastic or reprehensible in the general terms of this proposed section. On the other question, that of proof, I often do not consider it, wise for Parliament to throw the onus on an accused person to prove his innocence. The general attitude of British law has been that a person is innocent until he is proved guilty, and while there may be cases in which it is exceptionally difficult to obtain proof, and is almost essential to place the onus of proof on the accused, this should be done with discretion, and as seldom as possible. This proposed new section, however, has been phrased to protect the accused person. If the words "without just cause, proof whereof shall lie upon him " were omitted, and the clause read " any person who refuses or fails to answer, refuses or fails to furnish information, refuses or fails to allow the inspection, shall be guilty of an offence, penalty £ 100," there would have been no safeguard whatever for the man who could show that he had " just cause " ; those words are, in effect, his protection. If a person can show "just cause," this penalty will not be enforced against him. It is a safeguard to enable a person who is not an offender, but who is suspect, to show that he had just cause for not answering, or for not furnishing information, or for not allowing the inspection.

Senator Brown - If this provision is to safeguard the innocent, why has it not been embodied in other laws?

Senator DUNCAN-HUGHES - It is quite competent for the committee to omit the words " without just cause, proof wherof shall lie upon him." But I would like to ask the honorable senator two questions: would he not prefer those words to be retained, seeing that they enable a person who is charged to show " just cause " and thereby escape the penalty ?

Senator Collings - There is no suggestion to leave out the words " just cause ".

Senator DUNCAN-HUGHES - The honorable senator would doubtless like to retain the words "without just cause" and strike out the words "proof whereof shall lie upon him". But if a person desires to obtain the benefit of this lenient provision, he should be prepared to prove that he deserves it.

Senator Sir George Pearce - Often the person charged is the only one who can supply the proof.

Senator A J McLACHLAN (SOUTH AUSTRALIA) - The provision clearly mitigates the rigour of existing sub-section 2, which provides that " any person failing or neglecting to answer a question shall be guilty

Senator DUNCAN-HUGHES - I come now to my second question to Senator Brown. If the words " without just cause, proof whereof shall lie upon him " were omitted, and the following proviso were inserted at the end of the clause : -

Provided that if such person can prove just cause he shall not be liable under this, section. would the honorable senator not be perfectly satisfied with that? He would be unwise if he were not. I do not very much like the form in which this particular proviso is framed. It does suggest that the onus of proof is thrown upon the person charged to prove his innocence. However, upon looking at the words carefully, honorable senators will find that this provision is one to enable the person so charged to have a real opportunity to answer the charge by proving "just cause ".

Senator Collings - That is this week's best joke!

Senator DUNCAN-HUGHES - It may be a joke to the honorable senator; I fail to see any humour in it. An opportunity is given to a man who is charged to clear himself. If the honorable senator prefers to take away that opportunity, he will be doing a disservice to the people whom this provision is designed to assist.

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